G. Sivarajan, J.

These two appeals are filed by the Commissioner of Income Tax (Appeals), Calicut against two separate orders of the same date 8.4.1999 passed by the Income Tax Appellate Tribunal, Cochin Bench in I.T.A. Nos.128 & 151/Coch/95 in respect of the assessment year 1991-92 and in I.T.A. Nos.205/Coch/95 in respect of theassessment year 1990-91 in the case of the very same assessee who is the respondent in both these cases. The matter arises under the Income Tax Act, 1961 (for short 'the Act'). Since common questions of law are involved in both these cases they are disposed of by this common judgment.

2. In I.T. A. No.7/2000 the appellant had formulated three questions of law and this Court ordered notice on the following three questions.

"1. Whether on the facts and in the circumstances of the case and also in view of the fact that remittance had not been made before the due date, the assessee is entitled to claim deduction of the sum of Rs. 11,25,965/- as gratuity premium?

2. Whether, on the facts and in the circumstances of the case, the Tribunal is right in law in holding that the provisions of S.43B are not applicable in respect of claim for the deduction of premium payable towards gratuity to which S.40A(7)(b) applies?

3. Whether, on the facts and in the circumstances of the case and in the light of the S.43B, a provision towards the contribution to an approval gratuity Funds is allowable under S,40A(7)(b) of the Income Tax Act?"

3. Similarly in I.T.A. No.37/2000 the appellant had raised the following six questions and this Court had ordered notice on all those questions.

"1. Whether on the facts and in the circumstances of the case and also in view of the fact that remittance had not been made before the due date, the assessee is entitled to claim' deduction of the sum of Rs.9,714/- as gratuity premium?

2. Whether, on the facts and in the circumstances of the case, the Tribunal is right in law in holding that the provisions of S.43B are not applicable in respect of claim for the deduction of premium payable towards gratuity to which S.40A(7)(b) applies?

3. Whether, on the facts and in the circumstances of the case and in the light of the S .43B, a provision towards the contribution to an approved gratuity funds is allowable under S.40A(7)(b) of the Income Tax Act?

4. Whether on the facts and in the circumstances of the case and on an interpretation of S.43B read with Explanation to Cl.(va) of S.36, the assessee is entitled to claim deduction of the contribution to the E.S.I. Fund for the assessment year 1990-91 on actual payment basis if the payment was not made before the 'due date' as defined in the Explanation to S.36(1)(va)?

5. Whether, on the facts and in the circumstances of the case, the Tribunal is right in law in holding that the 'due date' as defined in the Explanation to Cl.(va) of S.36 has application only in respect of any sum received by the assessee as contribution to the Provident Fund, E.S.I., etc. which the assessee as employer has to remit to the respective account?

6. Whether, on the facts and in the circumstances of the case, the assessee's claim for deduction is to be considered under S.43B(b) without reference to the second proviso?"

4. However, essentially the questions of law raised in both these appeals are with regard to the claim for deduction of a provision towards the contribution to an approved gratuity fund. However, in I.T. A. No.37/2000 there is one more question with regard to the claim for deduction of the contribution to the E.S.I. Fund. So far as the claim for deduction of the provision towards the contribution to the approved gratuity fund, according to the assessee, it is an allowable deduction in view of the provisions of S.40A(7)(b) of the Act. But according to the department the deduction is subject to the provisions of S.43B as per which the deduction is allowable only if the gratuity is paid within the due date for payment provided under the Payment of Gratuity Act or