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TMI Blog2014 (4) TMI 1328X X X X Extracts X X X X X X X X Extracts X X X X ..... l which may be condoned for the following reasons: a. That the delay was due to unavoidable circumstances as the permission to file the appeal was received late due to communication gap. b. That looking to the short delay of two days, the same may kindly be condoned. In light of above Your Honors kindly requested to condone the delay and the appeal be directed to be heard on merits." In support of the above, an affidavit dated 09/03/2013 is also filed which is placed on record. 3. During the course of hearing, learned counsel for the assessee reiterated the contents of the aforesaid application and requested to condone the delay. Learned D.R. opposed the said application. 4. After considering the submissions of both the parties, we are of the view that there was no intentional delay by the assessee. We find merit in the aforesaid application and condone the delay. Accordingly, the appeal of the assessee is admitted. 5. The following grounds have been raised in this appeal: "1. That on the facts and in the circumstances of the case, Ld. CIT(A) erred in not allowing Rs. 10,92,792/- being the premium paid to the LIC for Gratuity Fund and confirming the addition m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the benefit of the employees of the assessee and further all the contribution made by the assessee in the said fund ultimately came back to the Textool Employees Gratuity Fund, approved by the Commissioner with effect from the following previous year. Thus, the conditions stipulated in Section 36(l)(v) of the Act were satisfied. Having regard to the facts found by the Commissioner and affirmed by the Tribunal, no fault can be found with the opinion expressed by the High court, warranting interference of this court." 10. We, therefore, keeping in view the ratio laid down by the Hon'ble Supreme Court in the aforesaid referred to case of CIT Vs. Textool Co. Ltd. (supra), delete the addition made by the Assessing Officer and sustained by the Ld. CIT(A). 11. Vide Ground No. 2, the grievance of the assessee relates to the confirmation of addition made by the Assessing Officer for Rs. 49.50 Lac being fund set apart for the security of the salary of the managers of the primary agricultural societies. 12. Facts relating to this issue, in brief, are that the Assessing Officer during the course of assessment proceedings noticed that the assessee had debited Rs. 49.50 Lac provision fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk itself and the bank shall contribute 0.50% of average of outstanding loan given by the bank to the society in the current year and 0.15% of average of outstanding of loan given by the Rajasthan State Co-operative Bank Ltd. to the Central Bank i.e. the appellant. As per para 4 of the order dated. 26-7-2004, for taking loan primary societies have to fulfill certain conditions such as first, whether the society has contributed its contribution to primary salary fund, second, whether, the society has not utilized the primary salary fund other than stated objects, third, whether the society had got accounts audited of primary salary fund and fourth, the Manager has not made fraud in any manner. In addition, it has further to be satisfied that first, whether the primary society has submitted its annual projections of growth of profit to show 30% increase compared to last year, second, whether the society had submitted to bank complete scheme of recovery of outstanding balances of loan, thirdly, whether, governing body for salary security fund has passed resolution allowing the society to take loan accounts. From these conditions, it would be clear that the contribution by the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the assessee reiterated the submissions made before the Ld. CIT(A) and further submitted that this issue is squarely covered in favour of the assessee vide order dated 15/07/2013 in the case of The Barmer Central Cooperative Bank Ltd., Barmer Vs. ACIT, Barmer in I.T.A.No. 212/Jodh/2010 for the A.Y. 2007-08, copy of which is placed at pages 140-152 of the assessee's paper book. 16. In his rival submissions, learned D.R. strongly supported the orders of the authorities below. 17. After considering the submissions of both the parties and the material on record, it is noticed that the present issue is squarely covered in favour of the assessee vide aforesaid referred to order dated 15/07/2013 in I.T.A.No. 212/Jodh/2013 for the A.Y. 2007-08 in the case of Barmer Central Cooperative Bank Ltd., Barmer Vs. ACIT, Barmer (supra) wherein the relevant findings have been given in para 9 & 10 which read as under:- "9. We have considered the submissions of both the parties and carefully gone through the material available on record. It is noticed that a similar issue has been decided in favour of the assessee in the aforesaid referred to order dated 19/02/2013. In the said order, by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the amount is to be contributed to a fund and the fund is not being managed by the assessee. The assessee may be trustee of that fund but it cannot apply the fund as per his own will. The interest, if any, earned on this fund is also to be credited to that fund, it is therefore, clear that funds stand diverted at the source and therefore, this cannot be considered as an appropriation of income but it is an expenditure. Thus the Id. CIT(A) was justified in deleting the addition." 2.8 Since the facts of the present case are similar to the facts involved in the aforesaid referred to case, so respectfully following the order dated 22-07-2011 of the ITAT Jaipur bench in ITA No.1277/JP/2010 for the assessment year 2007-08 in the case of ACIT vs Rajasthan State Cooperative Bank Ltd. Jaipur, the addition made by the AO and sustained by the id CJT(A) is deleted." 10. In view of the above discussion and by respectfully following the aforesaid referred to order dated 19th February, 2013 in the case of The Sirohi Central Coop. Bank Ltd. Jodhpur vs. ACIT, Circle-2, Jodhpur in I.T.A. No.351/JU/2012, the issue is decided in favour of the assessee." 18. Since the facts of the present iss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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