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section (1) of section 36 and where such sum has been made otherwise that in cash, the sum has been realised within 15 days from the due date. By the Finance Act, 2003, the second proviso to section 43B of the Act has been deleted and th first proviso to section 43B has also been amended which is reproduced herein above. Therefore, with respect to the employer's contribution as mentioned in clause (b) of section 43B, if any sum towards the employer's contribution to any provident fund or superannuation fund or gratuity fund or any other fund for the welfare of the employees is actually paid by the assessee on or before the due date applicable in his case for furnishing the return of the income under sub-section (1) of section 139, the assessee would be entitled to deduction under Sec.43B on actual payment and such deduction would be admissible for the accounting year. However, it is required to be noted that as such there is no corresponding amendment in section 36(1)(va). Deletion of the second proviso to section 43B, vide the Finance Act, 2003, would be with respect to section 43B and with respect to any sum mentioned in section 43B(a) to (f) and in the present case, the employer's contribution as mentioned in section 43B(b). Therefore, the deletion of the second proviso to section 43B and the amendment in the first proviso to section 43B by the Finance Act, 2008 is required to be confined to Section 43B alone and the deletion of the second proviso to section 43B, vide the amendment pursuant to the Finance Act, 2003, cannot be made applicable with respect to section 36(1)(va) of the Act. Therefore, any sum with respect to the employees' contribution as mentioned in section 36(1)(va), the assessee shall be entitled to the deduction of such sum towards the employees' contribution if the same is deposited in the accounts of the concerned employees and in the concerned fund such as provident fund, ESI contribution fund, etc., provided the said sum is credited by the assessee to the employees' accounts in the relevant fund or funds on or before the "due date"

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.

"any sum received by the assessee from his employees as contributions to any provident fund or superannuation fund or any fund set up under the provisions of the Employees' State Insurance Act, 1948 (34 of 1948), or any other fund for the welfare of such employees."

19. Therefore, income of the assessee includes any sum received by the assessee from his employee as contribution to any Provident Fund or superannuation fund or funds set up under the provisions of the Employees' State Insurance Act, 1948 (34 of 1948) or any other fund for the welfare of such employees. According to us, on a reading of Sec.36(1)(va) along with Sec.2(24)(x), it is categoric and clear that the contribution received by the assessee from the employee alone was treated as income for the purpose of Sec.36(1)(va) of the Act and therefore we are of the considered opinion that the assessee was entitled to get deduction for the sum received by the assessee from his employees towards contribution to the  fund or funds so mentioned only if, the said amount was credited by the assessee on or before the due date to the employees account in the relevant fund as provided under Explanation 1 to Sec.36(1)(va) of the Act. According to us, so far as Sec.43B (b) is concerned, it takes care of only the contribution payable by the employer/assessee to the respective fund. Therefore, in that circumstances, Sec.36(1) (va) and Sec.43B(b) operate in different fields i.e. the former takes care of employee's contribution and the latter employer's contribution. The assessee was entitled to get the benefit of deduction under Sec.43B(b) as provided under the proviso thereto only with regard to the portion of the amount paid by the employer to the contributory fund. Such an understanding of Sec.43B is further exemplified by the phraseology used in the proviso, which reads thus:

26. Therefore, in our view, when Sec.43B as it stood prior to the amendment and Sec.36(1)(va) Explanation 1 thereto r/w Sec.2(24)(x) are considered together, it is clear that they operate in different fields. So far as the employee's contribution received is concerned, it should have been paid on or before the due date prescribed under the relevant statutes. Then again the learned counsel contended that on a reading of Sec.43B(b), any sum "payable by the assessee as an employer" by way of contribution to any provident fund meant payment of both employees contribution and employer's contribution, by the employer and therefore the assessee was  entitled to pay both contributions together on or before the filing of the return under Sec.139(1) of the Act. We are unable to accept the said contention advanced by the learned counsel. If such a contention is accepted, that would make Sec.36(1) (va) and the Explanation thereto otiose. According to us, there was no indication in Sec.43B as it stood prior to the amendment and thereafter also to deface Sec.36(1)(va) and the Explanation thereto from the Income Tax Act. Thus, it means that both provisions are operative and the contributions have to be paid in accordance with the mandate contained under Sec.36(1)(va) and Explanation thereto and under Sec. 43B, respectively.