TMI Blog2012 (6) TMI 681X X X X Extracts X X X X X X X X Extracts X X X X ..... was available before the AO even during the remand proceedings the assessee has fully discharged his burden to the extent of one sub-contractor - partly in favour of assessee. Disallowance being employer’s contribution to provident fund - Held that:- As decided in CIT Versus AIMIL Limited and others [2009 (12) TMI 38 (HC)]that if the employee’s share of contribution is paid before the due date of filing of the return u/s 139(1), then no disallowance can be made - as the assessee has deposited the amount of PF before the end of the financial year 2002-03 i.e. much before the due date of filing of the return - in favour of assessee. Charging interest u/s 234B and 234D - Held that:- As the issue was not objected by the Ld. DR. AO is directed to allow consequential relief in respect of levy of interest - in favour of assessee. - ITA No.1801/Mum/2010 - - - Dated:- 11-4-2012 - Dinesh Kumar Agarwal, N K Billaiya, JJ. For Appellant: Shri Milin Mehta For Respondent: Mrs.Usha Nair ORDER Per: Dinesh Kumar Agarwal: This appeal arises as a result of order passed by the Tribunal in MA No.523/Mum/2011 arising out of ITA No.1801/Mum/2010 for the assessment year 2003 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al, the Ld. CIT(A) while observing that the assessee has failed to reconcile the differences pointed out during the assessment proceedings even before me, confirmed the above additions made by the AO. 7. At the time of hearing, the Ld. Counsel for the assessee while reiterating the same submissions as submitted before the AO and the Ld.CIT(A) refers reconciliation statement appearing at pages 55-79, ledger account of M/s Satish Construction appearing at page 82 and relevant pages of written submissions filed before the Ld. CIT(A) appearing at pages 133-137 of the assessee paper book. The extract of the same is reproduced as under : S. No. Name of Party Balance Per Appellant (Rs.) As per 133(6) (Rs.) Difference (Positive) (Rs) Difference (Negative) (Rs) Submission 1. Essco Sanitation Ltd. (Purchases) 1,45,903/- 1,24,566/- 21,337/- Bill No. ISPL00573 dated 27.4.2002 amounting to Rs.21,337/- was not included by the party. The said bill pertains to Nerul site of the appellant. It may also be mentioned that the amount of Rs.21,337/- was not paid to the said party and was written back ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esting of 30 HP motor amounting to Rs.44,765/-. 11. Advance Traders 4,44,870/- 4,62,813/- (17,943) The difference has arisen because of octroi and transportation charges and rate difference. TOTAL 6,48,885/- (167,654) He, therefore, submits that in the light of the above, the assessee has fully explained the difference pointed out by the AO. He further submits that all the payments were made by account payee cheques, TDS has been deducted and in any case the difference is very minor i.e. 0.88% of the total purchases including labour charges of Rs.9,26,80,276/-, therefore, the additions made by the AO and sustained by the Ld.CIT(A) be deleted. 8. On the other hand, the Ld.DR while relying on the order of the AO and the Ld.CIT(A) submits that since the assessee s reconciliation statement has not been considered by the AO and the ld. CIT(A), therefore, in the interests of justice the issue may be set aside to the file of he AO. 9. We have carefully considered the submissions of the rival parties and perused the material available on record. We find that there is no dispute that the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teralia submitted that the party M/s Mayan Handicrafts has duly replied to the inquiry letter sent by the AO and in support he has also filed the confirmation letter of the party appearing at pages 99 and 101 of the assessee s paper book. The ld. CIT(A) called for the remand report of the AO. In the remand report dated 5.1.2010 appearing at pages 165 and 166 of the assessee s paper book, the AO while observing that he has not received any reply from the said party directly and exact amount of work has not shown submitted that the issue may be decided on merit. The Ld.CIT(A) after considering the assessee s submissions and the remand report of the AO while observing that the assessee has failed to prove genuineness of the transactions, upheld the addition made by the AO. 12. At the time of hearing, the Ld.Counsel for the assessee while reiterating the same submissions as submitted before the AO and the Ld. CIT(A) further submits that the it seems that the parties Shri Devji Laxman Rs.1,99,864/-, M/s Sachin Construction Rs.3,55,622/- and Hariom Rs.3,74,102/- have left, therefore, the same could not be produced. However, the party Mayan Handicrafts Rs.10,52,600/- has filed confirmat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... employee s contribution to provident fund on the ground that the same is not paid before the due date prescribed under the relevant statutes. 17. The brief facts of the above issues are that the AO noted that the assessee has not made the payment of Rs.41,616/- being employees contribution towards PF and Rs.38,714/- being employees contribution of PF within the grace period and hence he disallowed the same. On appeal, the ld. CIT(A) following the decision of the Hon ble Jurisdictional High Court in the case of CIT V/s Pamvi Tissues (2009) 313 ITR 137(Bom); 215 CTR 150 (Bom) and CIT V/s Godavari Manohar Sahakari Sakhar Kharkhana (2008) 298 ITR 149 (Bom) upheld the disallowance made by the AO. 18. At the time of hearing, Ld.Counsel for the assessee submits that this issue is covered in favour of the assessee by the decision of the Hon ble Supreme Court in the case of CIT V/s Vinay Cement Ltd. (2009) 313 ITR (St) 1 (SC); (2007) 213 CTR (SC) 268 . 19 On the other hand, the Ld.DR support the order of the AO and the Ld.CIT(A). 20. Having carefully heard the submissions of the rival parties and perusing the material available on record we find that the facts are not in dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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