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TMI Blog2020 (10) TMI 798X X X X Extracts X X X X X X X X Extracts X X X X ..... Sivagnanam And Mrs. Justice V. Bhavani Subbaroyan For the Appellant : M/s.R.Hemalatha [In all appeals] For the Respondent : M/s.S.Sriniranjani [In all appeals] JUDGMENT T.S.SIVAGNANAM, J. These appeals have been filed by the Revenue under Section 260 A of the Income Tax Act, 1961 ('the Act' for brevity), challenging the common order dated 22.09.2017 passed by the Income Tax Appellate Tribunal ('the Tribunal' for brevity), Madras 'B' Bench, Chennai, made in I.T.A.No.1657/Mds/2017, I.T.A.No.1555/Mds/2017, I.T.A.No.1658/Mds/2017, I.T.A.No.1659/Mds/2017 for the Assessment Years 2007-08, 2009-10, 2009-10, 2011-12 respectively. The Revenue has raised the following Substantial Questions of Law for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oning and finding of the Tribunal is proper especially when as per Section 36(1)(iv) the employer's contribution towards recognized provident fund or approved superannuation alone is to be allowed as a deduction subject to the conditions prescribed thereunder which is not the case on hand? I.T.A.No.1658/Mds/2017: 1.Whether the Tribunal was correct in holding that the CIT(A) cannot enhance the assessment on a reference made by the AO especially when the provision of Section 251(1)(a) confers the power to enhance on the CIT(A) and there is no bar in the AO from reporting the short coming in the order passed for the purpose of enhancement? 2. Whether on the facts and in the circumstances of the case, the Income Tax Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proved superannuation alone is to be allowed as a deduction subject to the conditions prescribed thereunder which is not the case on hand? 2. We have elaborately heard M/s.R.Hemalatha, learned Senior Standing counsel for the Revenue and M/s.S.Sriniranjani, learned counsel appearing for the respondent/assessee. 3. We need not labour much to go into the facts of the case as similar question has been decided by the Division Bench of this Court on identical facts in the case of Commissioner of Income Tax v. Kattabomman Transport Corporation Limited [(268 ITR 507 Mad)]. 4. In fact, the Tribunal had decided the above issue in favour of the assessee by referring to the assessee's own case in I.T.A.No.862/Mds/2015 for the Assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dly has not been recognised by the Commissioner of Income-tax, as the recognition of the fund either under the Act or under the Employees' Provident Funds Act is a pre-condition for allowing any contribution to the provident fund as a deduction in view of section 2(38) of the Act and section 36 of the Act. 5. Section 2(38) of the Act defines 'recognised provident fund' as meaning a provident fund which has been and continues to be recognised by the Chief Commissioner or Commissioner in accordance with the rules contained in Part A of the Fourth Schedule, and includes a provident fund established under a scheme framed under the Employees' Provident Funds Act, 1952 (Act 19 of 1952). Section 36(1)(iv) permits the deduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... answer either of these requirements for this assessment year. A scheme which has been exempted from the provisions of the Provident Funds Act does not become a scheme framed under that Act. The words under the Act clearly imply and require that the scheme is one which is subject to the Act. The scheme to which an Act is rendered inapplicable by virtue of exemption is not a scheme framed under the Act. 8. Our answer to the first question therefore is in favour of the revenue and against the assessee. 9. So far as the second question is concerned, that question has to be answered in favour of the assessee. The amount paid by the assessee to the Government in order to enable the Government to credit the amount so paid to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of this Court in the case of Anna Transport Corpn. Ltd. v. CIT[1995] 215 ITR 800 wherein, it was held that the amount paid towards unexpired portion of the route permit is not a revenue expenditure. Following that judgment and for the reasons stated therein, we answer this question against the assessee and in favour of the revenue. The second question referred to us at the instance of the assessee is required to be answered in favour of the assessee in the light of the decision rendered by this Court in the case of CIT v. Cheran Transport Corpn. Ltd.[1996] 219 ITR 203, 1 , wherein a similar donation was held to be an allowable deduction. Following that judgment and for the reasons stated therein, we answer the second question i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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