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TMI Blog2017 (5) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... ow from Shri Shah as to whether the assessee has filed any supportive evidence in furtherance to the above extracted directions or not. His reply is in negative. We therefore affirm the second disallowance as well by following the above extracted detailed discussion. - Decided against assessee. Disallowance to contribution made towards provident funds paid before the due date of filing of the return - Held that:- There is no dispute that the assessee did not file the requisite details in light of the above extracted directions that the same had been paid before the due date. The fact remains that the law on this issue is very much against the assessee as of now. The assessee fails in its third substantive ground as well. - ITA No.2290/Ahd/2013 - - - Dated:- 25-4-2017 - SHRI N. K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI S. S. GODARA, JUDICIAL MEMBER For The Assessee : Mr. J. P. Shah, A.R. For The Revenue : Mr. K. Madhusudhan, D.R. ORDER PER S. S. GODARA, JUDICIAL MEMBER This assessee s appeal for assessment year 2003-04 arises against the CIT(A)-V, Surat s order dated 29.10.2012, passed in appeal no. CAS/V/319/2010-11, in proceedings u/s.143(3) of the Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that since no actual payment was made in the assessment year in question u/s.43B(f) of the I.T. Act , 1961, therefore, no deduction could be allowed to the assessee. However, considering the recent decision of Hon'ble Supreme Court in the case of CIT vs. Alom Extrusions Ltd .(supra), it is clear that the omission of the second proviso to section 43B of the Income-tax Act, 1961, would effect retrospectively, with effect from 01/04/1988, therefore, it is clear that no disallowance could be made with the help of section 43B(f) of the I.T. Act, 1961 as it is done by the Assessing Officer. The assessee filed details of payment made on account of leave salary expenses at page No.2 of the paper-book which support the contention of the ld. counsel for the assessee that the amount in question have been paid on or before the due date of filing of the return. However, such details were not filed before the Assessing Officer for his examination. It is also clear that the complete addresses of the guards were not filed before the Assessing Officer for consideration at the level of the authorities below. The ld. counsel for the assessee, however, submitted during the course of ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of ₹ 90,000/- being interest. According to the Assessing Officer, the assessee has debited a sum of ₹ 13,72,607/- towards financial interest and charges. He has also observed that the assessee has introduced unsecured loans of ₹ 20 lacs and paying interest @ 18%. The interest on such loans and accounts of the parties come to be ₹ 2,30,968/-. The assessee extended loans and advance to Shri R.P.Singh of ₹ 5 lacs without charging any interest. The assessee in compliance to the show- cause notice stated that loan is advanced to one of the major partners who is pioneer of the business and they thought it is not rational, moral and ethical to charge interest from him. The Assessing Officer, however, did not accept the contention of the assessee and calculated the interest @ 18% and made the addition of ₹ 90,000/-. It was submitted before the Learned CIT(Appeals) that there is opening debit balance of ₹ 5 lacs on the first day of the previous year. No other submission was made. The Learned CIT(Appeals), therefore, noted that there is a diversion of interest-bearing funds for non-business purposes and, accordingly, upheld the addition. 23. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to charge the interest on the loan account of Shri R.P.Singh. In this view of the matter, we set aside the order of the authorities below and restore this issue to the file of Assessing Officer with a direction to verify, if any interest is charged, in the earlier assessment year or not and decide this issue accordingly as per observation given in this order by giving reasonable sufficient opportunity of being heard to the assessee. As a result, ground No.5 of the appeal of the assessee is allowed for statistical purposes. 7. We sought to know from Shri Shah as to whether the assessee has filed any supportive evidence in furtherance to the above extracted directions or not. His reply is in negative. We therefore affirm the second disallowance as well by following the above extracted detailed discussion. This second substantive ground is also declined. 8. This leaves us with assessee s last substantive ground challenging correctness of employees provident fund disallowance of ₹ 79,85,372/- on the ground that the same was not paid within the time limits specified under the relevant law. We deem it appropriate to reproduce learned co-ordinate bench s remand directions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Revenue s favour, the same would not apply in facts of the instant case as it amounts to revisiting of the issue going much beyond the co-ordinate bench s direction in the first round. It pleads that the first round directions have attained finality. The issue therefore is sought to be adjudicated without following subsequent decision of hon ble jurisdictional high court s decision hereinabove. The assessee then quotes hon ble apex court s decision in (2016) 9 SCC 44 (SC) Anita International vs. Tungabadra Sugar Works Mazdoor Sangh that even if an order is void, it continues to have operation until set aside by a court of competent jurisdiction. We are unable to accept this plea. The fact remains that the law on this issue is very much against the assessee as of now. We find that a similar issue arose before this tribunal in a third member case in B. T. Patil Sons vs. ACIT (2013) 59 SOT 61 (Pune) (URO) wherein a co-ordinate bench of this tribunal was to give effect to a third member decision u/s. 255(4) of the Act. In the intervening period, the said bench took notice of its jurisdictional high court s decision to decide the issue as per its latest decision. The said co-ordin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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