TMI Blog2015 (2) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... if any. We find that the assessee has grossly failed to do so, therefore, the order of the ld.CIT(A) is set aside and the finding of the AO is confirmed. - Decided in favour of Revenue. Disallowance of PF and ESI expenses u/s.43B - Held that:- Following the judgement of CIT vs. Gujarat State Road Transport Corporation [2014 (1) TMI 502 - GUJARAT HIGH COURT] wherein considering section 36(1)(va) of the Income Tax Act, 1961 read with sub-clause (x) of clause 24 of section 2, it is held that with respect to the sum received by the assessee from any of his employees to which provisions of sub-clause (x) of clause (24) of section (2) applies, the assessee shall be entitled to deduction in computing the income referred to in section 28 with respect to such sum credited by the assessee to the employees’ account in the relevant fund or funds on or before the "due date" mentioned in explanation to section 36(1)(va). Consequently, it is held that the learned tribunal has erred in deleting respective disallowances being employees’ contribution to PF Account / ESI Account made by the AO as, as such, such sums were not credited by the respective assessee to the employees’ accounts in the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st this, the assessee filed an appeal before the ld.CIT(A), who after considering the submissions, partly allowed the appeal. While allowing the appeal, the ld.CIT(A) confirmed the disallowance made on account of employees contribution towards PF/ESI as the same was not deposited in the Government Account within the stipulated time. However, the ld.CIT(A) deleted the disallowance of ₹ 16,03,831/- and ₹ 1,04,802/-. Now, before us, both the Revenue and Assessee are in appeal and crossobjection respectively. 3. During the course of hearing, no one appeared on behalf of the assessee. It is observed that the assessee had filed an application on 19/06/2014, wherein it has been submitted that due to unavoidable circumstances, the assessee was not in a position to appear before this Tribunal on the date of hearing, i.e. on 27/06/2014. The hearing of appeal was adjourned to 11/08/2014 on request application of the assessee. The assessee made another application dated 07/08/2014 making a similar submission that due to unavoidable circumstances, the assessee was not in a position to appear before the Tribunal on the date fixed on 11/08/2014. On 11/08/2014, the matter was adjou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidering the totality of the facts as well as the material on record, we find that the order of the ld.CIT(A) is non-speaking, hence cryptic. Moreover, the finding as given by the ld.CIT(A) that the AO has not established that the interest-bearing funds were advanced as interestfree funds which is contrary to records. We find that the AO has given finding that the assessee had given a total loans and advances amounting to ₹ 1,60,90,948/- on which the assessee has not charged interest on some of the advances. Moreover, the finding that the assessee was having sufficient interest-free funds is also not correct. It is pointed out by the AO that the advance given to M/s. M.P.Builders in connection with advance for capital goods. Similarly, other advances are amounting to ₹ 93,42,143/- on which no break-up is given. Under these facts, we are of the considered view that the ld.CIT(A) was not justified in deleting the disallowances, therefore, the order of the ld.CIT(A) on this issue is set aside and the disallowances made by the AO are hereby confirmed. Thus, this ground of Revenue s appeal is allowed. 6. Second ground of Revenue s appeal is against deletion of addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, none appeared on behalf of the assessee despite having been given various opportunities. Therefore, we are of the view that the assessee is not interest in prosecuting this ground. Thus, this ground raised in the cross-objection filed by the assessee is rejected. 13. Ground No.2 of cross-objection is against the confirmation of disallowance of ₹ 23,736/- in respect of the contribution of PF ESI by invoking the provisions of section 43B of the Act. The ld.Sr.DR supported the order of the CIT(A) and submitted that the order of the ld.CIT(A) is justified. He further submitted that the issue is no more res integra as the Hon ble Jurisdictional High Court has decided the issue in favour of the Revenue in the case of CIT vs. Gujarat State Road Transport Corporation reported at (2014) 366 ITR 170 (Guj.). 14. We have heard the ld.Sr.DR perused the material available on record and gone through the orders of the authorities below. We find that the ld.CIT(A) has decided this issue vide para-3.2 of his order by observing as under:- 3.2. I have considered the submissions made by the A.R. of the appellant and the observations of the assessing officer in the assessment order. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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