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3. Aggrieved by the order of the Assessing Officer, Respondent took up the matter before the Appellate Authority, basically contending that the Assessing Officer was not justified in disallowing the expenditure of employees' contribution invoking provisions of Sec.36(1)(va). It was further contended that the ratio of the decision of the Hon'ble Apex Court in the case of 'C.I.T. v. Alom Extrusions Ltd.' [(2009) 319 ITR 306 (SC)] was not followed by the Assessing Officer. After evaluating the facts and circumstances, following the decision of the Hon'ble Apex Court in 'C.I.T. v. Vinay Cement Ltd.' [(2007) 213 CTR SC 268], the first appellate authority held that contribution towards Provident  Fund and ESI were made before the due date of filing of return and therefore the same are entitled for deduction under Sec.43B of the Income Tax Act. Therefore the addition made by the Assessing Officer in that regard was deleted.

8. It was also contended that in so far as the decision of the Hon'ble Apex Court in 'C.I.T. v. Alom Extrusions Ltd.' [(2009) 319 ITR 306 (SC)] was concerned, the issues involved  therein were with respect to the employer's contribution to the PF Account under Sec.43B, and whether the amendment brought to Sec.43B as per the Finance Act, 2003 with effect from 01.04.2004 was curative or amendatory and whether it was retrospective or prospective in operation. Therefore, learned Senior Counsel contended that the proposition of law laid down in the said judgment could not be taken to have arrived at a conclusion with regard to the payment of employee's contribution which was provided under Sec.36(1) (va) of the Act. It was also contended that the judgment of the Gujarat High Court cited supra has taken into account the judgment of the Apex Court in 'Alom Extrusions case' (supra) and found that so far as the employee's contribution was concerned, Sec.36(1)(va) r/w Explanation-1 alone was applicable and Sec.43B of the Act had no role to play at all.

14. Learned counsel for the Respondent, further contended that since Sec.43B takes in both employee's as well as employer's contribution, even if statutory deductions are made by the Respondent during the relevant deduction period, the Respondent was entitled to get deduction, if the same was tendered to the statutory authority before filing of the return under Sec.139(1) of the Act.

15. Learned counsel for the Respondent has also contended that if the shortfall on the Provident Fund or ESI Fund was deposited or made good before the filing of the return, the assessee shall be entitled to deduction under Sec.36(1)(va) in the same year. It was further contended by the learned counsel for the assessee that consequent to the deletion of the second proviso to Sec.43B of the Act with effect from 01.04.2004 by the Finance Act, 2003, which stipulated that contributions to the Provident Fund and ESI should be  made within the time mentioned under Sec.36(1)(va), was retrospective from 01.04.1989 as held in 'Alom Extrusions' (supra) and that the PF and ESI contribution received from the employees were remitted before the due date for filing of return under Sec.139 of the Income Tax Act, there shall not be any dis-allowance of the contribution so made. Learned counsel also contended that, the payments due under the aforesaid Acts were made by the assessee on or before the due date for the filing of the return and therefore they shall be entitled to deduction in the same year as rightly held by the Appellate Tribunal. In that context, learned counsel has invited our attention to the decision of the Hon'ble Apex Court in 'Alom Extrusions Ltd.' (supra) and contended that since the Apex Court held that the Finance Act, 2003 will operate retrospectively with effect from 01.04.1988 when the first proviso stood inserted, the Respondent was entitled to get deduction for the contributions of the employees received since the same were paid before the filing of the return under Sec.139(1) of the Act. Learned counsel has invited our attention to paragraph 10 of the judgment and contended that even though in the decision cited supra, the Hon'ble Apex  Court was considering the question of retrospective operation of the amendment so made to Sec.43B as per the Finance Act, 2003, the Court considered the said question after appreciating the entire scheme of the Act, as it existed prior to 01.04.1984 and therefore the application of Sec.43B read with Sec.36(1) (va) was considered by the Apex Court and in such circumstances the findings rendered thereunder is a binding precedent so far as the question considered in this case was concerned.

Therefore, according to us, since the Respondent has admittedly not paid the deduction so made within the due date as provided under Sec.36(1)(va), the Respondent was not entitled to get deduction of the amounts deducted thereunder for and on behalf of the employees.

20. In view of the reliance placed by various High Courts in 'Alom Extrusions' (supra), to arrive at a conclusion that the assessees therein were liable to pay both the  employees as well as employer's contribution on or before filing of return under Sec.139(1) only, we thought that if 'Alom Extrusions' (supra) is discussed in detail, the question raised in this case can be made clear. In paragraph 3 of the said judgment, the question considered was formulated as follows::