TMI Blog2016 (5) TMI 459X X X X Extracts X X X X X X X X Extracts X X X X ..... ended and/or explanation below clause (va) of sub-section (1) of section 36 is deleted, which is with respect to employees' contribution - See COMMISSIONER OF INCOME TAX II Versus GUJARAT STATE ROAD TRANSPORT CORPORATION (2014 (1) TMI 502 - GUJARAT HIGH COURT)- additions confirmed - Decided in favour of Revenue. Disallowance u/s 40(a)(ia) - Held that:- Disallowance by invoking provisions of Section 40(a)(ia) of the Act ignoring the fact that relevant TDS was deposited by the assessee prior to due date of filing of return of income. This is a legal contention raised by the assessee before us. Since the issue was not pressed before the CIT(A), so he did not pass any order on merits on this issue. Therefore, in the interest of justice, we restore this issue to the file of the CIT(A) and direct him to decide this issue after providing due opportunity of hearing to the assessee. - ITA No. 1558/Ahd/2012 & CO No.185/Ahd/2012 - - - Dated:- 30-3-2016 - SHRI SHAILENDRA K. YADAV, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER For The Revenue : Smt. Sonia Kumar, Sr-DR For The Assessee : Smt. Urvashi Shodhan, AR ORDER PER SHAILENDRA K. YADAV, JUDICIAL MEMBER: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erial on record, we find that the loss incurred from commodities transaction made by the assessee is covered by the provisions of Section 43(5) of the Act and the same is allowable as business loss. As per clause (d) inserted to proviso to subsection (5) of 43 by the Finance Act, 2005, the transactions in respect of trading derivative referred to in clause (ac) of Section 2 of the Securities Contracts (Regulation) Act, 1956, carried out in a recognized Stock Exchange are eligible transaction for claiming loss and shall not be deemed to a speculative transaction. Relying on certain case laws, the CIT(A) has rightly allowed the appeal of the assessee. Similar issue came up before the Co-ordinate Bench of this Tribunal in the case of Vimal Oil Foods Ltd vs. ACIT, in ITA No.2392/Ahd/2011, wherein on similar set of facts, ITAT decided the issue in favour of the assessee by observing as under:- 5. In view of the above, we are of the view that assessee's derivative trading through MCX Stock Exchange in A.Y.2007-08 was non speculated transaction; therefore, loss incurred in such transactions was to be treated as normal business loss. We find that by Finance Act, 2005 Clause ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates within the meaning of clause (d) of proviso to section 43(5). 6. In view of the above, the Assessing Officer is directed to delete the disallowance of loss of ₹ 4,82,270/- incurred by assessee company on trade in commodity derivatives. 4.2 Facts being similar, so following the same reasoning, we are not inclined to interfere with the findings of CIT(A) who has rightly granted relief to the assessee on account of speculation loss amounting to ₹ 46,16,944/-. We uphold the same. 5. Next issue is with regard to the relief granted to the assessee on account of belated payments of Provident Fund amounting to ₹ 11,255/-. This issue has been decided against the assessee by the decision of Hon ble Gujarat High Court in the case of CIT vs. Gujarat State Road Transport Corporation, reported in (2014) 366 ITR 170 (Guj), wherein the Hon ble High Court held as under:- Held : Considering section 36(1)(va) of Income Tax Act as it stands, with respect to any sum received by assessee from any of his employees to which provisions of clause (x) of sub-section (24) of section 2 applies, assessee shall not be entitled to deduction of such amount in computing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ective sums with respect to Provident Fund / ESI Fund made by AO was hereby restored. Questions raised in present appeal are answered in favour of revenue. With this, all these appeals are allowed. (Para 8) 5.1 In the light of above legal discussion, we set aside the order of the CIT(A) in this issue and restore that of Assessing Officer. Accordingly, this ground of Revenue is allowed. 6. Next issue is with regard to the commission expenses amounting to ₹ 65,664/-. During the course of assessment proceedings, the Assessing Officer observed that the assessee has paid commission amounting to ₹ 65,664/- to M/s. Aries Exports Pvt Ltd. As the assessee could not produce the original bills and to prove the documentary evidences for which purpose, service received; he considered it as non-genuine expenses and accordingly disallowed the same and added to the total income of the assessee. 6.1 Matter was carried before the First Appellate Authority, wherein various contentions were raised on behalf of the assessee and having considered the same, the CIT(A) has granted relief to the assessee. The order of the CIT(A) has been opposed by the Revenue, inter alia, submitting ..... X X X X Extracts X X X X X X X X Extracts X X X X
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