9911796707
TMI Blog2014 (4) TMI 823X X X X Extracts X X X X X X X X Extracts X X X X ..... ontribution has been made beyond the due date as per the ESIC Act, 1984, which is 21 days from the last date of the calendar month. The DRP has given the direction that insofar as the payment which has been made after the due date but within the grace period should be allowed and the payments which are made beyond the grace period cannot be allowed. 5. Before us, the learned Counsel, Mr. Sunil Lala, on behalf of the assessee, submitted that all the payments have been made before the due date of filing of the return of income, hence in view of the provisions of section 43B same should be allowed. He drew our attention to the details given at Page-29 of the paper book and pointed out that all the payments have been made much before the due date of filing of return of income. Accordingly, he pleaded that the same should be allowed as deduction. 6. The learned D.R. has also admitted that all the payments have been made before the due date of filing of the return of income. 7. After hearing both the parties and in view of the aforesaid admitted facts, which also forms part of the details submitted by the learned Counsel in the paper book, that all the payments of ESIC have been made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. We have heard the rival contention, perused the relevant findings of the authorities below and the material available on record. On a perusal of the description and the details of deposits, it is seen that insofar as the deposits made for EMD / Tender, 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. These payments have been made in the form of demand draft / cheque at the time of tender submissions. These payments can very well be said to have been made in the course of business only. Once these amounts have not been recovered, the same results into loss. This aspect has not been examined either by the Assessing Officer or by the DRP despite specific descriptions and details furnished. Similarly, in case of electricity deposits, rental deposits, gas cylinder, fuel, water deposit, the expenses appear to have been made in the course of business. However, it is not clear when these deposits were made and how the loss has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, the same has to be allowed even though the assessee could not claim in the computation of income. Under these facts, we set aside the impugned order and restore this issue back to the file of the Assessing Officer and direct him to verify the claim of the assessee and if it is found that the same has been written back in this year on account of actuarial valuation the same has to be allowed as deduction. Thus, ground no.3, raised by the assessee is treated as allowed for statistical purposes. 18. In ground no.4, the assessee is aggrieved by not granting the credit for TDS of Rs. 45,093. 19. Before us, the learned Counsel for the assessee submitted that the Assessing Officer has to give credit of deduction as per the Article-24 of Indo Korean DTAA as per the conditions mentioned therein which has not been given by the Assessing Officer. 20. The learned Departmental Representative submitted that this matter needs verification by the Assessing Officer to examine whether the conditions as given in Para-3 of Article-24 of the DTAA is satisfied or not. 21. After hearing both the parties, we are of the opinion that the issue needs to be remanded back to examine the conditions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid fact that similar issue has been decided by the Tribunal in favour of the assessee. 32. We have considered the relevant findings of the Assessing Officer and the DRP and also the Tribunal orders in assessee's own case for the earlier years. The TPO has made re-computation of ALP of the international transaction of fee for technical services paid to S.G.S. SA. The assessee has paid technical fees of Rs. 5.16 crores to its A.E. out of which the license fee has been paid for the use of intellectual / intangible property @ 3% of the turnover. This 3% was based on some international study which has concluded that the license fee ranges from 2.5% to 4% on the revenue generated. The TPO, following the earlier year finding came to the conclusion drawn that the ALP of the license fee has to be determined by taking 1% of local sales and 2% on export sales. Accordingly, he concluded that a sum of Rs. 30 lakhs have been paid more to the A.E. This view of the TPO was based on Govt. of India press note no.9 of 2000 issued by the Ministry of Commerce and Industry which permitted royalty @ 1% on domestic sale and 2% on the export for the use of trade mark and brand name of foreign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was raised before the learned Commissioner (Appeals) in the earlier year and the Tribunal has set aside the issue to the file of the Assessing Officer. Moreover, this issue is purely a legal issue and does not require any verification of facts or record and, therefore, the same should be admitted in view of the case laws mentioned in the petition. He further filed compilation of various case laws on the ground that a claim can be made even at the stage of the Tribunal if the foundatinal facts are there in the record. 36. The learned Departmental Representative strongly objected to the admission of the additional ground on the ground that this issue has neither been raised before the Assessing Officer nor before the DRP and also no such claim has been made before the Assessing Officer. Therefore, such a claim cannot be entertained by way of additional ground before the Tribunal. 37. We have carefully considered the rival submissions and perused the material placed on record. Insofar as the power of the Tribunal in admitting the additional ground is concerned, the same has been elaborated in various decisions of the Hon'ble Supreme Court and High Courts, wherein it has been hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [1985] 151 ITR 499 (Guj) [FB]. Undoubtedly, the Tribunal will have the discretion to allow or not allow a new ground to be raised. But where the Tribunal is only required to consider a question of law arising from the facts which are on record in the assessment proceedings we fail to see why such a question should not be allowed to be raised when it is necessary to consider that question in order to correctly assess the tax liability of an assessee." 38. In the present case, 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. For adjudicating this issue, there is no requirement for investigation or examination of facts albeit it is clearly borne out from the records. Therefore, we do not feel any reason not to admit such an additional ground which goes to the root of the tax liability of the assessee in accordance with the provisions of law. Accordingly, we admit the additional ground and restore this matter to the file of the Assessing Officer to deal and decide this issue in accordance with the law as in the earlie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further erred in upholding the action of the AO in making addition on account of advances written off of Rs. 99,877. 3. On the facts and circumstances of the case, and in law, the learned AO erred in disallowing the TDS credit of Rs. 39,82,285 which was not disallowed earlier in the draft assessment order dated December 8, 2010 issued under section 143(3) read with section 144C( 1) of the Act. 4. Without prejudice, on the facts and circumstances of the case, and in law, the learned AO erred in not allowing the TDS credit of Rs. 39,82,285." 40. In ground no.1, 1.1 and 1.2, the assessee has challenged the transfer pricing adjustment with respect to the technical fees paid to the A.E. 41. This issue is similar to ground no.7, which has been raised by the assessee in the assessment year 2006-07. The facts in this year are also identical and, therefore, the conclusion given in the aforesaid appeal will apply mutatis mutandis in this year also. Thus, the addition made by the Assessing Officer on account of transfer pricing adjustment is deleted and the ground raised before us are treated as allowed. 42. With regard to ground no.1.3, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
