TMI Blog2016 (7) TMI 570X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the case of Ghatge Patil Transports Ltd. (2014 (10) TMI 402 - BOMBAY HIGH COURT), we hold and direct that the disallowance of ₹ 46,519/- under section 43B of the Act is to be deleted since the assessee in the case on hand has admittedly paid the employees contribution to ESIC before the due date for furnishing its return under section 139(1) of the Act for A.Y. 2008-09 which fact has not been disputed or controverted by Revenue. - Decided in favour of assessee - ITA No. 1667/Mum/2012 - - - Dated:- 8-7-2016 - Shri Jason P. Boaz, Accountant Member And Shri Sandeep Gosain, Judicial Member For the Appellant : Shri Nitesh Joshi For the Respondent : Shri Neil Philip ORDER Per Jason P. Boaz, A.M. This appeal by the assessee is directed against the order of the CIT(A)- 13, Mumbai dated 16.11.2011 for A.Y. 2008-09. 2. The facts of the case, briefly, are as under: - 2.1 The assessee is a company engaged in the business of engineering, manufacturing air conditioning and refrigeration equipment, air conditioners for specialised applications, material handling equipment, construction and mining equipment, execution of electro mechanical projects, under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .50 lakhs voluntarily offered by the Appellant Company be deleted as the same is unwarranted. [Refer page Nos.2 to 4, point No. I of the Assessment Order and page 2 to 4, point No. 2 of CIT(A) order]. GROUND NO 2: DISALLOWANCE U/S 43B The CIT(A) erred in upholding the action of the AO by disallowing Employees' Contribution to ESIC aggregating ₹ 46,519/- u/s 43B as the same were deposited after the due date. The Appellant Company submits that the Employees Contribution to ES1C were deposited within the permissible grace period and much before the due date of filing of Return of Income. On similar ground in the Appellant Company's own case, the CIT(A) has for A.Y.2007-08, relying on the decision of Apex Court in case of CIT vs. Alom Extrusions Limited (Civil Appeal No.7771 of 2009 and in the case of C1T vs. Vinay Cement (ITA No.2/2005, ITA No.56/2006 ITA No.80/2007), decided the matter in favour of the Appellant Company. The Appellant Company therefore prays that the AO be directed to delete the addition of 46.519/-. 4. Ground No. 1 - Disallowance under section 14 r.w. Rule 8D(2)(iii) 4.1 In this ground, the assessee assails the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AO/CIT(A) ought to be deleted. In support of the proposition, the learned A.R. for the assessee placed reliance on the decision of the Hon'ble Bombay High Court in the case of Godraj Boyce Mfg. Co. Ltd. (328 ITR 81), Maxopp Investment Ltd. (2012) 347 ITR 272/203 (Delhi) and Taikisha Engineering India Ltd. (2015) 370 ITR 338 (Delhi). 4.2 Per contra, the learned D.R. placed strong support on the finding of the learned CIT(A) in the impugned order on the issue of disallowance under section 14A r.w. Rule 8D(2)(iii). 4.3.1 We have heard the rival contentions of both the parties and perused and carefully considered the material on record, including the judicial decisions cited. Admittedly, in this year the assessee suo moto disallowed an amount of ₹ 12,50,000/- under section 14A r.w. Rule 8D in respect of exempt dividend income earned to the tune of ₹ 10,41,37,067/-. The aforesaid disallowance made on account of administrative expenses were from out of MIS department expenditure of ₹ 66.75 lakhs incurred in respect of staff costs, operational, administrative, establishment and general expenses and working thereof was given. 4.3.2 Section 14A of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- on account of a portion of administrative expenses amounting to ₹ 66.75 lakhs before he invoked the provisions of rule 8D(2)(iii) of the Rules and made the aforesaid disallowance under section 14A r.w. Rule 8D(2)(iii) of the Rules. In almost similar factual and legal circumstances, the Hon'ble Delhi High Court in the case of Joint Investments P. Ltd. (ITA No. 117/2015) dated 25.02.2015, following its own decision in the case of Taikisha Engineering India Ltd. (supra) has held as under at paras 9 and 10 thereof: - 9. In the present case, the AO has not firstly disclosed why the appellant/assessee s claim for attributing ₹ 2,97,440/- as a disallowance under Section 14A had to be rejected. Taikisha says that the jurisdiction to proceed further and determine amounts is derived after examination of the accounts and rejection if any of the assessee s claim or explanation. The second aspect is there appears to have been no scrutiny of the accounts by the AO - an aspect which is completely unnoticed by the CIT (A) and the ITAT. The third, and in the opinion of this court, important anomaly which we cannot be unmindful is that whereas the entire tax exempt income is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee that the assessee had deposited the said amount within the permissible grace/period and much before the due date for filing the return of income for this year, i.e. A.Y. 2008-09. It is contended that this issue is squarely covered in favour of the assessee by the decision of the Hon'ble Apex Court in the case of CIT vs. Alom Extrusions Ltd. (2009) 319 ITR 306 (SC) and the decisions of the Hon'ble Bombay High Court in the case of CIT vs. Hindustan Organics Chemicals Ltd. (2014) 366 ITR 1 (Bom.) and CIT vs. Ghatge Patil Transports Ltd. (2014) 368 ITR 749 (Bom.). It is prayed that in view of the above, the disallowance of ₹ 46,519/- under section 43B of the Act be deleted. 5.2 Per contra, the learned D.R. supported the decision of the learned CIT(A) on this issue. 5.3.1 We have heard the rival contentions of both the parties and perused and carefully considered the material on record. The issue before us is the disallowance of ₹ 46,519/- made and confirmed by the authorities below in respect of employees contribution to ESIC under section 43B of the Act as the same were not deposited before the due date as per the concerned Act. It is also not dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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