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2015 (10) TMI 244 - AT - Income TaxDisallowance of claim of deduction u/s.36(1)(va) - late payment of employee s contribution towards ESIC though the same was paid before the due date of the return of income - Held that - It is an admitted fact that the assessee in the instant case has deposited the employees contribution to ESIC after the due dates as per provisions of the ESIC Act. However, it is very clear from the chart that the employees contribution to ESIC fund were made much prior to the due date of filing of the return of income. We find the issue stands covered in favour of the assessee by the decision of the Hon ble Bombay High Court in the case of CIT Vs. Ghatge Patil Transport Ltd. reported in 2014 (10) TMI 402 - BOMBAY HIGH COURT wherein it has been held that the decision of the Supreme Court in Alom Extrusions Ltd. 2009 (11) TMI 27 - SUPREME COURT applies to employees contribution as well as employer s contribution and therefore are covered under the amendment to section 43B of the I.T. Act, 1961. Since the assessee in the instant case has admittedly deposited the contributions before the due date of filing of the return of income, therefore, no disallowance is called for u/s.36(1)(va) r.w.s. 2(24)(x) warranted - Decided in favour of assessee. Disallowance of claim proportionate interest on the belief that interest bearing funds were used for extending interest free loans and advances for other than business purpose - Held that - Since in the instant case it is an admitted fact that no disallowance was made by the AO on account of such interest free advance to the above 4 parties, therefore, it will not be equitable on the part of the revenue to take a different stand now in respect of the amounts which were the subject matter of previous years assessment. We accordingly set aside the order of the CIT(A) and direct the AO to delete the disallowance made. See Commissioner Of Income-Tax Versus Sridev Enterprises 1991 (1) TMI 52 - KARNATAKA High Court - Decided in favour of assessee.
Issues Involved:
1. Disallowance of deduction under Section 36(1)(va) of the Income Tax Act, 1961, for late payment of employee's contribution towards ESIC. 2. Disallowance of proportionate interest due to interest-free loans and advances extended for non-business purposes. Issue-wise Detailed Analysis: Issue 1: Disallowance of Deduction under Section 36(1)(va) Facts and Arguments: - The assessee's appeal contested the CIT(A)'s confirmation of the AO's decision to disallow a deduction of Rs. 1,20,765 under Section 36(1)(va) due to late payment of employee's ESIC contributions. - The AO noted that the contributions were not remitted to the ESIC fund within the due dates as prescribed under Section 36(1)(va). - The AO rejected the assessee's explanations and distinguished the decisions cited, making the addition under Section 36(1)(va), stating that Section 43B provisions would not apply. Tribunal's Decision: - The Tribunal acknowledged that the contributions were deposited before the due date for filing the return of income, although after the due dates under the ESIC Act. - The Tribunal referenced the Bombay High Court decision in CIT Vs. Ghatge Patil Transport Ltd., which held that the Supreme Court's decision in Alom Extrusions Ltd. applies to both employee and employer contributions, covered under the amendment to Section 43B. - Consequently, since the contributions were made before the due date for filing the return, no disallowance under Section 36(1)(va) read with Section 2(24)(x) was warranted. - The Tribunal set aside the CIT(A)'s order and allowed the ground raised by the assessee. Issue 2: Disallowance of Proportionate Interest Facts and Arguments: - The AO observed that the assessee, engaged in the Hotel and Hospitality Industry, had extended interest-free loans and advances totaling Rs. 2,02,89,180 to four parties, while having substantial interest-bearing funds. - The AO disallowed Rs. 14,29,048 in interest, arguing insufficient interest-free funds and lack of business expediency for the loans. - The assessee contended that it had adequate non-interest-bearing funds of Rs. 87.16 crores and that the loans were monitored by the lending bank, ensuring no diversion for non-business purposes. The assessee also highlighted that similar disallowances were not made in previous assessments. Tribunal's Decision: - The Tribunal reviewed the ledger accounts and found that the advances to the four parties were carried forward from previous years without any additions or subtractions. - The Tribunal noted that in assessments for A.Y. 2008-09 to 2010-11, no disallowance under Section 36(1)(iii) was made for these advances. - Citing the Karnataka High Court decision in CIT Vs. Sridev Enterprises, the Tribunal emphasized the need for consistency and definiteness in the Revenue's approach. It held that since no disallowance was made in earlier years, it would be inequitable for the Revenue to take a different stand now. - The Tribunal set aside the CIT(A)'s order and directed the AO to delete the disallowance of Rs. 14,29,048, allowing the assessee's ground. Conclusion: The Tribunal allowed the appeal filed by the assessee, setting aside the CIT(A)'s orders on both issues. The Tribunal ruled that no disallowance was warranted under Section 36(1)(va) for the late payment of ESIC contributions, and similarly, no disallowance of proportionate interest was justified for the interest-free loans and advances extended for non-business purposes. The appeal was thus allowed in favor of the assessee.
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