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TMI Blog2021 (9) TMI 554X X X X Extracts X X X X X X X X Extracts X X X X ..... n necessary approval from the competent authority viz., Principal Commissioner of Income Tax for the year under consideration and the deduction falls squarely within the ambit of Section 36(1)(iv) r/w. Section 40A(9)?" 3.We have heard Mr.T.Ravikumar, learned Senior Standing Counsel appearing for the appellant/revenue and M/s.N.V.Lakshmi, learned counsel appearing for the respondent/assessee. 4.It is not disputed before us that identical substantial questions of law were decided in the assessee's own case in T.C.A.Nos.287, 288, 296 and 298 of 2020 dated 08.10.2020. The operative portion of the judgment reads as follows: "3.We need not labour much to go into the facts of the case as similar question has been decided by the Division Bench of this Court on identical facts in the case of Commissioner of Income Tax v. Kattabomman Transport Corporation Limited [(268 ITR 507 Mad)]. 4. In fact, the Tribunal had decided the above issue in favour of the assessee by referring to the assessee's own case in I.T.A.No.862/Mds/2015 for the Assessment Year 2010-11, which was decided in favour of the assessee by the Tribunal, following the decision in the case of Kattabomman Transport C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss approval of the Commissioner of Income-tax. 6.The assessee herein did not claim that fund to which contribution has been made was one set up under the scheme of the Employees' Provident Funds Act. On the other hand, it sought exemption from the provisions of that Act for the scheme framed by it on the ground that the benefits available to the employees under that scheme were not less than those available under the provisions of the Employees' Provident Funds Act. The order granting exemption from the provisions of the Act, cannot be treated as an order recognising the scheme as one framed under the Act. The very object of exemption granted under section 17 of the Employees' Provident Funds Act is to render the scheme immune from the application of the provisions of the Employees' Provident Funds Act, subject to such conditions as may be prescribed while granting such exemption. 7.The scheme referred to in section 2(38) of the Income-tax Act is a scheme either framed under the Employees' Provident Funds Act, or a scheme approved by the Commissioner of Income-tax. The assessee's claim does not answer either of these requirements for this assessment year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therein, we answer this question against the assessee and in favour of the revenue. The second question referred to us at the instance of the assessee is required to be answered in favour of the assessee in the light of the decision rendered by this Court in the case of CIT v. Cheran Transport Corpn. Ltd. [1996] 219 ITR 203, wherein a similar donation was held to be an allowable deduction. Following that judgment and for the reasons stated therein, we answer the second question in favour of the assessee and against the revenue." 5.The learned senior standing counsel appearing for the revenue does not dispute the fact that the above decision had answered the substantial questions of law framed in this appeal in favour of the assessee in the assessee's own case for the assessment year 2007-2008, 2009-2010 and 2011-2012 and the year under consideration is AY 2010-2011. However, the endeavour of the learned senior standing counsel for the revenue is to place before this Court certain decisions which were not brought to the notice of this Court earlier and if those decisions are considered, the Court may take a different view than what was taken in the judgment dated 08.10.2020. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f in the present appeal as the substantial questions of law are covered by the earlier decision which has attained finality. Further, the learned counsel submitted that what was argued before this Court was raised before the Tribunal by way of a miscellaneous application in M.P.No.226/Mds/2015 which was dismissed by order dated 25.02.2016 and the appellant is not on appeal against the said order which has attained finality and the revenue should not be permitted to canvass the points now sought to be urged before this Court for the first time and not when the earlier appeals were heard. 9.After elaborately hearing the learned counsels for the parties, we are of the view that the decision in the assessee's own case in T.C.A.Nos.287, 288, 296 and 298 of 2020 dated 08.10.2020 will hold good and the order passed by the Tribunal is liable to be confirmed. We support such conclusion with the following reasons. 10.Firstly, as rightly pointed out by the learned counsel for the respondent/assessee, identical issue was canvassed before the Tribunal by way of a miscellaneous petition which was considered by the Tribunal and the Tribunal examined the factual background as to why the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute is hardly five assessment years of which for three assessment years, the Court has decided the matter in favour of the assessee and the fourth year is the year under consideration in this appeal. Therefore, the Tribunal took note of the facts and as to under what circumstances remittance had to be made and when the respondent/assessee had no option except to accept those employees who had exercised option and joined the services of the Board to be entitled to all service benefits as if they were employees of the Port Department of the State Government. Hence, we are of the view that the case on hand has to be dealt with entirely on a different yardstick, more particularly, on the factual position which we have elaborated above. 12.At this juncture, we may refer to the decision of the Hon'ble Supreme Court in the case of Commissioner of Income Tax vs. Textool Co. Ltd., [(2013) 216 Taxman 327(SC)], wherein the Hon'ble Supreme Court explained the real intention of Section 36(1)(v) of the Act. It was held that from a bare reading of the said provision, the real intention behind the provision is that the employer should not have any control over the funds of the irrevocable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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