JUDGMENT Harsha Devani, J. 1. This appeal under section 260A of the Income Tax Act, 1961 (hereinafter referred to as "the Act") came to be admitted by an order dated 19.3.2008 on the following substantial question of law:-- "Whether the Appellate Tribunal is right in law and on facts in confirming the order passed by the CIT (A) in deleting the disallowance of Rs. 4,54,964/- made by the Assessing Officer u/s. 43B of the Act in respect of the employer and employees contribution to P.F. And E.S.I. Which were made beyond the due date?" 2. The assessment year is 2003-04 and the relevant accounting period is the previous year 2002-03. The assessee, a limited company, filed return of income on 21.11.2003 showing loss of Rs. 23,54,879/-. The Assessing Officer disallowed an amount of Rs. 4,54,964/- under section 43B of the Act as the assessee had not made the payment of the employer's contribution and employees' contribution within the due date as prescribed under the Act. It was contended by the assessee that the payments had been made before the due date for filing of return and in view of the amendment to section 43B by the Finance Act 2003, no disallowance requires to be made. The Assessing Officer did not accept the submission of the assessee on the ground that the amendment made by the Finance Act 2003 is effective from assessment year 2004-05, whereas the disallowance was made in assessment year 2003-04. The assessee carried the matter in appeal before the Commissioner (Appeals), who allowed the appeal and deleted the disallowance. Revenue carried the matter in appeal before the Income Tax Appellate Tribunal (hereinafter referred to as "the Tribunal"), which confirmed the order of the Commissioner (Appeals) to the extent of deletion of disallowance made under section 43Bamounting to Rs. 4,54,964/-. 3. Mr. Nitin Mehta, learned Senior Standing Counsel for the appellant submitted that the question as formulated by this court is in two parts, one relates to disallowance in respect of the employer's contribution to PF and ESI and the other relates to the employees' contribution. 4,54,964/-. 3. Mr. Nitin Mehta, learned Senior Standing Counsel for the appellant submitted that the question as formulated by this court is in two parts, one relates to disallowance in respect of the employer's contribution to PF and ESI and the other relates to the employees' contribution. It was submitted that insofar as the controversy relating to first part of the question, viz., the employer's contribution is concerned, the same stands concluded in favour of the assessee by the decision of the Supreme Court in the case of Commissioner of Income Tax Kolkatta-III v. Alom Extrusions Limited, (2009) 319 ITR 306 (SC), whereas insofar as the controversy involved in the second part of the question, viz. Employees' contribution is concerned the same stands concluded in favour of the revenue by the decision of this court in Commissioner of Income Tax-II v. Gujarat State Road Transport Corporation, (2014) 366 ITR 170. 4. Despite service of notice of admission, there is no appearance on behalf of the respondent-assessee. 5. As can be seen from the order passed by the Assessing Officer, the disallowance under section 43B of the Act relates to the amount of employees' contribution as well as to the amount of employer's contribution, both of which have been disallowed on the ground that the same have not been submitted within the period prescribed under the Act. However, it is an admitted position that the payments have been made before the due date of filing of return. 6. Insofar as the employer's contribution to PF and ESI is concerned, the Supreme Court in the case of Commissioner of Income Tax, Kolkata-III v. Alom Extrusions Limited (supra) has held that the proviso to section 43B of the Act which came to be introduced with effect from 1.4.2004 is retrospective in operation. The proviso to section 43B provides that nothing contained in this section shall apply in relation to any sum which is actually paid by the assessee on or before the due date applicable in his case for furnishing the return of income under sub-section (1) of section 139 in respect of the previous year in which the liability to pay such sum was incurred and the evidence of such payment is furnished by the assessee along with such return. In the present case, the assessee having actually paid the amount of employer's contribution before the due date for furnishing the return of income, the Tribunal was justified in deleting the disallowance made by the assessing officer under section 43B of the Act. 7. Insofar as the employees' contribution is concerned, this court in the case of Commissioner of Income Tax II v. Gujarat State Road Transport (supra) has held that considering section 36(1)(va) of the Act read with sub-clause (x) of clause (24) of section (2), with respect to the sum received by the assessee from any of his employees' to which provisions of sub-clause (x) of clause (24) of section (2) apply, the assessee shall be entitled to deduction in computing the income referred to in section 28 with respect to such sum credited by the assessee to the employees' account in the relevant fund or funds on or before the "due date" mentioned in explanation to section 36(1)(va) of the Act. The court held that the Tribunal, therefore, erred in deleting disallowances being employees' contribution to PF account/ESI account made by the Assessing Officer as such sums were not credited by the respective assessee to the employees' accounts in the relevant fund or funds on or before the due date as per explanation to section 36(1)(va) of the Act, that is, the due date by which the concerned assessee was required as an employer to credit the employees' contribution to the employees' account in the provident fund under the Provident Funds Act and/or to ESI fund under the ESI Act. Under the circumstances, the assessee was not entitled to deduction under section 43B of the Act in relation to employees' contribution to PF and ESI which was not paid by the due date as per the Explanation to section 36(1)(va) of the Act. The impugned order of the Tribunal to the extent the same deletes the disallowance in relation to the employees' contribution to PF and ESI, therefore, cannot be sustained. 8. The first part of the question is accordingly answered in affirmative, viz., the Tribunal was justified in deleting the disallowance of employer's contribution to PF and ESI. The second part of the question is answered in the negative, viz. the Tribunal was not justified in deleting the disallowance to the extent of the employees' contribution to PF and ESI. 8. The first part of the question is accordingly answered in affirmative, viz., the Tribunal was justified in deleting the disallowance of employer's contribution to PF and ESI. The second part of the question is answered in the negative, viz. the Tribunal was not justified in deleting the disallowance to the extent of the employees' contribution to PF and ESI. The appeal is accordingly partly allowed by setting aside the impugned order passed by the Tribunal to the extent of deletion of disallowance of the amount of employees' contribution under section 43B of the Act.