TMI Blog2015 (1) TMI 974X X X X Extracts X X X X X X X X Extracts X X X X ..... s' accounts in the relevant fund or funds on or before the "due date". As per the Explanation to section 36(1)(va) for the purpose of clause (x), "due date" means the date by which the assessee is required as an employer to credit the employees' contribution to the employees account in the relevant fund under the Act, rule, order or notification issued thereunder or under any standing order, award, contract or service or otherwise. Section 43B is with respect to certain deductions only on actual payment. The deletion of the second proviso to Section 43B and the amendment in the first proviso to section 43B by the Finance Act, 2003, is required to be confined to section 43B alone and the deletion of the second proviso to section 43B by the amendment pursuant to the Finance Act, 2003, cannot be made applicable with respect to section 36(1)(va) of the Act. Accordingly, all these matters are remanded to the Assessing Officer for deciding the matters afresh - Decided in favour of revenue for statistical purposes. - TAX APPEAL NO. 248 of 2007 With TAX APPEAL NO. 251 of 2007 With TAX APPEAL NO. 401 of 2007 With TAX APPEAL NO. 651 of 2007 With TAX APPEAL NO. 652 of 2007 With TAX A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as right in law in upholding that the appellant was given an opportunity to explain the transaction and no evidence was produced by the appellant? 1.3. Whether, on the facts and circumstances of the case, there was any material with the Income Tax Appellate Tribunal to uphold the addition of ₹ 6,30,314 made by the Assessing Officer ? 1.4. Whether, on the facts and circumstances of the case, the tribunal could have arrived at conclusion that the stock as on 30.4.1992 declared in the statements furnished to the Bank reflected true state of affairs ? 8. While admitting Tax Appeal Nos. 651 of 2007, 652 of 2007 and 654 of 2007, the Court had formulated the following substantial question of law:- Whether on the facts and in the circumstances of the case and in law was the Tribunal right in deleting the disallowance of belated payment of PF and ESIC, even though the specific provision in the form of proviso to section 43B of the I.T. Act existed in this regard ? 9. While admitting Tax Appeal No. 706 of 2007, the Court had formulated the following substantial question of law:- Whether the Appellate Tribunal is right in law and on facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate Insurance Contribution fund, etc., provided the sum is credited by the assessee to the employees' account in the relevant fund or funds on or before the due date under the provident Funds Act, Employees' State Insurance Act, rule, order or notification issued thereunder or under any standing order, award, contract or service or otherwise. There is no amendment in section 36(1) (va) and even the Explanation to section 36(1) (va) is not deleted and is still on the statute and is required to be complied with. Merely because the second proviso to section 43B which provided that even with respect to the employer's contribution section 43B(b), the assessee was required to credit the amount in the relevant fund under the provident Funds Act or any other fund for the welfare of the employees on or before the due date under the relevant Act is deleted. It cannot be said that section 36(1)(va) is also amended or the Explanation to section 36(1)(va) has been deleted or amended. Therefore, if the assessee has not credit the employees' Contribution to the employees' account in the relevant fund or funds on or before the due date mentioned in the Explanation to section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds maintained by the assessee to be true, correct; except finding few discrepancies in so far as inventory is concerned. 9.2 It is a settled law, as rightly held by the Tribunal, that only on account of inflated statements furnished to the banking authorities for the purpose of availing of larger credit facilities, no addition can be made if there appears to be a difference between the stock shown in the books of account and the statement furnished to the banking authorities. If, for the purpose of fulfilling the margin requirements of the bank purely on inflated estimate basis, when the stock statement had reflected inflated value of the stock, in wake of otherwise satisfactory explanation, both for the purpose of value as well as quantity, we find no reason to interfere with the order of the Tribunal. 5. The learned advocate appearing for the respondent is not in a position to dispute the same. In that view of the matter, we are of the opinion that the appeals deserve to be allowed. The question is answered in favour of the assessee and against the Revenue. The order impugned in both the Tax Appeals passed by the Income Tax Appellate Tribunal are quashed and set aside. Bot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordingly, that is, in favour of the assessee and against the revenue. The Appellate Tribunal is right in law and on facts in deleting the disallowance made under section 43B of ₹ 51,05,963/- being late payment of the employer's contribution to provident fund. The appeal is, accordingly, dismissed with no order as to costs. 13. Learned advocate for the revenue also relied on the following decisions of this Court:- (i) In the Case of ACIT Bharuch Circle v. Chetan Coach Builders Pvt. Ltd, rendered in Tax Appeal No.220 of 2007. (ii) In the case of Commissioner of Income Tax vs. Themis Medicare Ltd. rendered in Tax Appeal No.785 of 2008 with Tax Appeal No.786 of 2008. 14. Learned advocate for the assessee is not in a position to distinguish the proposition of law laid down in the decisions relied upon by learned advocate for the revenue. 15. We have heard learned advocates appearing for both the parties and perused the material on record. We have also perused the decisions relied on by the learned advocate for the revenue and find substance in the submission made by the learned advocate for the revenue that in view of the aforesaid decisions, the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X
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