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TMI Blog2013 (5) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... oyees' contribution of Rs.88,19,279/- and Rs24,70,259/- to Provident Fund and ESI respectively not paid within the due date including grace period without appreciating the specific direction of the ITAT while restoring the matter for fresh verification. 2. That on the facts and in the circumstances of the case Ld. CIT(A) has erred in fact as well as in Jaw by allowing assessee's claim of deduction of Rs.50,16,000/- in the A.Y. 2003-04 being provision of gratuity made by the assessee during the F.Y. 2003-04 relevant to A.Y. 2004-05 in relation to the employees claimed to have retired during the period from 01.01.2000 to 31.12.2000 by entertaining additional evidences in violation of Rule 46A of the I.T. Rule and without appreciating the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M Electronics (Delhi) 313 ITR 161, following the decision of the Hon'ble Supreme Court in the case of Vinay Cement 313 ITR (SC) 1, has clearly laid down that no addition under section 36(1)(va) r.w.s. 2(24)(x) can be made in respect of employers/employees' contribution towards the provident fund payment and ESI payment, if the assessee makes the payment much before the due date before filing of the income-tax return under section 139(1). In view of the significant decision of the law governed by the Hon'ble Supreme Court as well as Hon'ble Delhi High Court, we confirm the order of the CIT(A) on these two grounds. Thus the ground nos.1 and 3 of the Revenue's appeal stand dismissed. 5. Ground no.2 relates to allowing the claim of the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deleted the disallowance of Rs.50,16,000/- 6. Before us, the ld. D.R. vehemently contended that the CIT(A) has violated the provisions of Rule 46A. The assessee submitted for the first time the additional Evidence before the CIT(A), which was duly accepted by the CIT(A). The ld. A.R., on the other hand, submitted that in response to the letter of the AO dated 12.12.2008, issued along with notice under section 142(1), the assessee filed the submission on 22.12.2008 and in the submission, the assessee had given the details of the employees giving names, designation, identity, year of retirement but the computation was submitted on test check basis in respect of only 17 employees. The AO, after submitting the computation of 17 employees, by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly considered the same. In our opinion, no interference is called for in the order of the CIT(A). The CIT(A), in this case, we noted, asked for the evidence from the assessee in respect of all 70 employees and the assessee has given the computation of the 17 employees to the CIT(A) which was examined by the CIT(A). It is not a case where the assessee has submitted the additional evidence to the CIT(A) at its own. Rule 46A is applicable in a case where the assessee himself submits the additional evidence before the CIT(A). Rule 46A is merely procedural and in case the assessee submits the additional evidence to CIT(A). The CIT(A) has to comply with the requirements of Rule 46A(3) of the Income-Tax Rules. We have also gone through the decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n law by deleting the additions of employees' contribution of Rs.62,92,862/- and Rs.22,99,631/- to Provident Fund and ESI respectively not paid within the due date including grace period without appreciating the specific direction of the ITAT while restoring the matter for fresh verification. 2. That on the facts and in the circumstances of the case Ld. C1T(A) has erred in law by considering the payments of employees' contribution to Provident Fund and ESI beyond due dates including grace period u/s.43B of the I.T. Act whereas allowability of deduction for payment of employees' contribution to Provident Fund and ESI is governed by the provisions u/s. 36(1)(va) r.w.s. 2(24)(x) as held by the 1TAT, Kolkata (Special Bench) in the case of Jt. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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