TMI Blog2019 (6) TMI 1438X X X X Extracts X X X X X X X X Extracts X X X X ..... TMI 513 - GUJARAT HIGH COURT] Disallowance of employees contribution to PF and ESIC - Whether sum deposited beyond the due date prescribed u/s. 36(1)(va) ? - HELD THAT:- A relying on GUJARAT STATE ROAD TRANSPORT CORPORATION [ 2014 (1) TMI 502 - GUJARAT HIGH COURT] we set aside the issue to the file of the Ld. AO to decide as to whether there is any delay or not and to pass orders strictly in accordance with law after giving an opportunity of being heard to the assessee and upon taking into consideration the evidence on record and the evidences which the assessee may choose to file at the time of hearing. - ITA No. 619/Ahd/2017 & C.O. No. 77/Ahd/2017 - - - Dated:- 25-6-2019 - SHRI PRAMOD KUMAR, VICE PRESIDENT AND SMT. MADHUMITA ROY, JUDICIAL MEMBER For thr Assessee : ShriJamesKurian, Sr. DR For the Revenue : ShriTusharHemani, CA ORDER PER MADHUMITA ROY- JM: The instant appeal and cross objection filed by the Revenue and Assessee are directed against the order passed by the Ld. CIT(A) -7, Ahmedabad dated 07.12.2016 arising out of the order dated. 06.02.2015 passed by the DCIT Circle- 4(1)(1) Ahmedabad under sec. 143(3) r.w.s 144(c) of the Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at while it is true that an appeal against the said order, on the same issue, is admitted by Hon ble jurisdictional High Court but then it is not, and it cannot be, anybody s case that mere admission of appeal can vitiate binding nature of this judicial precedent. In any case, whatever we hold is, and shall always remain, subject to whatever Hon ble jurisdictional High Court has to hold on the issue, and Hon ble High Court, though in the case of another assessee i.e. Micro Ink (supra) is already seized of the matter. Respectfully following the views expressed by the coordinate bench, we hold that the assessee extending corporate guarantees to its AEs, particularly on the facts and in the circumstances of this case and when the assessee has done so in the course of its stewardship activities for its subsidiaries, does not constitute an international transaction, and, as such, no ALP adjustment can be made in respect of the same. Accordingly, entire ALP adjust stands deleted. As for the quantum of this adjustment, which is mainly the subject matter of grievance raised in revenue s appeal, once the entire ALP adjustment stands deleted, that aspect of the matter is wholly academic and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITA No. 2324/Ahd/2009 where the Hon ble Court was pleased to agree with the appellant that no positive enhancement to the book profit is justified and deleted such addition made by the Ld. AO. 8. At the time of hearing of the appeal, the order passed in assessee s own case by the Coordinate Bench has also been handed over to us by the Ld. AR. The contention of the Ld. AR has not been controverted by the Ld. DR. 9. Heard the parties and perused the relevant materials available on record. We find that while holding that amount of such disallowance under s. 14A cannot be added to the book profit u/s. 115JB, the Coordinate Bench observed as follows:- 12. Ground No. 3 relates to the deletion of the positive adjustment u/s. 14A while determining book profit u/s. 115JB of the Act. 13. While deciding the appeal for A.Y. 2009-10, the Tribunal has considered this issue at Para 38 while deciding ground no. 7 of Revenue s appeal wherein the Coordinate Bench has decided the issue in favour of the assessee by drawing support from the decision of the Hon ble High Court of Gujarat in the case of Alembic Ltd. in ITA No. 1249 of 2014. 14. As no distinguishing decision has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecide whether there was any delay or not in making such payment by the assessee. It has further observed that any delay deposit of PF/ESIC is to be disallowed in terms of the Hon ble Gujarat High Court judgment as cited above. The relevant portion of the said judgment is as follows:- 3. Learned representatives fairly agree that the aforesaid issue is squarely covered against the assessee by Hon'ble jurisdictional High Court's judgment in the case of CIT vs. Gujarat State Road Transport Corporation, 366 ITR 170 (Guj.), wherein it is categorically held that in the case of delayed deposit of employees' contribution to PF, the same will not be deductable in computing income under section 28 of the Act. The law so laid down by the Hon'ble jurisdictional High Court is binding on us. The mere fact that an appeal against the said decision is pending before the Hon'ble Supreme Court does not dilute binding nature of this judicial precedent. As regard dismissal of SLP in the case of Rajasthan State Beverages Corporation Ltd (2017) 84 taxmann.com 185 (SC), it is only elementary that when a SLP is dismissed by a non-speaking order, it does not constitute a law declared ..... X X X X Extracts X X X X X X X X Extracts X X X X
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