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2014 (4) TMI 823 - AT - Income TaxAddition of disallowance of ESIC contribution Held that:- After hearing both the parties and in view of the admitted facts, which also forms part of the details submitted by the assessee in the paper book, that all the payments of ESIC have been made before the due date of filing of the return of income, the amount is allowable as deduction u/s 43B Decided in favour of Assessee. Addition of advances written off Held that:- The assessee had made deposits with the various Government Departments as per the tender requirement with various Government and Semi Government organizations as well as undertakings for getting the business in which the assessee is engaged i.e., inspection, verification, testing and certification services - The payments have been made in the form of demand draft / cheque at the time of tender submissions - The payments can very well be said to have been made in the course of business only - Once the amounts have not been recovered, the same results into loss - This aspect has not been examined either by the AO or by the DRP despite specific descriptions and details furnished thus, the matter is remitted back to the AO for verification Decided in favour of Assessee. Disallowance of deduction of right back of leave encashment Held that:- The assessee has made a provision for leave encashment in the assessment year 2005-06 which was disallowed by the assessee itself in the computation of income and the same was added back - the view taken by the DRP cannot be sustained for the reason that it is not a new claim which is being made before the AO - If the assessee has written back the leave encashment on the basis of actuarial valuation, the same has to be allowed even though the assessee could not claim in the computation of income thus, the matter is remitted back to the AO for verification of the claim Decided in favour of Assessee. Non-grant of credit for TDS Disallowance of TDS credit Held that:- The issue needs to be remanded back to examine the conditions of Article 24 of the Indo- Korean DTAA and whether credit of deduction can be given - Decided in favour of Assessee. Addition on account of TPA Technical fee paid to AE Held that:- The Tribunal in assessee's own case for the previous assessment years have decided that the royalty @ 5% to 8% was accepted as per FIPB instruction issued by the Ministry of Commerce, Govt. of India - the assessee's payment of license fee @ 3% to its AE on the total turnover is at ALP - the rate of license fee @3% of the total turnover for the use of intellectual / intangible properties, is at ALP is accepted Decided in favour of Assessee. Admission of additional ground - Benefit of Article 10 of India Switzerland DTAA Liability for dividend distribution tax @ 10% - Held that:- The assessee has raised the contention that the correct tax liability for deducting the TDS is at 10% in view of the Article-10 of the India Switzerland DTAA which is admittedly applicable in the case of the assessee - there is no requirement for investigation or examination of facts albeit it is clearly borne out from the records there is no reason to admit an additional ground which goes to the root of the tax liability of the assessee in accordance with the provisions of law thus, the additional ground is admitted and the matter is remitted back to the AO for adjudication Decided in favour of Assessee.
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