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2016 (8) TMI 1576 - HC - Income TaxContribution of the employees to the provident fund or other welfare fund - Addition u/s 36(1) (va) or/and u/s 43B - Whether the second proviso of section 43B of Income Tax Act applies only in respect of employers' contributions to provident fund and does not apply in respect of employees' contribution to provident fund? - HELD THAT:- This issue has been decided in the case of CIT versus Alom Extrusions Ltd., [2009 (11) TMI 27 - SUPREME COURT] wherein Hon'ble Supreme Court, after considering the said explanation to Section 36(1) (va) of the Income Tax Act, has held that Section 43B of the Act would apply to the employees' contribution also. In the present case, on 31st October, 2005 i.e. before filing of the returns, the contribution was already made to the provident fund of the employees' as well as employees' state insurance fund by this appellant and hence, the amount, in question, is covered under Section 43B of the Income Tax Act. Thus the amount deposited by this appellant for employees' contribution to the provident fund as well as employees' state insurance fund is covered under Section 43B of the Income Tax Act. Thus the aforesaid question of law is answered accordingly. Addition being fresh capital introduced by partners - HELD THAT:- It appears that before the assessing officer balance sheet of the assessee showing partners capital amount but no such balance sheet of the partners nor their bank statement or capital account of the partners have been presented before the assessing officer despite the adequate opportunities were given, whereas, looking to the order passed by CIT (Appeals), it has been mentioned before the Commissioner of Income Tax (Appeals) vide order dated 15th January, 2009 which is at Annexure-4 to the memo of this appeal wherein it has been mentioned that this appellant- assessee had produced the requisite evidence before AO. But AO has overlooked this evidence and document. Hence, no error has been committed by the Income Tax Appellate Tribunal in remanding the matter to AO to consider the evidence on record. So far as partners capital account of Rs. 14,26,139.82 paise is concerned, we see no reason to take any other view what has taken by the AO as well as by the CIT (Appeals). Thus the issue raised as stated here-in-above is required to be decided on the basis of the evidence on record and hence, fresh decision will be taken by the AO on the basis of the evidence on record. So far as addition is concerned, if the said decision has not yet been taken by the assessing officer.
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