TMI Blog2003 (3) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... d the addition by relying on the orders of earlier assessment years. The Revenue is aggrieved by the orders of CIT(A). Hence, these appeals before us. 3. Both the learned Departmental Representative and the learned counsel of the assessee conceded that this issue is covered in favour of the assessee and against the Revenue by the consolidated order dt. 20th May, 2002, passed by the Tribunal, Chandigarh Bench, in ITA No. 1286/Chd/1994 for asst. yr. 1989-90; ITA No. 214/Chd/1994, asst. yr. 1991-92; ITA No. 1188/Chd/1995, asst. yr. 1992-93 and ITA No. 205/Chd/1996, asst. yr. 1993-94. 4. We have heard both the parties and carefully gone through the orders of tax authorities below. We have also examined the facts, evidence and material on record and referred to the aforesaid order dt. 20th May, 2002, in assessee's own case for abovementioned assessment years. We find that this issue came up for consideration before the Tribunal, Chandigarh Bench, in ITA No. 214/Chd/1994 for asst. yr. 1991-92 where the Tribunal has deleted the similar addition by recording the following finding in para 22 of the aforesaid order: "22. It is clear from the above that true purpose of crediting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A). Hence, these appeals before us. 6. Both the learned Departmental Representative and the learned counsel of the assessee were fair enough to concede that this issue also stands decided in favour of the assessee and against the Revenue by the aforesaid consolidated order of the Tribunal for abovementioned assessment years. 7. We have heard both the parties and carefully gone through the orders of the authorities below. From the facts stated above, it is obvious that the CIT(A) has deleted the addition by relying on the orders for earlier assessment years. The same issue came up before the Tribunal for asst. yrs. 1989-90 and 1991-92 and by its aforesaid order, the Tribunal sustained the order of CIT(A) in deleting the impugned additions. Relevant finding recorded in para 24 of the aforesaid consolidated order is as under "24. It is relevant to mention that Tribunal in appeal No. 242/Chandi/1999 vide order dt. 23rd Feb., 1999, for asst. yr. 1989-90 deleted the similar addition of Rs. 2,65,375 on account of prepaid excise duty. The claim of the assessee relating to above deduction was also supported by the decision of Special 'B' Bench of Tribunal, Delhi, as per order d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on account of entertainment expenses. The facts of the case are that out of total entertainment expenses debited in the P L a/c, the assessee had claimed 25 per cent of such expenses on food and beverages provided to the employees which were not covered in the definition of entertainment within the meaning of Expln. 2 to s. 37(2A). Remaining 75 per cent expenses were treated by the assessee as entertainment expenditure and disallowed the same as per the provisions of IT Act, 1961. However, the AO disallowed the claim of the assessee for treating 25 per cent expenses for non-entertainment. On appeals, CIT(A) deleted the disallowance by relying on the orders of CIT(A) for asst. yrs. 1989-90, 1991-92 and 1993-94. The Revenue is aggrieved by the orders of CIT(A). Hence, these appeals before us. 12. Both the learned Departmental Representative and learned counsel for the assessee conceded that this issue is also covered in favour of the assessee and against the Revenue by the aforesaid consolidated order of the Tribunal for the abovementioned assessment years. 13. We have heard both the parties and carefully gone through the orders of tax authorities below. From the facts mentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 961. 