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TMI Blog2017 (11) TMI 853X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessment was framed by ITO Ward- 2(4), Kolkata u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as the Act ) vide his order dated 28.12.2006 for assessment year 2004-05. Shri Saurabh Kedia, Ld. Authorized Representative appeared on behalf of assessee and Shri Arindam Bhattacherjee, Ld. Departmental Representative appeared on behalf of Revenue. 2. The grounds of appeal and additional grounds of appeal raised by the assessee are as follows:- 1.That on the facts and in the circumstances of the case, the Ld. CIT(Appeals) erred in law in confirming the disallowance of contribution to the gratuity fund amounting to ₹ 4,00,438/- which was pending for approval, without appreciating the fact that the fund was approved however due to change in name of the fund, the revised petition for approval had been filed with the Commission. 2. That on the facts an in the circumstances of the case the Ld. CIT(Appeals) erred in not appreciating the fact that the appellant ad filed the petitions for granting of approval and conducted regular follow-ups in connection with the approval process, in spite of which no formal approval had been granted to the appellant and has t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al. Therefore the additional grounds have been admitted after having reliance on the principles laid down in the judgment of Hon'ble Supreme Court in the case of National Thermal Power Company reported in 229 ITR 383 (SC). 4. The issue raised in its grounds of appeal is that Ld. CIT(A) erred in confirming the order of Assessing Officer by sustaining disallowance of ₹4,00,438/- on account of contribution made to the gratuity fund. 5. Briefly stated facts are that assessee is a limited company and engaged in the business of consultancy, engineers and related services. The old name of assessee was VAI Engineering Automation (P) Ltd. which was re-named as VAI Engineering and Automation (P) Ltd. vide order dated 14.08.2003 by ROC. 6. The assessee (VAI (P) Ltd) was maintaining a gratuity fund for its employees which was approved by Ld. CIT vide order dated 27.01.2003 with effect from 01.01.1997. The assessee in the year under consideration contributed a sum of ₹4,00,438/- towards the gratuity fund and claimed the deduction in the profit and loss account but offered the same to tax in the computation of income. 7. However, assessee during the course of asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessment year 2009-10 in the own case of the assessee where the Tribunal was pleased to allow the claim of assessee in ITA No.1944/Kol/2013 for A.Y 2009-10 vide order dated 28.02.2017. On the other hand, Ld DR before us submitted that Hon'ble Tribunal in assessee s own case in ITA No.1944/Kol/2013 (supra) was pleased to restore the matter back to the file of AO for verification of the facts whether necessary changes has been approved by the CIT in the Deed of Gratuity Fund of assessee. In rejoinder Ld. AR submitted that matter can be restored back to the file of AO with a direction to allow the claim of assessee if Ld. CIT approved the change made in the Deed of Gratuity Fund subsequently. In this regard Ld. DR did not raise any objection if the matter be restored back to the file of AO. 11. We have heard the rival contentions of both the parties and perused the material available on record. In the case before us the deduction was claimed by assessee during the assessment proceedings for the amount contributed towards the gratuity fund but Authorities Below denied to entertain the claim of assessee for the reason as discussed above. However, we find that in the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt of contribution to superannuation fund and (ii) the addition of ₹ 46,33,577/- all account of contribution to gratuity fund subject to the condition that the Deed of Variation of aforesaid Superannuation Fund and the Gratuity Fund of the appellant company are approved by the Commissioner of Income-tax at time of giving effect to this order, if the Commissioner of Income-tax does not approve the Deed of Variation of aforesaid Superannuation Fund and the Gratuity Fund, the additions of ₹ 23,42,193/- and ₹ 46,33,577/- on account of contributions to the Superannuation Fund and the Gratuity Fund respectively are to be treated as confirmed. For statistical purpose, these grounds of appeal are allowed . 3. We do not find any infirmity in this order of the first appellate authority. The Id. CIT(Appeals) has directed the Assessing Officer to verify the facts and pass necessary consequential orders. The directions are specific. Under these circumstances, we see no reason to interfere with the same. Respectfully following the same, we remit the appeal to the file of AO for fresh verification in terms of our above direction and in accordance with the law. Hence, this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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