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TMI Blog2019 (4) TMI 1101X X X X Extracts X X X X X X X X Extracts X X X X ..... d due date - HELD THAT:- Admittedly the PF received from the employees were deposited by the assessee company in the PF account beyond the due dates as prescribed in PF Act. In the case of CIT vs. Gujarat State Road Transport Corporation [ 2014 (1) TMI 502 - GUJARAT HIGH COURT] pleased to hold that where the employer has not credited the sum received by it as employees contribution to employees account in relevant funds on or before due date as prescribed in Explanation to Section 36(1)(va), the assessee shall not be entitled to deduction of such amount though he deposits the said sum before the due date prescribe u/s 43B i.e. prior to filing of return u/s 139(1) of the Act. Since in this particular case, the employees contribution toward PF was not deposited before due date in terms of statutory rules as mentioned hereinabove, the Learned CIT(A) confirmed such addition - Decided against assessee Disallowance of the claim of deduction u/s 80IB - assessee has not claimed deduction in respect of its windmill unit u/s 80IA(4) neither filed a revised return within the stipulated time - HELD THAT:- As decided in assessee's own case [ 2017 (2) TMI 730 - ITAT AHMEDABAD] the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the order dated 31.12.2014 passed by the Commissioner of Income Tax (Appeals)-9, Ahmedabad arising out of the order dated 18.03.2013 30.01.2014 passed under section 143(3) of the Income Tax Act, 1961 (The Act) for the Assessment Years 2010-11 2011-12. Both the appeals have been filed by the same assessee, thus the same are heard analogously and are being disposed of by a common order. First we take up ITA No.744/Ahd/2015 for A.Y. 2010-11. Following grounds are preferred by the assessee: 1. The Learned Commissioner of Income Tax (Appeals) has erred in confirming disallowance made by the Assessing officer for preliminary expenses of ₹ 1,13,068/- u/s.35D(2) of the I.T.Act,1961 treating the same as Capital expenses. 2. The Learned Commissioner of Income Tax (Appeals) has erred in confirming the disallowance made by the Assessing Officer of ₹ 55,776/- on account of alleged late payments made in respect of Employees' contribution to Provident Fund treating the same as income u/s.2(24)(x) of the I.T. Act, 1961. 3. The Learned Commissioner of Income Tax (Appeals) has erred in confirming the addition made by the Assessing Officer of ₹ 8,37 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Textile Ltd. 284 ITR 238 (Guj.) following the ratio laid down by the Supreme Court in the matter of Brooke Bond India (supra) such expenses was not allowed u/s 35D of the Act, the said sum of ₹ 1,13,068/- claimed as revenue expenditure has been disallowed by the Learned AO which was further confirmed by the First Appellate Authority. Hence, the instant appeal. 4. At the time of hearing of the appeal, the Learned AR submitted before us that claim made in the return is in respect of the pre-operative expense of ₹ 5,63,340/- brought forward from the earlier year. 1/5th of the said expenditure have been written off in accordance with the provisions of section 35D. The said expenditure was incurred for filing and stamping charges of ROC documents for increase in the authorized capital which was in the scrutiny assessment made u/s 143(3) of the Act for immediately preceding A.Y. 2008-09 was not disallowed. However, with all his fairness, the Learned AR submitted that similar disallowance made by the Learned AO for A.Y. 2009-10 and confirmed by the Learned CIT(A) was appealed by the assessee before the Learned ITAT which is still pending. He, ultimately prayed for deletion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0, the addition made herein by the Learned AO is not sustainable in the eye of law as contended by the Learned AR before us. However, the Learned DR relied upon the orders passed by the authorities below. 8. Heard the respective parties, perused the relevant materials on record. We find that admittedly the PF received from the employees were deposited by the assessee company in the PF account beyond the due dates as prescribed in PF Act. The Hon ble Jurisdictional High Court in the case of CIT vs. Gujarat State Road Transport Corporation (2014) 265 CTR 64 (Guj.) pleased to hold that where the employer has not credited the sum received by it as employees contribution to employees account in relevant funds on or before due date as prescribed in Explanation to Section 36(1)(va), the assessee shall not be entitled to deduction of such amount though he deposits the said sum before the due date prescribe u/s 43B i.e. prior to filing of return u/s 139(1) of the Act. Since in this particular case, the employees contribution toward PF was not deposited before due date in terms of statutory rules as mentioned hereinabove, the Learned CIT(A) confirmed such addition of ₹ 55,776/- w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mill is ₹ 20,54,724/- and the company has claimed the deduction u/s 80IB(5) at 30% of the income instead of eligible 100% of the profit u/s 80IA(4)(iv) of the Act. However, the working done by the Learned AO on this issue is to certain extent different from the claim of the assessee and the Learned AO ultimately came to a finding that the assessee is eligible for deduction u/s 80IB only to the extent of ₹ 1,26,86,992/- and not ₹ 1,35,24,691/- as claimed by the Assessee. In the result a sum of ₹ 8,37,699/- has been treated as income of the assessee and added to its total income. 