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2014 (12) TMI 1356 - AT - Income TaxDisallowance of provision for gratuity u/s 43B - ascertained liability as allowable as deduction under section 40A(7)(b) - HELD THAT - On a perusal of the decisions relied on by the assessee, we find that this issue has been considered by various High Courts and held that the provision made by the assessee towards contribution to approved gratuity fund is an ascertained liability and is allowable as deduction under section 40A(7)(b)of the Act. It was further held that the provisions of section 40A(7)(b) overrides section 43B of the Act - See MEWAR SUGAR MILLS LTD. VERSUS DEPUTY COMMISSIONER OF INCOME-TAX 1998 (2) TMI 169 - ITAT JAIPUR , BECHTEL INDIA (P) LTD 2007 (11) TMI 2 - HIGH COURT , DELHI and COMMON WEALTH TRUST (P.) LTD., COMMISSIONER OF INCOME-TAX VERSUS COMMON WEALTH TRUST (I.) LTD. 2004 (4) TMI 51 - KERALA HIGH COURT Thus we uphold the order of the Commissioner of Income Tax (Appeals) in deleting the disallowance made for approved gratuity funds. -Decided in favour of assessee.
Issues:
Disallowance of provision for gratuity under section 43B of the Income Tax Act. Analysis: The Revenue filed an appeal against the order of the Commissioner of Income Tax (Appeals) for the assessment year 2007-08, challenging the deletion of the disallowance of provision for gratuity made under section 43B of the Act. The Assessing Officer disallowed the provision for gratuity as the assessee did not pay the amount during the relevant assessment year, citing section 43B. However, the Commissioner of Income Tax (Appeals) allowed the claim of the assessee, stating that the provision for gratuity was allowable under section 40A(7)(b) of the Act and had been accepted in the assessee's own case for previous assessment years. The Departmental Representative supported the Assessing Officer's decision, arguing that the provision for gratuity, being unpaid, was not allowable under section 43B. On the other hand, the counsel for the assessee relied on previous decisions and contended that the provision for approved gratuity fund was deductible under section 40A(7)(b), which overrides section 43B. The Tribunal examined the orders of lower authorities and the decisions cited, noting that the provision made by the assessee for an approved gratuity fund was an ascertained liability and deductible under section 40A(7)(b). The Tribunal referred to decisions by the Kerala High Court and the Delhi High Court, which emphasized that section 40A(7)(b) would prevail over section 43B, as it specifically allowed deductions for contributions to approved gratuity funds. The Tribunal upheld the order of the Commissioner of Income Tax (Appeals) in deleting the disallowance of the provision for approved gratuity funds, following the precedent set by the aforementioned court decisions. Consequently, the appeal of the Revenue was dismissed, affirming the deductibility of the provision for gratuity under section 40A(7)(b) of the Act.
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