SUDHIR AGARWAL,J. - (1.) Heard Sri R.R. Agrawal, learned Senior Advocate for appellant and Sri Piyush Agrawal, Advocate appearing on behalf of Revenue.
(2.) This is an Assessee's appeal under Section 260A of Income Tax Act, 1961 (hereinafter referred to as 'Act 1961') arising from judgment and order dated 26.10.2005, passed by Income Tax Appellate Tribunal, Lucknow Bench (S.M.C.), Lucknow (hereinafter referred to as 'Tribunal') in Income Tax Appeal no. 304/LUC/2005 relating to Assessment Year (hereinafter referred to as 'A.Y.') 200102. Though it was admitted on six substantial questions of law mentioned in Court's order dated 29.05.2009 but learned counsel for appellant stated that he is pressing this appeal only in respect to questions 4, 5 and 6 and only the aforesaid three questions need be adjudicated.
(3.) Questions 4, 5 and 6 read as under:" "(4) Whether on the facts and in the circumstances of the case, the second proviso to the Section 43B of the Income Tax Act, 1962 does not override the first proviso to the said section and hence the deduction of Rs. 2,62,418/in respect of employer's contribution to provident fund and ESI was admissible to the Assessee/appellant under the first proviso of Section 43B itself? (5) Whether the omission of the second proviso to Section 43B vide Finance Act, 2003 with effect from 01.04.2004, is curative in nature and has retrospective effect and the Assessee/appellant is eligible to claim deduction of Rs. 2,62,418/being employer's contribution to provident fund and ESI in the Assessment Year 200102 in view of such amendment? (6) Whether the provisions of Section 36 and Section 43B are mutually exclusive and the Assessee/appellant is legally entitled to claim deduction of employees' contribution to provident fund and ESI amounting to Rs. 2,84,261/under Section 43B as amended vide Finance Act, 2003, even if the said deduction was not admissible under Section 36(1) (va) of the Income Tax Act, 1962?" ;