16. Aggrieved, the assessee carried the matter in appeals before the CIT(A). As regards asst. yr. 1994-95, the CIT(A) deleted the disallowance by relying on his appellate order for asst. yr. 1993-94. As regards asst. yr. 1995-96, the CIT(A) observed that the assessee had incurred expenses of Rs. 7,500, Rs. 16,355 and Rs. 4,262 on account of rent, repairs and depreciation, respectively. The assessee was entitled to deduction of the same under ss. 30, 31 and 32 of IT Act, 1961, for which he also relied on the orders of CIT(A) for earlier assessment years. However, as regards the remaining expenses of Rs. 2,31,855, the CIT(A) held that the assessee was not entitled to the same in view of the provisions of s. 37(4) of IT Act, 1961. The Revenue is aggrieved by the orders of CIT(A) for both the assessment years in deleting the disallowances. The assessee is aggrieved with the order of CIT(A) for asst. yr. 1995-96 in sustaining the part of the disallowance. Hence, these appeals before us. 17. Learned Departmental Representative submitted that no doubt this issue is covered in favour of the assessee and against the Revenue by the aforesaid order of the Tribunal for the abovement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Expln. (ii) to s. 37(4) provides that expenditure incurred on maintenance of a guest house would include rent paid in respect of such accommodation. Provisions of ss. 37(4) and 37(5) are specific provisions pertaining to guest house alone. Secs. 30, 31 and 32 are general provisions and on the basis of rule of harmonious construction, former overrides later. Thus, it has been held that expenditure incurred on rent, repair and depreciation on a guest-house is not allowable. We have also noticed that while taking such view, the Tribunal, Delhi (SB), has also considered the earlier decision of Special Bench, Tribunal, Nagpur, in the case of Bhilai Engg. Corpn. vs. Dy. CIT and the decision in that case has been overruled. We are bound to follow the recent decision of Special Bench of Tribunal, Delhi. Respectfully following the same, we set aside the order of CIT(A) in allowing deduction of Rs. 2,55,784 and Rs. 28,117 for asst. yrs. 1994-95 and 1995-96, respectively, and restore the orders of AO. Therefore, respective grounds of appeal of the Revenue for both the assessment years are allowed. 20. As regards assessee's ground of appeal for sustaining of disallowance of Rs. 2,31,855 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dy. CIT. As regards other payment of Rs. 15,000 paid to Raju Sofawala for repair of the sofa, we find that the same is also covered by exceptional circumstances mentioned in r. 6DD(j) as it was not practical to make the payment by cheque. This view also finds support from the judgment of Hon'ble Gujarat High Court in the case of Hasanand Pinjomal vs. CIT. We do not find any legal or factual infirmity in the order of CIT(A). The same is upheld and this ground of appeal of the Revenue is dismissed. 25. The next ground of assessee's appeal for asst. yr. 1995-96 relates to sustaining of disallowance of Rs. 1,36,747 being the employees' and employer's contribution towards provident fund in terms of s. 43B of IT Act, 1961. The facts of the case are that the AO observed that the assessee has made payment of the aforesaid amount on the due date. Therefore, the assessee was not entitled to deduction under s. 36(1)(va) of IT Act, 1961. Accordingly, the AO disallowed the same. 26. Aggrieved, the assessee carried the matter in appeal before the CIT(A). It was submitted before the CIT(A) that the payment had been made in the accounting year relevant to assessment year under reference and, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TJ (Ahd) 652 where deduction for delayed payment of provident fund, etc., was held to be allowable in the year when such payment is actually made. He submitted that in this case payment has been made in the accounting year under reference and, therefore, the same is allowable in the assessment year under consideration. He further relied on the decision of Tribunal, Madras Bench, in the case of Madras Radiators Pressing Ltd. vs. Dy. CIT (1996) 56 TTJ (Mad) 662 : (1996) 59 ITD 515 (Mad) where deduction in respect of payments made in the year itself, though with a marginal delay of a few days on certain occasions, was held to be allowable. He further relied on the judgment of Hon'ble Kerala High Court in the case of Kerala State Financial Enterprises vs. CIT (1997) 139 CTR (Ker) 277 : (1997) 225 ITR 999 (Ker) where Kerala High Court has held that deduction is to be allowed in the year when actual payment of provident fund has been made. 28. Learned Departmental Representative simply relied on the orders of authorities below. 29. We have heard both the parties and carefully considered the rival submissions. From the facts discussed above, it is obvious that the payment of Rs. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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