JUDGMENT
K.K. Usha, J.
1. Reference is at the instance of the assessee. It arises from the order of the Income-tax Appellate Tribunal, Cochin Bench, in I. T. A. No. 799/(Coch.) of 1988. The relevant assessment year is 1985-86. The following are the questions referred for the opinion of this court :
” 1. Whether the Tribunal is right in law and on facts in holding that the assessee is not entitled to deductions under Section 43B of the Income-tax Act, 1961, in respect of contributions made by the assessee as employer towards provident fund ?
2. While relying on the proviso to Section 43B to disallow the assessee’s claim for deduction of the contributions made by it towards provident fund and in the light of the definition of ‘due date’ in the Explanation below Clause (va) of Sub-section (1) of Section 36, was the Tribunal right in law and on facts in construing the words ‘due date’ to mean the accounting year relevant to the assessment year under consideration ?”
2. While completing the assessment, the Assessing Officer disallowed the payment made by the assessee towards employees’ voluntary contribution, employees’ contribution, employers’ contribution and K. P. E. administrative charges under Section 43B of the Act. On appeal by the assessee, the Commissioner of Income-tax (Appeals) took the view that the amount was due to be paid only on April 15, 1985, and since it was paid on that day, Section 43B of the Act has no application in the case. On second appeal by the Revenue, the Tribunal did not agree fully with the Commissioner of Income-tax (Appeals). The Tribunal took the view that provision for contribution towards provident fund will not come under Section 43B(a), but only under Section 43B(b) of the Act. It also found that since the amount became due only on April 15, 1985, and it was also paid on that date, the assessee is not entitled to the benefit of deduction as far as employers’ contribution is concerned. Employees’ contribution amounting to Rs. 80,853, employees’ voluntary contribution amounting to Rs. 3,462 and K. P. E. administrative charges and D. L, I., it was held, would not come within the purview of Section 43B of the Act. The Tribunal, therefore, held that the assessee is entitled to get deduction in respect of the above items, since the assessee has paid the same before the due date of filing of a return provided under Section 139(1) of the Act. But, as far as the claim for deduction in respect of the employers’ contribution coming to Rs. 80,853 is concerned, the Tribunal rejected the contention of the assessee.
3. The relevant portion of Section 43B reads as follows :
” 43B. Certain deductions to be only on actual payment.–Notwithstanding anything contained in any other provision of this Act, a deduction otherwise allowable under this Act in respect of– ….
(b) any sum payable by the assessee as an employer by way of contribution to any provident fund or superannuation fund or gratuity fund or any other fund for the welfare of employees, ….
shall be allowed (irrespective of the previous year in which the liability to pay such sum was incurred by the assessee according to the method of accounting regularly employed by him) only in computing the income referred to in Section 28 of that previous year in which such sum is actually paid by him :….”
4. Learned counsel for the assessee submitted that it is true that the employers’ contribution was paid only on April 15, 1985, since that was the due date as per the provisions of the Employees’ Provident Funds Act and the Rules thereunder. But, since the amount was due for the financial year ending March 31, 1985, it is contended that the assessee is entitled to claim deduction of the above amount in its assessment for the financial year ending March 31, 1985.
5. We find that the contention raised by the assessee is not liable to be accepted in view of the specific provisions contained under Section 43B. The sum payable under Clause (b) of Section 43B can be allowed only in computing the income of that previous year in which such sum was actually paid by him. It is the year of payment that is relevant, not the year for which the contribution was payable. Even though the employers’ contribution was due for the period ending March 31, 1985, admittedly,
it was, actually paid on April 15, 1985. Therefore, the assessee cannot claim deduction in view of the provisions contained under Section 43B.
6. As far as the second question raised by the assessee is concerned, we find that during the relevant period, the second proviso to Section 43B was not available in the statute and therefore there is no necessity to consider the second proviso or the Explanation below Clause (va) of subsection (1) of Section 36.
7. In the light of the above discussion, we answer question No. 1 in the affirmative against the assessee and in favour of the Revenue. We decline to answer question No. 2.
8. A copy of this judgment under the seal of this court and the signature of the Registrar, shall be forwarded to the Income-tax Appellate Tribunal, Cochin Bench.