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TMI Blog2013 (5) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... I payment. If the assessee makes the payment much before the due date before filing of the income-tax return under section 139(1) - We confirm the order of the CIT(A) on these two grounds - The Revenue's appeal stand dismissed. Regarding claim of Provision of Gratuity :- Rule 46A is applicable to additional evidence not to supporting evidence. The assessee filed before AO details of employees giving names, designation, identity and year of retirement in respect of all the employees for which gratuity provisions were made - The computation of details in respect of about 17 employees were enclosed for test check. This clearly denotes that the evidence/details of all 70 employees was filed but how the amount of provisions were calculated, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the circumstances of the case Ld. CIT(A) has erred in fact as well as in Jaw by allowing assessee's claim of deduction of Rs.50,16,000/- in the A.Y. 2003-04 being provision of gratuity made by the assessee during the F.Y. 2003-04 relevant to A.Y. 2004-05 in relation to the employees claimed to have retired during the period from 01.01.2000 to 31.12.2000 by entertaining additional evidences in violation of Rule 46A of the I.T. Rule and without appreciating the fact that the assessee failed to produce all material facts before the assessing officer necessary to ascertain the actual liability as directed by the ITAT. 3. That on the facts and in the circumstances of the case Ld. C1T(A) has erred in law by considering the payments of emplo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the provident fund payment and ESI payment, if the assessee makes the payment much before the due date before filing of the income-tax return under section 139(1). In view of the significant decision of the law governed by the Hon'ble Supreme Court as well as Hon'ble Delhi High Court, we confirm the order of the CIT(A) on these two grounds. Thus the ground nos.1 and 3 of the Revenue's appeal stand dismissed. 5. Ground no.2 relates to allowing the claim of the assessee in respect of deduction of Rs.50,16,000/- for the provision of gratuity made by the assessee. Brief facts of this ground are that in the first round of appeal, when the matter about the disallowance of the provision of gratuity went before the ITAT, the ITAT directed to al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ld. A.R., on the other hand, submitted that in response to the letter of the AO dated 12.12.2008, issued along with notice under section 142(1), the assessee filed the submission on 22.12.2008 and in the submission, the assessee had given the details of the employees giving names, designation, identity, year of retirement but the computation was submitted on test check basis in respect of only 17 employees. The AO, after submitting the computation of 17 employees, by the assessee, did not ask for any information from the assessee but by passing the order on 31.12.2008, rejected the claim of the assessee. The reason was given that the assessee has not given appropriate details of retirement of 70 employees given in the list. Our attention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CIT(A) which was examined by the CIT(A). It is not a case where the assessee has submitted the additional evidence to the CIT(A) at its own. Rule 46A is applicable in a case where the assessee himself submits the additional evidence before the CIT(A). Rule 46A is merely procedural and in case the assessee submits the additional evidence to CIT(A). The CIT(A) has to comply with the requirements of Rule 46A(3) of the Income-Tax Rules. We have also gone through the decision of the Hon'ble Delhi High Court in the case of CIT -vs- Manish Build Well (P) Ltd. 16 taxmann.com 27 (Delhi) as relied by ld. D.R. In our opinion, this decision will apply where the assessee at its own submits the additional evidence before the CIT(A). We may also menti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or fresh verification. 2. That on the facts and in the circumstances of the case Ld. C1T(A) has erred in law by considering the payments of employees' contribution to Provident Fund and ESI beyond due dates including grace period u/s.43B of the I.T. Act whereas allowability of deduction for payment of employees' contribution to Provident Fund and ESI is governed by the provisions u/s. 36(1)(va) r.w.s. 2(24)(x) as held by the 1TAT, Kolkata (Special Bench) in the case of Jt. CIT vs ITC Ltd.[299 ITR(AT) 341]." 9. Ground nos. 1 and 2 taken in this appeal are similar to ground nos. 1 and 3 taken in ITA No.1251/Kol/2010 for the assessment year 2003-04. At the time of hearing, both the parties agreed that whatever view this Tribunal may take i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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