TMI Blog2016 (12) TMI 953X X X X Extracts X X X X X X X X Extracts X X X X ..... d an opportunity of hearing in such fresh proceedings. Addition being the payments made towards Employees and Employer’s Provident Fund contribution - delay ranging between one to four/six days in depositing the amounts - Held that:- Both the employer’s and employees’ contribution are allowable as deduction if the amount of provident fund etc., though belatedly, but is paid before the due date of filing of return u/s 139(1) of the Act. Adverting to the facts of the instant case, it is seen as an admitted position that the assessee deposited its and employees’ share in EPF etc. before the due date u/s 139(1) of the Act. Thus we order for the deletion of the addition. See CIT v. Alom Extrusions Limited [2009 (11) TMI 27 - SUPREME COURT ] and CIT v. Aimil Limited [2009 (12) TMI 38 - DELHI HIGH COURT Non deduction of tds - Held that:- On a query about the details and evidence for such deduction of tax at source by customers, the ld. AR failed to furnish the same and corroborate the version of tax deducted at source by the customers without furnishing any TDS certificates. In the absence of the foundation of the deduction of tax at source by customers, we are unable to accept the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve observations As regards the excess amount being payment of Provident Fund in excess of the actual liability, the same has to be allowed as deduction being an expenditure incurred in carrying on the business. - ITA No.493/Del/2008 - - - Dated:- 15-12-2016 - Shri R. S. Syal, AM And Shri K. N. Chary, JM Appellant by : Shri C.S. Aggarwal, Sr. Advocate Shri R.P. Mall, Advocate Respondent by: Shri S.K. Jain, DR ORDER Per R. S. Syal, AM This appeal by the assessee is directed against the order passed by the CIT(A) on 30.11.2007 in relation to the Assessment Year 2002-03. 2. No argument was advanced in respect of Ground No.1, which is hereby dismissed. 3. Ground no. 2 is against the sustenance of disallowance of ₹ 38,41,434/-, being loss on foreign exchange incurred on trading liabilities. 4. Briefly stated, the facts of the case are that the assessee is engaged in import of Acterna Group s high technology T M equipments for sale to various government and private sector companies in the telecom sector. The assessee filed return declaring loss of ₹ 95,25,230/-. Apart from others, the assessee claimed deduction in respect of foreign e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of May, 2001 was actually deposited on 21.6.2001 against the due date of payment of 20.6.2001. Similarly, the employees and employer s contribution to PF and employees contribution to family pension fund for the month of March, 2002 was deposited on 22/26.4.2002 as against the due date of 20.04.2002. We find that the question of deletion of disallowance under such circumstances is no more res integra. The Hon ble Supreme Court in the case of CIT v. Alom Extrusions Limited [(2009) 319 ITR 306 (SC)] has held that the amendment to first proviso and omission of the second proviso to section 43B by the Finance Act, 2003 is retrospective. The Hon ble Delhi High Court in the case of CIT v. Aimil Limited [(2010) 321 ITR 508 (Delhi)] has allowed deduction in respect of employees share when the amount was paid before the due date. When we consider these two judgments, it becomes patent that both the employer s and employees contribution are allowable as deduction if the amount of provident fund etc., though belatedly, but is paid before the due date of filing of return u/s 139(1) of the Act. Adverting to the facts of the instant case, it is seen as an admitted position that the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... educted, is a sort of perquisite, which if paid so would have been deductible as revenue expenditure. As such, the amount of ₹ 1,50,000/- has to be allowed as deduction if it was paid and not refunded to the assessee. On a pertinent query, both the sides did not have an idea about the order passed by the Tribunal, if any, against the order u/s 201(1) creating demand of ₹ 1,50,000/-. We, therefore, direct the AO to allow deduction for ₹ 1,50,000/- in the year. If such demand has been erased by the Tribunal in subsequent proceedings, then, the amount so refunded should be charged to tax in the relevant year. 13. The next ground is against the sustenance of addition of ₹ 37,431/-, being excess deposit of TDS amount on salaries to employees. Next ground assailing sustenance of disallowance of ₹ 4,047/-, being excess deposit of Provident Fund contribution, is connected with the former ground. Both are, therefore, taken up for consideration in a combined manner. 14. The assessee claimed that a sum of ₹ 37,431/- was paid as TDS by it in excess of the legitimate liability in respect of salaries paid to its employees. Similarly, a sum of ₹ 4,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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