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2015 (7) TMI 359 - ITAT AHMEDABAD

2015 (7) TMI 359 - ITAT AHMEDABAD - TMI - Double disallowance on account of Provident Fund contribution - appellant claimed that it had already disallowed ₹ 34,43,868/- in original return filed but Assessing Officer again made disallowance resulting in double disallowance - Held that:- In the instant case, the CIT(A) vide its order had deleted the disallowance of ₹ 18,88,427/- out of total disallowance of ₹ 36,10,361/-. The AO gave effect of the aforesaid order of the CIT(A) vi .....

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efore, set aside the orders of the orders of the lower authorities on this issue and remit back the matter to the file of the AO with the same directions as given by the CIT(A) vide its order dated 31.8.2010 quoted above in the order. The AO is directed to pass a speaking order on this issue - Decided in favour of assessee for statistical purposes.

Charging interest under section 234A - Held that:- In order under section 143(3) r.w.s. section 147 the AO inter alia ordered for charging .....

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nts P. Ltd. Vs. ITO, (2007 (5) TMI 259 - ITAT DELHI-A) wherein it was held that it is mandatory for the AO to charge interest under section 234B of the Act and after the decision of the Tribunal, he was duty bound to increase or reduce the same as per the order of the Tribunal, the interest which he had charged while passing the assessment order and upto the date of the assessment order and not upto the date of the order passed by him in consequence of the order passed by the Tribunal. The order .....

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No. 2176/Ahd/2011 - Dated:- 10-4-2015 - N S Saini, AM And Kul Bharat, JM,JJ. For the Appellant : Shri Anil Kshatriya For the Respondent : Shri M K Singh, Sr. DR ORDER Per: N S Saini, Accountant Member This is an appeal filed by the assessee against the order of the Commissioner of Income-Tax (Appeals)-VI, Ahmedabad dated 17.6.2011. 2. The Grounds no.1 and 5 of the appeal of the assessee are general in nature, and hence require no adjudication by us. 3. The ground no.2 of the appeal reads as und .....

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The AR of the assessee submitted that in the return of income filed for the Asstt.Year 2002-03, the assessee made disallowance of ₹ 18,88,427/- on account of employer's contribution towards provident fund, and ₹ 17,21,934/- being employees' contribution towards PF, and thus made an aggregate disallowance of ₹ 36,10,361/-. The assessment was completed on 30.11.2007 under section 143(3) of the Act and no disallowance on account of contribution towards PF by the assessee w .....

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to PF, and simultaneously directed the AO to remove double disallowance of ₹ 34,43,865/- voluntarily added by the assessee in its return of income. He pointed out that in para.2.4 of the order, the CIT(A) has observed as under: "As regards ground no 4, appellant claimed that it had already disallowed ₹ 34,43,868/- in original return filed but Assessing Officer again made disallowance resulting in double disallowance. This is a matter of verification. Assessing Officer is directe .....

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;s contribution to PF. The AO allowed relief of ₹ 11,50,052/- while giving appeal effect to the order of the Tribunal vide his order dated 28.2.2011. In the meantime, the assessee had filed application under section 154 of the Act on 3.12.2010 requesting the AO to rectify his appeal effect order dated 20.10.2010 for allowing relief of ₹ 34,43,868/- and to delete corresponding interest under section 234A, 234B and 234D of the Act. However, the AO rejected the rectification application .....

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the CIT(A) vide its order dated 31.8.2010 passed in appeal no.CIT(A)-VI/ACIT(OSD)/R-1/215/07-08 had deleted the disallowance of ₹ 18,88,427/- out of total disallowance of ₹ 36,10,361/- and has further held in respect of ground no.4 of the appeal of the assessee, as under: "2.4 As regards ground no.4 appellant claimed that it had already disallowed ₹ 34,43,868/- in original return filed but AO again made disallowance resulting in double disallowance. This is a matter of ve .....

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#8377; 34,43,868/-. Thus, such a non-speaking order passed by the AO while giving effect to the order of the CIT(A) is bad in law, and unsustainable. We, therefore, set aside the orders of the orders of the lower authorities on this issue and remit back the matter to the file of the AO with the same directions as given by the CIT(A) vide its order dated 31.8.2010 quoted above in the order. The AO is directed to pass a speaking order on this issue after proper verification and after allowing reas .....

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ned interest under section 234A being bad in law, the same may be deleted." 13. The AR of the assessee submitted before us that since the original return was filed by due date on 26.11.2002, the interest was not charged while processing the return under section 143(1) on 10.10.2003 nor in the order under section 143(3) r.w.s. 147 dated 30.11.2007. Therefore, charging of such interest in the appeal effect order was wholly unwarranted. The AO declined to rectify the mistake, and the CIT(A) ha .....

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d 20.10.2010 passed to grant effect to the order of the CIT(A), wherein no direction was issued by the CIT(A) for charging fresh interest under section 234A of the Act. We find that in order under section 143(3) r.w.s. section 147 dated 30.11.2007, the AO inter alia ordered for charging interest under section 234A of the Act. Thus, the assessee was not correct in submitting that no interest under section 234A was originally levied by the AO, and the same was only levied for the first time in the .....

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in para 4 of the Statement of Facts. The Honourable Tribunal may be pleased to delete the impugned interest under section 234B of the Act." 16. AR of the assessee submitted before us that on a perusal of the records, it will be seen that in the original order passed under section 143(3) on 23.3.2005, no interest under section 234B was charged, since the return filed by the assessee was at a loss of ₹ 1,13,54,740/- and TDS paid was ₹ 14,10,993/-. 17. Further, the Tribunal in the .....

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finality. However, the AO has recorded observations towards end of the order regarding interest charged under section 234B mechanically without application of mind and such observation is non-est in law. The CIT(A) has not considered the contention of the assessee through detailed statement of facts and has dismissed the ground of the appeal. 18. In the alternative, it is the submission of the assessee the AO passed appeal effect order charging interest under section 234B till the date of such .....

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tion 234B of the Act till the date of passing order giving effect to the order of the Tribunal passed on 28.2.2011. The contention of the assessee is that the interest under section 234B cannot be charged as the order was set aside by the Tribunal and de novo order was being agitated before the Tribunal in the second round, and this order under section 143(3) have not reached finality. Further, the AO also observed at the end of the order regarding interest charged under section 234B mechanicall .....

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