TMI Blog2016 (12) TMI 1787X X X X Extracts X X X X X X X X Extracts X X X X ..... rs, deserve to be deleted. Disallowance made u/s 36(1)(va) of the Act in respect of Employees Contribution to Provident Fund - delayed remittances - HELD THAT:- The said provident fund dues for July 2008 was remitted by the assessee on 16.8.2008 as against the due date of 15.8.2008 and since 15th August happened to be a bank holiday, the same was remitted on the immediately succeeding working day. Hence the same is allowable as deduction. He also argued that since the same was remitted before the end of the previous year, the same is allowable as deduction in the light of decision of the Hon ble Jurisdictional High Court in the case of CIT vs Coal India Ltd [ 2015 (8) TMI 1451 - CALCUTTA HIGH COURT] Disallowance u/s 14A read with Rule 8D - HELD THAT:- This tribunal had already held in the case of REI Agro Ltd vs DCIT [ 2013 (9) TMI 156 - ITAT KOLKATA] confirmed by HC [ 2014 (4) TMI 713 - CALCUTTA HIGH COURT] wherein it was held that only dividend bearing investments are to be considered for computing disallowance u/s 14A of the Act read with Rule 8D of the Rules. We find that the Circular of CBDT relied upon by the ld DR is binding only on the revenue authorities and n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee stated that the original assessments for the Asst Years 2007-08 2008- 09 were completed u/s 143(1) of the Act and time limit for issuance of notice u/s 143(2) of the Act had expired as on the date of search. Hence those years would fall under the category of unabated assessments and hence the income assessed originally thereon could not be disturbed unless there is any incriminating material found in the course of search relatable to those assessment years. It was argued that admittedly no incriminating materials were found for those assessment years in the course of search and accordingly pleaded not to disturb the originally assessed income. The ld AO however did not heed to the contentions of the assessee and proceeded to frame the assessments u/s 153A of the Act by making regular disallowance of expenses on the plea that the assessments to be framed u/s 153A of the Act clears all the decks and would enable the ld AO to assess or reassess the total income as per the provisions of the Act irrespective of incriminating materials found in the search. This action of the ld AO was also confirmed by the ld CITA. Aggrieved, the assessee is in appeals before us. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry or other valuable article or thing and such assets represents either wholly or partly income or property which has not been , or would not be, disclosed for the purposes of the Act (hereinafter referred to as the undisclosed income or property) ; then the officer , so authorized could conduct a search and proceed as per the requirements laid down in the said section. He argued that the aforesaid three primary conditions for invoking search proceedings cannot be given a go by while framing section 153A assessments and the instant case falls under section 132(1)(c ) of the Act. The provisions of section 153A of the Act use the expression assess or reassess total income and hence the search assessment could be framed u/s 153A of the Act irrespective of any incriminating materials. 7. We have heard the rival submissions. We find it would be necessary to address the preliminary issue of whether the addition could be framed u/s 153A of the Act in respect of a concluded proceeding without the existence of any incriminating materials found in the course of search. The scheme of the act provides for abatement of pending proceedings as on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herwise, the necessity of bifurcation of abated and unabated assessments in section 153A of the Act would become redundant and would lose its relevance. Hence the arguments advanced by the ld DR in this regard deserves to be dismissed. Respectfully following the aforesaid decision, we hold that the additions made in the assessments framed u/s 153A of the Act for the Asst Years 2007-08 and 2008-09 in the absence of incriminating materials found in the course of search relatable to those assessment years, deserve to be deleted. Accordingly, the Ground No. 1 for Asst Years 2007-08 and 2008-09 raised by the assessee are allowed. 8. In view of our aforesaid decision , the adjudication of other grounds raised by the assessee for the Asst Years 2007-08 and 2008-09 becomes infructuous and are accordingly allowed. IT(SS) A No. 158/Kol/2014 Asst Year 2009-10 9. The Ground No.1 for the Asst Year 2009-10 has been stated by the ld AR during the course of hearing as not pressed. Accordingly the same is dismissed as not pressed. 10. The first issue to be decided in this appeal is as to whether the ld CITA is ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the second proviso to section 43B of the act as introduced by Finance Act, 2003 was curative in nature and is required to be applied retrospectively with effect from 1st April, 1988. Mr.Khaitan submits save and except the judgement in CIT vs Gujarat State Road Transport Corporation : 223 Taxman 398 (Guj) wherein a different view has been taken, all other High Courts have taken a view similar to the judgment passed by the Calcutta High Court. Since we find that the issues stand covered by the judgment of the jurisdictional court in CIT vs Vijay Shree (supra) , the question no. 1 is answered in the negative, in favour of the respondent and against the appellant. The question no. 2 is answered in the affirmative, against the appellant and in favour of the respondent. The appeal is dismissed. Respectfully following the aforesaid decision, we allow the ground no. 2 raised by the assessee. 11. The last issue to be decided in this appeal is as to whether the ld CITA is justified in upholding the disallowance made u/s 14A of the Act in the sum of ₹ 3,25,700/- read with Rule 8D in the facts and circumstances of the case. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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