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TMI Blog2011 (3) TMI 1643X X X X Extracts X X X X X X X X Extracts X X X X ..... t amount ₹ 1,31,162), being the P.F. contribution of the employees by applying the provisions of section 43B instead section 36(i)(va). 3 On the facts and in the circumstances of the case, the Ld. CIT(A) ought to have upheld the order of the AO. 4 It is, therefore, prayed that the order of the Ld. CIT(A) may be cancelled and that of the AO may be restored to the above extent." 2. At the outset , we f ind that none appeared on behalf of the assessee, despite service of not ice on 28.2.2011[AD on record] . Considering the nature of issues involved and the f indings of the learned CIT(A), we proceeded to dispose of the appeal af ter hearing the learned Departmental Representat ive. 3. Advert ing f i rst to ground no.1, facts, in bri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Century Tiles Ltd. 18,48,38,000 23.4% 4.Gladder Ceramics 8,41,33,066 22.19% Since the wastage while manufacturing was more as compared to the preceding year ,when the assessee did not maintain stock register while Central Excise Department undertook search and detected unaccounted sales, the AO applied the GP @ 24% on gross sales of ₹ 8,65,13,682/-, resul t ing in an addit ion of ₹ 43,40,397/-. 4. On appeal, the learned CIT(A) deleted the addit ion in the following terms: - " 3.2 I have considered the submissions of the A.R. carefully and also considered the observations of the A.O. in the assessment order. The appellant has given a chart of purchase of various raw materials and average purchase price at page-111 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sport cost. In view of the above facts, the G.P. addition made By the A.O. can not be sustained and the same is deleted." 5. The Revenue is now in appeal before us against the aforesaid f indings of the learned CIT(A). The learned DR while car rying us through the impugned order supported the f indings of the AO. To a query by the Bench, the learned DR did not point out any defects not iced by the AO in the books of accounts. 6. We have heard learned DR and gone through the facts of the case. Indisputably, the assessee is maintaining the books of accounts and no defects have been pointed out by the AO in the purchases or sales and even in the expenses. There is no finding or opinion either that the records were incorrect and incomplete o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2(Karn) affirmed by Hon'ble Supreme Court in 230 ITR 580]. No material has been placed before us to doubt the nature of the transactions recorded in the books and as mentioned by the ld. CIT(A), no specific discrepancies or defects in the books of account of the assessee have been pointed out nor was any material brought to our notice to establish that purchases were inflated or receipts suppressed. In these circumstances , there was no justification for invoking the provisions of section 145 of the Act [ Vikram Plastics,239 ITR 161(Guj) and estimating the profits. In view of the foregoing, especially when there is no material before us for taking a different view in the matter, we are not inclined to interfere with the findings of the ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the due date for furnishing the return of income under sub sec. 1 of sec. 139 of the Act, are allowable under s.36(1)(va) read with sec. 2(24(x) and sec. 43B of the Act. 10.1 Hon'ble Apex Court in the case of CIT vs Alom Extrusions Ltd 319 ITR 306 (SC) held that the omission of the second proviso to section 43B of the Act by the Finance Act, 2003, operated, retrospectively, is with effect from, April 1, 1988 and not prospectively from April 1, 2004.Hon'ble Court observed that earlier under the second proviso to section 43B as amended by the Finance Act, 1989, the assessees were entitled to deduction only if the contribution stood credited on or before the due date given in the Provident Funds Act. This created further difficulties and on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. The second Proviso to s. 43B (b) provided that any sum paid by the assessee as an employer by way of contribution to any provident fund shall be allowed as a deduction only if paid on or before the due date specified in 36(1)(va) of the Act. After the omission of the second Proviso w.e.f 1.4.2004, the deduction is allowable under the first Proviso if the payment is made on or before the due date for furnishing the return of income. The Hon'ble High Court while considering whether the benefit of s. 43B can be extended to employees' contribution as well, which are paid after the due date under the PF law but before the due date for filing the return, held that (i) Though the Revenue has argued that a distinction is to be made between " ..... X X X X Extracts X X X X X X X X Extracts X X X X
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