JUDGMENT 1. The defect pointed out by the office is overruled. This appeal has been filed by the Revenue aggrieved by the order dated December 16, 2011, passed by the Income-tax Appellate Tribunal, Jodhpur Bench, Jodhpur ("the ITAT") in ITA No. 351/JU./2010 for the assessment year 2006-07, whereby the appeal filed by it against the order dated March 15, 2010, passed by the Commissioner of Income-tax (Appeals), Udaipur ("the CIT (A)") has been dismissed. 2. The facts in brief are that the assessee is engaged in the business of dairy product, processing and marketing of milk and milk products and cattle feed, etc. It filed its return of income for the assessment year 2006-07 on October 30, 2006, declaring total income of Rs. 9,80,723. While completing the assessment under section 143(3) of the Income-tax Act, 1961 ("the Act"), vide its order dated December 26, 2008, the Assessing Officer (AO) noticed that the assessee had deposited the payment of Rs. 14,60,412 in the provident fund and Rs. 973 in the employees' State insurance fund with delay that is the said payments were deposited after the due dates, i.e., after 15th next month and, therefore, added the said amount to the income of the assessee as per the provisions of section 36(1)(va) read with section 2(24)(x) of the Act. 3. Aggrieved by the assessment order dated December 26, 2008, the assessee filed an appeal before the Commissioner of Income-tax (Appeals), who, vide its appellate order dated March 15, 2010, after noticing certain judgments came to the conclusion that it is a settled position of law that where the payments on account of contribution to the provident fund, employees' State insurance, etc., are made within the due date of filing the return, such deductions are allowable. It was further noticed that it was not in dispute that the provident fund contribution and the employees' State insurance was deposited by the appellant before the due date of filing the return and, consequently, the Commissioner of Income-tax (Appeals) deleted the disallowance made by the Assessing Officer and granted a relief of Rs. 14,61,385. 4. It was further noticed that it was not in dispute that the provident fund contribution and the employees' State insurance was deposited by the appellant before the due date of filing the return and, consequently, the Commissioner of Income-tax (Appeals) deleted the disallowance made by the Assessing Officer and granted a relief of Rs. 14,61,385. 4. The order dated March 15, 2010, passed by the Commissioner of Income-tax (Appeals) was questioned by the Revenue before the Income-tax Appellate Tribunal and the Income-tax Appellate Tribunal by its order dated December 16, 2011, upheld the order passed by the Commissioner of Income-tax (Appeals) on the said issue, inter alia, holding that the employees' contribution is allowable, if the same is paid before the due date of return. 5. It was contended by the learned counsel for the Revenue that the Commissioner of Income-tax (Appeals) and the Income-tax Appellate Tribunal fell in error in deleting the addition made under section 36(1)(va) read with section 2(24)(x) of the Act without considering the facts and legal aspect involved therein. It was submitted with reference to section 43B of the Act that the deletion of the second proviso therein, after the amendment by the Finance Act, 2003 ; the contribution of the employer is governed by the provisions of section 43B, whereas the employees' contribution continues to be governed by the provisions of section 36(1)(va) read with section 2(24)(x) of the Act and, therefore, the Income-tax Appellate Tribunal fell in error in upholding the order passed by the Commissioner of Income-tax (Appeals). 6. The effect of the deletion of the second proviso to section 43B of the Act was considered by the hon'ble Supreme Court in CIT v. Alom Extrusions Ltd. (2009) 319 ITR 306 (SC) and it was observed at page 314 of the report as under : ". . . section 43B (main section), which stood inserted by the Finance Act, 1983, with effect from April 1, 1984, expressly commences with a non-obstante clause, the underlying object being to disallow deductions claimed merely by making a book entry based on the mercantile system of accounting. At the same time, section 43B (main section) made it mandatory for the Department to grant deduction in computing the income under section 28 in the year in which tax, duty, cess, etc., is actually paid. At the same time, section 43B (main section) made it mandatory for the Department to grant deduction in computing the income under section 28 in the year in which tax, duty, cess, etc., is actually paid. However, Parliament took cognizance of the fact that the accounting year of a company did not always tally with the due dates under the Provident Fund Act, Municipal Corporation Act (octroi) and other tax laws. Therefore, by way of the first proviso, an incentive/relaxation was sought to be given in respect of tax, duty, cess or fee by explicitly stating that if such tax, duty, cess or fee is paid before the date of filing of the return under the Income-tax Act (due date), the assessee(s) then would be entitled to deduction. However, this relaxation/incentive was restricted only to tax, duty, cess and fee. It did not apply to contributions to labour welfare funds. The reason appears to be that the employer(s) should not sit on the collected contributions and deprive the workmen of the rightful benefits under social welfare legislation's by delaying payment of contributions to the welfare funds. However, as stated above, the second proviso resulted in implementation problems, which have been mentioned herein above, and which resulted in the enactment of the Finance Act, 2003, deleting the second proviso and bringing about uniformity in the first proviso by equating tax, duty, cess, and fee with contributions to welfare funds." 7. Further, the hon'ble Supreme Court in CIT v. Vinay Cement Ltd. (2009) 313 ITR (St.) 1 (SC) while dismissing the special leave petition preferred by the Revenue against the judgment of the Gauhati High Court observed as under : "In the present case, we are concerned with the law as it stood prior to the amendment of section 43B. In the circumstances the assessee was entitled to claim the benefit in section 43B for that period particularly in view of the fact that he has contributed to provident fund before filing of the return." 8. In the circumstances the assessee was entitled to claim the benefit in section 43B for that period particularly in view of the fact that he has contributed to provident fund before filing of the return." 8. Following the observations of the hon'ble Supreme Court in Vinay Cement (supra), the Delhi High Court in CIT v. AIMIL Ltd. (2010) 321 ITR 508 (Delhi) held at page 518 as under : "We may only add that if the employees' contribution is not deposited by the due date prescribed under the relevant Acts and is deposited late, the employer not only pays interest on delayed payment but can incur penalties also, for which specific provisions are made in the Provident Funds Act as well as the Employees' State Insurance Act. Therefore, the Act permits the employer to make the deposit with some delays, subject to the aforesaid consequences. In so far as the Income-tax Act is concerned, the assessee can get the benefit if the actual payment is made before the return is filed, as per the principle laid down by the Supreme Court in Vinay Cement (2009) 313 ITR (St.) 1 (SC) ." 9. In view of the settled legal position, the appeal preferred by the Revenue has no substance and the same is, therefore, dismissed. No costs. *******