TMI Blog2021 (8) TMI 997X X X X Extracts X X X X X X X X Extracts X X X X ..... ntribution to Provident Fund - employee s contribution to P.F. amounting to ₹ 5,23,396/- to Provident Fund was not paid within the due dates specified u/s. 36(i)(va) - HELD THAT:- The Hon ble Jurisdictional High Court of Gujarat in the case of Gujarat Road Transport Corporation [ 2014 (1) TMI 502 - GUJARAT HIGH COURT] held that assessee is entitled for the deduction only if the amount is credited to the relevant funds before the due date, therefore, respectfully following the decision of the Hon ble Gujarat High Court as referred above, we do not find any infirmity in the decision of the Ld. CIT(A). Therefore, this ground of appeal of the assessee is dismissed. - ITA No. 197/Ahd/2019 - - - Dated:- 23-8-2021 - Shri Mahavir Prasad, Judicial Member And Shri Amarjit Singh, Accountant Member For the Revenue : Shri S.S. Shukla, Sr. D.R. For the Assessee : Ms. Urvashi Shodhan, A.R. ORDER PER : AMARJIT SINGH, ACCOUNTANT MEMBER:- This assessee s appeal for A.Y. 2015-16, arises from order of the CIT(A)-02, Ahmedabad dated 22-11-2018, in proceedings under section 143(3) of the Income Tax Act, 1961; in short the Act . 2. The assessee has raised followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 42,751/-. The relevant of the decision of the ld. CIT(A) is reproduced as under:- Decision: 3.3. I hove carefully considered the facts of the case, assessment order and submission of the appellant. The AO has made the disallowance of export commission of ₹ 23,84,170/- on the ground that appellant has not been able to prove the identity of the commission agents as no copy of agreement executed between the foreign agents and the assessee has been furnished and no proof of rendering the services on the basis of commission has been paid been provided. The AO without prejudice has also disallowed the above expenditure as the IDS has not been deducted on the above foreign commission. 3.4. The appellant has submitted that it has submitted before the AO all copies of invoices of export commission, lax residency certificate of non resident received along with copy of Form 15CA 15CB to establish the genuineness of expenditure wherever it was available and that appellant is not required to deduct IDS on the foreign commission as services were rendered outside India and the commission agents did not had PE in India. Appellant has further submitted that C1T[A) in the ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e course of appellate proceedings before us, the ld. counsel submitted that identical issue on similar fact has been adjudicated against the assessee by the Co-ordinate Bench of the Ahmedabad vide ITA No. 830/Ahd/2018 assessment year 2013-14. The ld. counsel Departmental Representative has submitted that this issue has been decided in favour of the revenue by the above referred decision of the ITAT. 7. Heard both the sides and perused the material on record. Without reiterating the facts, we have gone through the decision of the Co-ordinate Bench of the ITAT as referred above. The relevant part of the decision of the ITAT is reproduced as under:- 8. We have heard the rival contentions of both the parties and perused the materials available on record. In the present case the assessee has claimed deduction on account of commission paid to the overseas parties on the export sales amounting to ₹ 29,61,337/- only. But the same was disallowed by the AO on account of two reasons. Firstly, the assessee failed to furnish the documentary evidences such as the identity of the party, the services rendered by such parties, details of the exports made by it through the commission a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he commission payment. Therefore, respectfully following the decision of the ITAT Ahmedabad in the case of the assessee itself for assessment year 2013-14 as elaborated above, this ground of appeal of the assessee is dismissed. Ground Nos. 3 5 (confirming addition u/s. 36(1)(iii) of ₹ 23,13,140/- in respect of proportionate interest on capital advances) 9. During the course of assessment, the Assessing Officer noticed that assessee has shown capital advances of ₹ 1,92,76,000/- under the head long term loan and advances. On verification of the detail, the Assessing Officer observed that assessee has paid advances on various dates towards purchase of intangible assets to H.L. Pharma Co Korea. On perusal of the profit and loss account, the Assessing Officer noticed that assessee has made interest payment of ₹ 46,48,000/- on the loan and advances acquired by the assessee company. The Assessing Officer was of the view that assessee has obtained substantial loans from banks and financial institutions and was paying substantial interest on the loan. But it has not received intangible assets during the financial year relevant to the assessment year under consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and considering the order of CIT(A) in preceding years disallowance made by AO is confirmed. 11. During the course of appellate proceedings before us, the ld. counsel contended that similar issue on identical facts in the case of the assessee itself vide ITA No. 830-831/Ahd/2018 dated 18-06-2 has been adjudicated in favour of the assessee. On the other hand, the ld. Departmental Representative could not prove contrary to the submission of the assessee that issue is covered in favour of the assessee by the above referred decision of the ITAT Ahmedabad. 12. Heard both the sides and perused the material on record. Without reiterating the facts as mentioned above, with the assistance of ld. representatives, we have gone through the decision of the Co-ordinate Bench of the ITAT vide ITA No. 830-831/Ahd/2018 dated 18-06-2001 in the case of assessee itself. The relevant part of the decision is reproduced as under:- 15. We have heard the rival contentions of both the parties and perused the materials available on record. The assessee in the case on hand claimed to have made advances to M/s HL Pharma Co., Korea for acquiring the technical know-how and thus such advance repre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end income. [Para 7] 15.3 In view of the above, it can be concluded that the assessee has not utilized the borrowed fund for making the advance to the party as discussed above. Thus the question of capitalizing the element of interest attributable on the advances given by the assessee for acquiring the technical know-how does not arise. Hence the ground of appeal of the assessee is allowed. 15.4 In the result the appeal filed by the assessee is partly allowed. It is clear from the facts reported in the findings of the ld. CIT(A) as elaborated above in this order that assessee has made capital advance of ₹ 1,92,76,000/- to M/s. H.L. Pharma Company for purchase of technical know-how in the financial year 2012-13 relevant to the assessment year 2013-14. The Co-ordinate Bench of the ITAT vide ITA No. vide ITA No. 830-831/Ahd/2018 dated 18-06-2 has adjudicated the issue in favour of the assessee as per the decision referred above. The Co-ordinate Bench of the ITAT has adjudicated vide above referred decision that the impugned advance was made out of the interest free fund and no borrowed fund has been used therefore respectfully following the decision of Co-ordin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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