TMI Blog2006 (4) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... 000, passed by the learned Income-tax Appellate Tribunal, Guwahati Bench, Guwahati, in I.T.A. No. 432 (Gau) of 1997 and Cross Objection No. 12 (Gau) of 1998, relating to the assessment year 1991-92, vacating the order of the Commissioner of Income-tax (Appeals) and allowing the appeal preferred by the Revenue in so far as it relates to the decision of the Commissioner of Income-tax (Appeals) deleting an amount of Rs. 3,41,911 being the employees' contribution towards provident fund, from the income of the assessee, deduction of which was disallowed by the assessing authority under section 43B(b) of the Income-tax Act, 1961 (in short "the Act"). The appeal was admitted vide order dated April 30, 2001, on the following substantial questions of law: "1. Whether section 43B of the Act empowers the assessing authority to make addition to the income of the assessee of the amount representing the employees' contribution to the provident fund, which although credited to the employees account but not deposited during the relevant accounting year and also having not been claimed as a deduction in the profit and loss account of the relevant assessment year? 2. Whether the Income-tax App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention has placed reliance on a Division Bench decision of this court in Assam Cooperative Apex Bank Ltd. v. CIT reported in [1978] 112 ITR 257 and a Division Bench decision of the Calcutta High Court in ITO v. R.L. Rajghoria reported in [1979] 119 ITR 872. Mr. Bhuyan, learned standing counsel appearing on behalf of the respondents, on the other hand, supporting the order passed by the learned Tribunal has submitted that the learned Tribunal has rightly vacated the order of the Commissioner of Income-tax (Appeals) in allowing the claim of Rs. 3,41,911 directing deletion of the said amount from the income of the assessee, as admittedly the said amount was realised by the assessee being the employer from its employees towards the provident fund amount and was not deposited within the previous year and therefore the said amount has to be treated as income of the assessee as he is not entitled to any deduction of such amount from his income under section 43B of the Act. Learned standing counsel has further submitted that whether he has claimed deduction or not is immaterial as the said amount is automatically treated as income of the assessee and the assessee will be entitled to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of contribution to any provident fund or superannuation fund or gratuity fund or any other fund for the welfare of the employees subject to making of actual payment by the assessee, as aforesaid. In the instant case there is no dispute that the employees' contribution towards provident fund was deducted by the appellant/assessee from their salaries but the said amount was not deposited with the authority but was kept with the assessee and therefore there was no actual payment of the said amount during the previous year. It is also not in dispute that the assessee is entitled to deduction of the said amount from the income in computing the income referred to in section 28 of the Act. The benefit of deduction from an income allowable under section 43B will be available to the assessee only if the amount so deducted by the employer/assessee from the salaries of the employees is actually paid by him within the time allowed under the said provision. The assessee having not paid the same after deduction from the salaries of the employees and keeping with him is not entitled to claim deduction. The said amount therefore has to be treated as the income of the assessee in computing the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Tribunal to the subject-matter of the appeal only. The learned Tribunal has therefore jurisdiction to go into every aspect of the assessment proceeding before the taxing authorities and also to go into the question as to whether such assessment was made in accordance with law or not provided a ground is taken before the learned Tribunal in that respect or additional ground by way of amendment is allowed to be taken by the learned Tribunal. The Tribunal has also the jurisdiction to examine the question of law, which arose from the facts as found by the taxing authorities, which has a bearing on the tax liability on the assessee. In Assam Co-operative Apex Bank Ltd. [1978] 112 ITR 257, a Division Bench of this court while dealing with the provision of section 254 of the Act has held that the Appellate Tribunal has to confine itself to the grounds raised in the appeal but it is not open to the Tribunal to raise a ground or permit the party who had not appealed to raise a ground which will work adversely to the appellant. It has also further been held that if the Department did not file any appeal or cross objection it cannot be allowed to agitate other matters, which were no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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