11. In fact, such claim of the assessee for allowance of deduction u/s 80IA(4) with regard to the income of wind mill by and under the submission dated 13.03.2013 was not found acceptable by the Learned AO, following the judgment of Hon ble Supreme Court in the case of M/s. Goetze India Ltd. reported in 157 taxman 1 (SC) by observing that the assessee was not entitled to additional deduction since it has not filed a revised return of income. Against the said order the assessee went up in appeal but without any result. Hence, the instant appeal. 12. At the time of hearing of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... private litigants might adopt. 22. We have heard the rival contentions and perused the material placed before us. Through this ground Revenue has challenged the ld. CIT(A)'s order allowing addition deduction claimed u/s 80IB of the Act at ₹ 11,22,920/-. We observe that assessee is eligible to claim deduction u/s 80IB of the Act. In the return of income ₹ 54,36,002/- was claimed as deduction u/s 80IB of the Act which was revised to ₹ 65,58,922/- during the course of assessment proceedings duly supported by necessary calculation and report of Chartered Account. Ld. Assessing Officer denied the additional deduction by taking a view that assessee should have revised the return which has not been done so. We further observe that ld. Assessing Officer has not objected to the revised quantum of deduction claimed by assessee at ₹ 65,58,922/- which as per assessee was the correct and legitimate amount as per the provisions of section 80IB of the Act. Ld. Assessing Officer has merely disallowed the claim for not filing revised return of income. It is an established proposition of law that the correct income of the assessee has to be assessed by the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m of the considered opinion that the ratio of Goetz India Ltd. (Supra) will first be attracted in this case and accordingly, the A.O. is directed to accept the revised deduction claimed u/s.80IB of ₹ 65,58,922/-. This ground of appeal is allowed. 23. We are therefore, of the view that ld. CIT(A) has rightly allowed the revised claim of assessee u/s 80IB of the Act at ₹ 65,58,922/-. We therefore, find no reason to interfere with the order of ld. CIT(A). We uphold the same. This ground of Revenue is dismissed. Respectfully, following the judgment passed by the Co-ordinate Bench, we delete such addition to the tune of ₹ 8,37,699/- which was recomputed by the Assessing Officer for calculating the deduction u/s 80IB of the Act and delete the addition of ₹ 20,52,724/- towards the 100% profit of windmill u/s 80IA(4)(iv) of the Act. Hence, appeal of the assessee is partly allowed. Now we take up ITA No.745/Ahd/2015 for A.Y. 2011-12. 14. The assessee has challenged the order passed by the Commissioner of Income Tax (Appeals) mainly in not adjudicating the ground of appeal as raised by the appellant challenging the action of the Assessing officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the assessment order. He further contended that since the very basis of computation of assessment order by the Assessing Officer is wrong; instead of the figure of declared income available with the revised return the figure appearing in the original return has been taken into account without rejecting the revised return so filed by the assessee on 28.02.2013 within the one year from the date of completion of the A.Y. 2011-12, the entire assessment proceeding is liable to set aside. The order impugned since not taken into consideration this particular aspect of the matter which is germane to the issues involved in this matter is therefore bad in law and liable to be quashed. However, no forceful argument was advanced by the Learned DR against the said submission made by the Learned Counsel appearing for the assessee. 17. We have heard the respective parties, perused the relevant materials available on record. It is a fact as already discussed above that the error as committed by the Learned AO needs to be rectified. Rather the same ought to have been directed to be rectified by the Learned First Appellate Authority when the same was brought to his notice in appeal by the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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