2016 (6) TMI 1128 - HC - Income Tax

Entitlement to deduction under section 36(1)(va) of the employees contribution to the provident fund - whether the appellant was not entitled to deduction under section 36(1)(va) of the employees contribution to the provident fund as the said amount had not been paid within the due date but before the filing of the return under section 139(1) in view of the proviso to Section 43B ? - Held that - The first question is already covered by a judgement of this court in the case of Commissioner of Income Tax, Circle-I, Kolkata vs. M/s. Vijay Shree Limited 2011 (9) TMI 30 - CALCUTTA HIGH COURT against the revenue. Transaction cost on capital gain on sale of property - Held that - CIT (Appeal) was of the opinion that the Assessing Officer had ignored evidence on record in disallowing the transaction cost to the assessee. The CIT(Appeal) based on the evidence allowed the deduction. In an appeal preferred by the revenue against that order, a point was taken that the CIT had permitted the assessee to adduce new evidence, that too, without giving an opportunity of rebuttal to the revenue, which is why there was violation of Rule 46A and ultimately at the time of hearing of the appeal, the learned Tribunal came to the finding that the deduction was allowed by the CIT (Appeal) on evidence. Mr. Dutta has not disputed that there was evidence on record. Therefore, proper course shall be to remand the matter to the Assessing Officer. He shall consider the question on the basis of evidence which may have been adduced and may be adduced as regards the transaction cost and shall decide the issue afresh in accordance with law

Summary

Issues Involved:
1. Deduction under section 36(1)(va) of the employees' contribution to the provident fund.
2. Transaction cost on capital gain on the sale of property.

Analysis:

Issue 1: Deduction under section 36(1)(va) of the employees' contribution to the provident fund:
The appeal was against a judgment by the Income Tax Appellate Tribunal concerning the assessment year 2004-05. The appellant contested the disallowance of deduction under section 36(1)(va) of the employees' contribution to the provident fund. The main contention was whether the contribution was paid before the due date or before filing the return under section 139(1). The appellant argued that the Tribunal's decision contradicted a Supreme Court ruling. The court noted that a similar issue had been decided in favor of the revenue in a previous case. Consequently, the first question was answered in favor of the revenue.

Issue 2: Transaction cost on capital gain on the sale of property:
Regarding the transaction cost on capital gain from the sale of property, the CIT(Appeal) had allowed the deduction based on the evidence presented. However, the revenue contended that new evidence was introduced without giving them a chance to rebut, violating Rule 46A. The Tribunal found that evidence was indeed present on record, and the proper course of action was to remand the matter to the Assessing Officer for a fresh decision based on the evidence provided. Therefore, the Tribunal answered the third question accordingly, allowing for a reconsideration of the transaction cost issue in accordance with the law.

In conclusion, the appeal was disposed of based on the above analysis and decisions on the issues raised.