Harsha Devani, J. - (1.) THIS appeal under section 260A of the Income Tax Act, 1961 (hereinafter referred to as "the Act") came to be admitted by an order dated 19.3.2008 on the following substantial question of law: - - "Whether the Appellate Tribunal is right in law and on facts in confirming the order passed by the CIT (A) in deleting the disallowance of Rs. 4,54,964/ - made by the Assessing Officer u/s. 43B of the Act in respect of the employer and employees contribution to P.F. And E.S.I. Which were made beyond the due date -
(2.) THE assessment year is 2003 -04 and the relevant accounting period is the previous year 2002 -03. The assessee, a limited company, filed return of income on 21.11.2003 showing loss of Rs. 23,54,879/ -. The Assessing Officer disallowed an amount of Rs. 4,54,964/ - under section 43B of the Act as the assessee had not made the payment of the employer's contribution and employees' contribution within the due date as prescribed under the Act. It was contended by the assessee that the payments had been made before the due date for filing of return and in view of the amendment to section 43B by the Finance Act 2003, no disallowance requires to be made. The Assessing Officer did not accept the submission of the assessee on the ground that the amendment made by the Finance Act 2003 is effective from assessment year 2004 -05, whereas the disallowance was made in assessment year 2003 -04. The assessee carried the matter in appeal before the Commissioner (Appeals), who allowed the appeal and deleted the disallowance. Revenue carried the matter in appeal before the Income Tax Appellate Tribunal (hereinafter referred to as "the Tribunal"), which confirmed the order of the Commissioner (Appeals) to the extent of deletion of disallowance made under section 43B amounting to Rs. 4,54,964/ -. Mr. Nitin Mehta, learned Senior Standing Counsel for the appellant submitted that the question as formulated by this court is in two parts, one relates to disallowance in respect of the employer's contribution to PF and ESI and the other relates to the employees' contribution. It was submitted that insofar as the controversy relating to first part of the question, viz., the employer's contribution is concerned, the same stands concluded in favour of the assessee by the decision of the Supreme Court in the case of Commissioner of Income Tax Kolkatta -III v. Alom Extrusions Limited, : (2009) 319 ITR 306 (SC), whereas insofar as the controversy involved in the second part of the question, viz. Employees' contribution is concerned the same stands concluded in favour of the revenue by the decision of this court in Commissioner of Income Tax -II v. Gujarat State Road Transport Corporation, : (2014) 366 ITR 170.
(3.) DESPITE service of notice of admission, there is no appearance on behalf of the respondent -assessee.;