Where the PF and/or EPF, CPF, GPF, etc., if paid after the due date under respective Acts but before filing of the return of income under section 139(1), cannot be disallowed under section 43B or under section 36(1)(va) of the Income-tax Act.

1. - These Income-tax appeals under section 260A of the Income-tax Act, 1961 (for short, "the IT Act") are directed against the order of the Income-tax Appellate Tribunal, Jaipur (for short, "the ITAT") in I.T.A. No. 359/JP/2006, I.T.A. No. 358/JP/2006 and I.T.A. No. 825/JP/2008, dated April 30, 2010, April 30, 2010, and August 24, 2009, respectively, for the assessment years 2002-03, 2001-02 and 2002-03, respectively.

2. Since the controversy involved is identical, these Income-tax appeals are being decided by this common order.

3. The appeals were admitted on the following substantial question of law :

Substantial question of law in the case of State Bank of Bikaner and Jaipur (DB I.T.A. Nos. 177 of 2011 and 272 of 2011)

"Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was justified in deleting the addition made on account of depositing the PF payment beyond prescribed time, despite the fact that as per section 36(1)(va) employee's contribution should have been deposited in time ; and section 43B permits delayed payment as regards the employer's contribution and not the employee's contribution ?"

Substantial question of law in the case of JVVNL (DB I.T.A. No. 189 of 2011).

"Whether, in the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was justified in law in deleting the addition made by the Assessing Officer on account of delay in deposit of the employees' contribution to PF under section 36(1)(va) ?"

4. The brief facts, as emerging on the face of record, are that the respondent-assessees are being assessed to Income-tax from year to year and the assessment stood completed originally under section 143(3) of the Income-tax Act in the case of SBBJ and notice under section 154 was issued, as the Assessing Officer felt that there is a mistake apparent on the face of record.

5. In the case of the respondent-assessee-JVVNL assessment was completed under section 143(3) of the Income-tax Act and, thereafter, the respondent proceeded before the appellate authorities.

6. The issue in short is that it came to the notice of the Assessing Officer that the respondent-assessees, though made payment of provident fund account (PF) and/or EPF, CPF, GPF but it was deposited beyond the prescribed time limit under those Acts and, accordingly, the Assessing Officer disallowed the same. However, it may be observed that in so far as the case of the respondent-assessee-SBBJ is concerned, even the Assessing Officer has not chosen to mention under which provision of law the claim has been disallowed on account of the above facts, however, the Commissioner of Income-tax (Appeals) (for short, the ("the CIT(A)") as well as the Income-tax Appellate Tribunal have clarified that the amount was disallowed under the provisions contained under section 43B.

6. 1 In so far as the case of the respondent-assessee-JVVNL is concerned, the Assessing Officer has certainly observed that the amount is being disallowed under the provisions of section 43B of the Income-tax Act.

7. It was contended by the respondent-assessee-SBBJ before the Assessing Officer that the payment was made before the due date of filing of the return of income and, accordingly, as per the provisions of section 43B of the Income-tax Act, the claim was allowable. It was submitted that there is no mistake apparent on the face of record and alternatively the issue, being debatable, will not come within the purview of section 154 of the Income-tax Act. However, the Assessing Officer did not agree with the contention raised by the respondent-assessee and disallowed the amount as, according to him, the payments were made beyond the due date as prescribed under the relevant Act of PF, etc., and once the payment was made beyond the prescribed time, then the amount had to be disallowed.

7. 1 In the matter of the respondent-assessee-JVVNL as well, it was submitted that there is an amendment under section 43B of the Income-tax Act wh