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JUDGMENT A.K. Menon, J. - This order disposes of the above two appeals under Section 260A of the Income Tax Act, 1961 ('the I.T. Act) which involve common questions of law, which read as under:- "(1) Whether the decision of the ITAT ignoring the provisions of section 2(24)(x) r/w. 36(1)(va) as per which employee's contribution to ESI, PF and Pension fund is deductible only if payment is made before the due date as prescribed in the respective Act, Rule, Order or Notification governing such funds is erroneous and contrary to provisions of Income Tax Act, 1961 ? (2) Whether on the facts and circumstances of the case and in law, the Tribunal was right in ignoring the clear distinction between employee's contribution to ESI, PF and pension fund and employer's contribution and the fact that the decision of the Hon'ble Supreme Court in the case of Alom Extrusions Ltd. 319 ITR 306 is applicable only to employer's contribution ? (3) Whether on the facts and circumstances of the case and in law, the Tribunal was right in holding that payment of employees contribution to PF/ESI/pension fund is subject to provisions of section 43B of the Act ? (4) Whether the ITAT failed to appreciate the fact that the amendment to section 43B is applicable only to employer's contribution and not to employees contribution and hence, whether second proviso to section 43B omitted w.e.f. 01-04-04 is retrospective or not, is not germane to issue of employee's contribution ?" 2. At the outset, Mr.Vimal Gupta, learned Senior Counsel appearing on behalf of the Appellant submitted that the Appellant is not pressing question No.1. It is, therefore, not necessary to answer the same. 3. The appeals as filed pertain to orders passed by the Income Tax Appellate Tribunal, Pune 'A' Bench on 29th July, 2011 in Income Tax Appeal No.340/PN/10 in respect of assessment year 2003-04 and Income Tax Appeal No.341/PN/10 in respect of assessment year 2004-05. 4. The facts being similar, we will refer to the facts pertaining to Income Tax Appeal No.1002 of 2012 in respect of A.Y.2003-04. The assessee had filed a return of income declaring a total loss of Rs.1,88,71,600/- on 27th November, 2003. A Notice came to be…

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