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TMI Blog2013 (3) TMI 869X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 10B of Income-tax Act, 1961 (in short 'the Act') by reducing freight and clearing charges as also business development fee, both from export turnover as well as total turnover. Learned D.R. submitted that the decision of Special Bench in the case of CIT v. Saksoft Ltd. [313 ITR (AT) 353] had not been accepted by the Department and an appeal had been preferred before Hon'ble jurisdictional High Court. 2. We find that this ground has been raised by the Revenue only for keeping the issue alive. Special Bench in the case of Saksoft Ltd. (supra) clearly held that what was excluded from export turnover had to be excluded from total turnover also while computing deduction under Section 10B of the Act. Nothing was shown before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved Gratuity Fund or for making payments towards gratuity debt which had become payable. As per ld. CIT(Appeals), Section 40A(7)(b) was a special provision which prevailed over Section 43B. Taking this view, he allowed the claim of the assessee. 6. Now before us, learned D.R., strongly assailing the order of CIT(Appeals), submitted that there was nothing on record to show that assessee had effected payments to LIC during the relevant previous year or before the due date for filing the return. It was only a provision made in its account. Assessee had to satisfy both Section 40A(7) as well as Section 43B, if the payments were to be allowed. Assessee cannot take refuge under Section 40A(7) and make claim for a gratuity provision which was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision by way of contribution towards an approved gratuity fund or by way of gratuity to any employee shall not be allowed as a deduction in computing the income of the assessee of the previous year in which the sum is so paid. Section 43B reads as under:- 43B. Notwithstanding anything contained in any other provision of this Act, a deduction otherwise allowable under this Act in respect of - (a) any sum payable by the assessee by way of tax, duty, cess or fee, by whatever name called, under any law for the time being in force, or (b) any sum payable by the assessee as an employer by way of contribution to any provident fund or superannuation fund or gratuity fund or any other fund for the welfare of employees, [or] (c) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... similar issue, where payments were effected by an assessee for setting up or formation or contribution to a fund, and claimed under Section 40A(9) and the effect of subclause (c) to Section 43B on such claim, had come up before Hon'ble jurisdictional High Court in the case of CIT v. Shasun Chemicals and Drugs Ltd. in TC(A) No.1415 of 2007 and TC(A) No.48 of 2008 dated 25.4.2011. There the payments claimed were with regard to bonus or exgratia made to trustees of a workers union Trust. The question was whether it was hit by Section 40(A)(9) of the Act even though the payments were effected within the time specified under Section 43B(c) of the Act. Their Lordship held that Section 40(A)(9) was a overriding Section to Section 43B of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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