TMI Blog2020 (3) TMI 1259X X X X Extracts X X X X X X X X Extracts X X X X ..... he CBDT. Approval of a higher authority was required to be taken. This is not done. Hence, the disallowances are bad in law. Disallowance of service tax payment u/s 43B is against the facts of the case. Thus delete the same. Disallowance of employees contribution towards provident fund - The undisputed fact is that the payment was made prior to the due date of filing of return of income. Under such circumstances the payment is allowable as a deduction. This issue was considered in the case of Sh. Vijay Kumar [ 2019 (10) TMI 13 - ITAT CHANDIGARH] adjudicated in view of the assessee. Respectfully following the same, we delete the disallowance and allow this ground of the assessee - I.T.A. No. 2572/Kol/2019 - - - Dated:- 18-3-2020 - Shri J. Sudhakar Reddy, Accountant Member For the Appellant : Sh. Somnath Ghosh, Adv. For the Respondent : Sh. Supriyo Pal, JCIT, Sr. DR ORDER Per J. Sudhakar Reddy, AM: This is an appeal filed by the assessee directed against the order of the Commissioner of Income Tax (Appeals)-9, Kolkata [ CIT(A) for short] dated 26.03.2019 u/s 250 of the Income Tax Act, 1961 ( the Act for short) for AY 2015-16. 2. The assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2015 and hence, the question of disallowance u/s 43B does not arise. On disallowance made of payment of employees contribution towards provident fund, he relied on a number of case laws and submitted that, as the entire remittances were made prior to filing of the return of income, no disallowance should be made u/s 43B of the Act. For this proposition he relied on the case of CIT vs. Vijay Shree Ltd. (2014) taxman 12 (Cal)(Mag). 5. Written submissions were made by the ld. DR. The ld. DR opposed the contention of the assessee and submitted that the assessee has not objected to the jurisdiction of the AO as required u/s 120(4) of the Act and under those circumstances, he cannot question the jurisdiction by way of raising additional grounds. He pointed out that the assessee had participated in the assessment proceedings and under those circumstances the ground of the assessee should be dismissed. 6. On the issue of the assessee travelling beyond the items listed out for scrutiny through CASS, he submitted that there is no such legal bar on the AO disallowing items which were patently no allowable under the Act. On merits he submitted that, the service tax an amount of ₹1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 50 lacs as his returned income, then the scrutiny assessment can be done only by the ACIT/DCIT and not by the ITO who does not have the jurisdiction to do so. For ready reference, Instruction No. 1/2011 is reproduced below: INSTRUCTION NO. 1/2011 (F. NO. 187/12/2010-IT(A-1), DATED 31-1-2011 References have been received by the Board from a large number of taxpayers, especially from mofussil areas, that the existing monetary limits for assigning cases to ITOs and DCs/ACs is causing hardship to the taxpayers, as it results in transfer of their cases to a DC/AC who is located in a different station, which increases their cost of compliance. The Board had considered the matter and is of the opinion that the existing limits need to be revised to remove the abovementioned hardship. An increase in the monetary limits is also considered desirable in view of the increase in the scale of trade and industry since 2001, when the present income limits were introduced. It has therefore been decided to increase the monetary limits as under: Income Declared (Mofussil areas) Income Declared (Metro cities) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by ACIT, Circle-27, Haldia. 6. We note that the CBDT Instruction is dated 31.01.2011 and the assessee has filed the return of income on 29.03.2013 declaring total income of ₹ 50,28,040/-. As per the CBDT Instruction the monetary limits in respect to an assessee who is an individual which falls under the category of non corporate returns the ITO s increased monetary limit was upto ₹ 15 lacs; and if the returned income is above ₹ 15 lacs it was the AC/DC. So, since the returned income by assessee an individual is above ₹ 15 lakh, then the jurisdiction to assess the assessee lies only by AC/DC and not ITO. So, therefore, only the AC/DC had the jurisdiction to assess the assessee. It is settled law that serving of notice u/s. 143(2) of the Act is a sine qua non for an assessment to be made u/s. 143(3) of the Act. In this case, notice u/s. 143(2) of the Act was issued on 06.09.2013 by ITO, Ward-1, Haldia when he did not have the pecuniary jurisdiction to assume jurisdiction and issue notice. Admittedly, when the ITO realized that he did not had the pecuniary jurisdiction to issue notice he duly transferred the file to the ACIT, Circle-27, Haldia on 24.09. 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re bad in law. 14. Be it as it may, the assessee has filed before us evidences that the service tax in question was paid before closing of the final year 31st March, 2015. Proof of payment was also submitted. The dates of payment are as follows: Date Particulars Vch Type Debit Credit 29-4-2014 To Corporation Bank Payment 10,38,500.00 5-5-2014 To Corporation Bank Payment 10,38,500.00 24-9-2014 To Corporation Bank Payment 17,613.00 5-12-2014 To Corporation Bank Payment 2,26,600.00 9-12-2014 To Corporation Bank Payment 1,33,900.00 10-2-2015 To Corporation Bank Payment 2,67,800.00 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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