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5. So far as the contribution to the approved gratuity funds are concerned, section 36(1)(v) categorically provides that, in computation of profits and gains from business and profession, deduction shall be allowed in respect of "any sum paid by the assessee, as an employer, by way of contribution towards an approved gratuity fund created by him for the exclusive benefit of his employees under an irrevocable trust". Section 2(5) defines "approved gratuity fund" as "a gratuity fund which has been, and continues to be, approved by the Principal Chief Commissioner, Chief Commissioner, Principal Commissioner or Commissioner of Income Tax in accordance with the rules contained in Part C of Third Schedule to the Income Tax Act". Rule 3 of Part C of Third Schedule deals with the conditions for the approval, which, for ready reference, are reproduced below:

"Conditions for approval.
3. In order that a gratuity fund may receive and retain approval, it shall satisfy the conditions set out below and any other conditions which the Board may, by rules, prescribe--
(a) the fund shall be a fund established under an irrevocable trust in connection with a trade or undertaking carried on in India, and not less than ninety per cent of the employees shall be employed in India ;
(b) the fund shall have for its sole purpose the provision of a gratuity to employees in the trade or undertaking on their retirement at or after a specified age or on their becoming incapacitated prior to such retirement or on termination of their employment after a minimum period of service specified in the rules of the fund or to the widows, children or dependants of such employees on their death;

7. Having observed so, we may also mention that quite interestingly, under rule 8(1), while the trustees may appeal against the approval being declined or approved being withdrawn, there is no appellate remedy against the date from which the approval is to take effect, even though, as evident from the facts of this case, serious prejudice may be caused to the assessee employer on account of grant of approval with effect from a date later than the date on which the trust is created. To quote the oft quoted words of Lord Justice Denning in the case of Seaford Court Estates Ltd. vs. Asher (1949) 2 All ER 155 at p. 164 : "......when a defect appears, a Judge cannot simply fold his hands and blame the draftsmanship. He must set out to work on the constructive task of finding the intention of Parliament..... and then he must M/s. Prakash Software Solution Pvt Ltd vs. ITO A.Y. 2010-11 supplement the written word so as to give "force and life" to the intent of legislature...... A Judge should ask himself the question how, if the makers of the Act had themselves came across this ruck in the texture of it they would have straightened it out? He must do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases." In many cases, embarking upon such a voyage to discover the legislative intent may not really be workable for a variety of reasons but given the fact that it is a non-appealable decision of the Commissioner and it is not only contrary to the scheme of the Act but is causing wholly unjust prejudice to the taxpayer, we have, on these facts, no hesitation in holding that the date on which approval is to take effect can only be the date on which fund is created or the date on which the terms of funds are altered to meet the requirements of rule 3- which does not apply to this fact situation. One can understand that such a denial of deduction for contribution to the gratuity fund to the employer assessee is inevitable, and is on account of the lapses of trustees, when terms and conditions of the gratuity fund are altered, to meet the requirements of Part C to Third Schedule to the Income Tax Act, and such situation fully justify the approval being granted effective from the date on which the conditions are so altered. In our humble understanding, it is mainly this eventuality which justifies the date of approval being later than the date on which the fund is created. In a situation in which the terms and conditions of the fund, established under the irrevocable trust, are the same as the terms and conditions on the basis of which such a fund was set up, there cannot be, in our humble understanding, any justification for the effective date of approval being a date later than the date on which the said fund was set up. In any case, no such justification has been set out in the order nor made out by the learned Departmental Representative.