TMI Blog2017 (6) TMI 436X X X X Extracts X X X X X X X X Extracts X X X X ..... URT]. However, ld. CIT(A) in the appeal following the judgments of Hon’ble Jurisdictional High Court allowed the claim of the assessee and deleted the disallowance. We do not see any infirmity in the order of the Ld. CIT(A). Therefore, we uphold the same. The judgment of the Hon’ble Jurisdictional High Court which admittedly has not been overruled by the Hon’ble Supreme Court. - Decided against revenue - ITA No. 1040/JP/2016. And ITA No. 1050/JP/2016 - - - Dated:- 25-5-2017 - SHRI BHAGCHAND, AM AND SHRI KUL BHARAT, JM For The Revenue : Shri Varindar Mehta (CIT) For The Assessee : Shri S.L.Poddar (Advocate) ORDER PER: SHRI KUL BHARAT, J.M. These are the cross appeals one by the assessee and another by the revenue is directed against the order of ld. CIT (A)-1, Jaipur dated 15.09.2016 pertaining to A.Y. 2013-14. Both the appeals were taken up together and for the sake of convenience and brevity are being disposed by a consolidated order. 1. First, we take up assessee s appeal in ITA No. 1040/JP/2016. The assessee has taken following grounds of appeal:- 1. That the learned CIT Appeals-1, Jaipur not allowed and no accepted the revised return filed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rn on 24.2.2016. Undisputedly time for filing return u/s 139(5) had already elapsed. The ld. Counsel for the assessee submitted that such claim was allowed in the assessee s own case pertaining to the assessment year 2011-12 in ITA No. 120/JP/2015 wherein the Tribunal has held as under:- At the outset, we have been informed that the issue as raised by the revenue department now stood covered by the order of the Tribunal pronounced in assessee s own can for A.Y. 2010-11. Even ld. CIT(A) has followed the decision of the ITAT in assessee s own case for A.Ys 2007-08 and 08-09. For the sake of ready reference, the relevant observations of ld. CIT(A) are reproduced below:- 3.4 I have duly considered submissions of the appellant and AO s contention. I have also perused the material on record and duly considered the factual matrix of the case as also the applicable legal position. The assessee bank is the regional rural bank which is established under under The Regional Rural Banks Act, 1976. As per CBDT circular the regional rural banks are covered under the definition of Co-operative Bank, this fact already accepted by the department in the assessee s case in previous years. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of ₹ 1.18 crores. Though ld. CIT(A) has allowed such deduction u/s 37 yet we hold that deduction is allowable u/s 36(1)(v) read with section 40A(9). In case, the approval of group gratuity scheme is not given by the competent authority then the revenue will be entitled to take remedial measure as per law...... 9. It is the case of the Assessing Officer that the payment is made to unapproved gratuity fund is not an allowable expenses as per provisions of section 36(1)(v) of the Act. Assessee has not placed any material on record suggesting that the gratuity fund is approved. However, considering the totality of the facts, the issue is restored to the file of the Assessing Officer for deciding the issue, afresh after verifying whether the fund has been approved or not and decide the issue in the light of Tribunal s order in assessee s own case pertaining to the A.Y 2011-12. 10. Now, we take up revenue s appeal in ITA No. 1050/JP/2016. The revenue has raised the following grounds of appeal:- 1. (a) Whether on the facts and in the circumstances of the case and in law the ld. CIT(A) has erred in deleting the addition of ₹ 3735130/- made by the AO for deposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tran Nigam Ltd(2014) 363 ITR 70 (Raj.). The contention of the assessee is not found acceptable because a distinction is required to be made between employer s contribution and employee s contribution which are deductible under the separate provisions of section 43B and 36(1)(va) of the Income Tax Act, 1961 respectively. The employee s contribution is to be treated as income u/s 2(24)(x) of the Act on receipt by the assessee and the same is allowed as deduction u/s 36(1)(va) on making deposit with the concerned authority within the time allowed under the relevant Act. Hon ble Rajasthan High Court while dismissing the departmental appeal in the case of Commissioner of Income Tax vs. State Bank of Bikaner Jaipur and Commissioner of Income tax vs. Jaipur Vidyut Vitran Nigam Ltd. {2014} 99 DTR 131(Raj.) (HC) has not correctly appreciated that the provisions of section 43B are not relevant in respect of employee s contribution to P.F., the same has been contested before the Hon ble Apex Court through Special Leave Petition (SLP). The recent decision of Hon ble Gujarat High Court dated 26.12.2013 in the case of CIT vs. Gujarat State Road Transport Corporation relied upon by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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