- (1.) This order shall dispose of IT Appeal Nos. 16 and 18 of 2009 as according to the learned counsel for the appellant, the issues involved in both the appeals are identical. For brevity, the facts are being extracted from IT Appeal No. 16 of 2009. This appeal has been preferred by the Revenue under s. 260A of the IT Act, 1961 (in short "the Act") against the order dt. 10th July, 2008 passed by the Income-tax Appellate Tribunal, Delhi Bench "C". New Delhi (hereinafter referred to as "the Tribunal") in ITA No. 4250/Del/2007, for the asst. yr. 2003-04, claiming the following substantial questions of law: I. Whether, on the facts and circumstances of the case, the Hon'ble Tribunal was right in law in upholding the order of the learned CIT(A) in deleting the addition of Rs. 7,46,296 made by the AO under s. 2(24)(x) r/w s. 36(1)(va) of the IT Act, 1961 on account of late payment of employees' contribution to provident fund without appreciating the fact that the payments were made beyond the due dates? II. Whether on the facts and in the circumstances of the case, the Hon'ble Tribunal was right in law in upholding the order of the learned CIT(A) in deleting the addition of Rs. 8,32,776 made by the AO on account of late payment of employer's contribution In terms of second proviso to s. 43B r/w s. 36(1)(iv) in contradistinction of the decisions of Hon'ble Kerala High Court in the case of CIT v. G.T.N. Textiles Ltd, 2004 269 ITR 282(Ker), CIT v. Jairam & Sons, 2004 269 ITR 285, CIT v. Commonwealth Trust (I) Ltd, 2004 269 ITR 290 CIT v. South India Corporation Ltd, 2000 242 ITR 114 III. Whether on the facts and in the circumstances of the case, the Hon'ble Tribunal was right in law in upholding the order of the learned CIT(A) in deleting the additions made on account of late payments to provident fund, when it has itself held in its order passed by Tribunal, 'H' Bench, New Delhi in ITA No. 2090/Del/2005 In the case of M/s. SSP Ltd., 19-DLF Industrial Area-II, Faridabad for the asst. yr. 2001-02 by relying upon the judgment of the Hon'ble Madras High Court in the case of CIT v. Synergy Financial Exchange Ltd, 2006 205 CTR(Mad) 481 that provident fund payments made after the due dates under the Provident Fund Act were not deductible in view of the second proviso to s. 43B, as it then was in force?
(2.) Briefly stated, the facts necessary for adjudication of the present appeal as narrated therein are that the assessee filed its return on 27th Nov., 2003 declaring nil income after setting off the losses. The assessment in this case was completed vide order dt. 20th March, 2006 (Annex. A-1) by the AO at a total income of Rs. 24,11,200. Feeling aggrieved, the assessee filed an appeal before the CIT(A). The CIT(A) vide order dt. 14th Aug., 2007 (Annex. A-2) partly allowed the appeal. Against the order of the CIT(A), the Revenue filed an appeal before the Tribunal. The Tribunal vide order dt. 10th July, 2008 (Annex. A-3) dismissed the appeal. Hence the present appeal by the Revenue.
(3.) We have heard the learned counsel for the appellant.;