9911796707
TMI Blog2018 (11) TMI 1654X X X X Extracts X X X X X X X X Extracts X X X X ..... y this common order. 2. In the Asstt.Year 2006-07, the assessee has taken four grounds of appeal. Similarly, in the Asstt.Year 2011-12, it has taken five grounds of appeal, but grievance of the assessee revolves around two main issues viz. (a) the ld.CIT(A) has erred in upholding disallowance of Rs. 49,82,783/- and Rs. 31,09,082/- made by the AO under section 36(1)(v) on account of deposits made by the assessee representing employees' contribution to PF account after due date in the Asstt.Years 2006-07 and 2011-12 respectively; (b) disallowance of Rs. 2,09,885/- and Rs. 3,08,247/- out of ESIC fund after specified due date in the Asstt.Year 2006-07 and 2011-12. Apart from these common issues, the assessee has challenged reopening of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the I.T. Act. In view of the above, I have reason to believe that the income of the assessee company for A.Y. 2006-07 to the extent of Rs. 1,09,69,469/- has escaped assessment. Place : Surat & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our years. Interdiction provided in proviso appended to section 147 puts an embargo on the powers of the AO to issue notice under section 148 after expiry of four years in cases where originally assessment was framed under section 143(3) of the Act. He can issue such a notice only if it is established that the assessee failed to make a return under section 139 or in response to the notice issued under section 142(1) or section 148 or to disclose all material facts fully and truly necessary for its assessment. A perusal of the reasons extracted (supra), it nowhere reveals that the AO has pointed out any fact which was not disclosed by the assessee fully and truly. The facts recorded by him with regard non-payment of employees' contribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such payment, if the payments were made before the due date of filing of return. Department has filed SLP Hon'ble Supreme Court against judgment of Hon'ble Rajasthan High Court and the said SLP was dismissed. He placed on record copy of judgment of Hon'ble Rajasthan High Court, and copy of SLP dismissed by the Hon'ble Supreme Court reported in 84 taxmann.com 185. He also contended that ITAT, Cuttack Bench has considered both these issues, and thereafter allowed the deduction. 9. On the other hand, the ld.DR relied upon the orders of Revenue authorities. 10. We have duly considered rival contentions and gone through the record carefully. There are large number of decisions of different High Courts viz. Delhi, Bombay, Rajasthan, where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d proviso to sec 40(a)(ia) of the Income Tax Act, 1961 is to be read as applicable with retrospective effect. According to this proviso, if a payee has filed its return of income disclosing the payment received, then the assessee would not be considered in default. In the present case, it has been alleged against the assessee that it made payment of interests to various private financial institutions but the assessee failed to deduct TDS. As per the decision of the Hon'ble Delhi High Court cited supra, this aspect has to be verified. Therefore, respectfully following the judgment of Hon'ble Delhi High Court (supra), we are of the view that if recipients have included the amounts of taxes embedded in the payment made by the assessee in its r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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