TaxTMI 
TaxTMI 
2017 (6) TMI 436
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....posed by a consolidated order. 1. First, we take up assessee's appeal in ITA No. 1040/JP/2016. The assessee has taken following grounds of appeal:- "1. That the learned CIT Appeals-1, Jaipur not allowed and no accepted the revised return filed by the assessee bank before completion of assessment proceedings. 2. That the learned CIT Appeals-1, Jaipur not allowed the claim of Rs. 4,91,27,253/- claimed by the assessee u/s 36(1)(v) of the income tax act, 1961 for payment to gratuity fund in revised return. 3. That the assessee have crave permission to add, alter, amend or delete any ground or grounds of appeal on or before the filing of this appeal." 2. All the grounds of appeal are interlinked and the main issue involved is agai....
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....ve heard the rival contentions of both the parties, perused the material available on record and also gone through the orders of the authorities below. The ld. CIT(A) had rejected the claim on the basis that the filing of revised return ought to have been made before 21.03.2015. In the instant case, the assessee made claim during the assessment proceedings by filing revised return on 24.2.2016. Undisputedly time for filing return u/s 139(5) had already elapsed. The ld. Counsel for the assessee submitted that such claim was allowed in the assessee's own case pertaining to the assessment year 2011-12 in ITA No. 120/JP/2015 wherein the Tribunal has held as under:- At the outset, we have been informed that the issue as raised by the revenue ....
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....deduction u/s 36(1)(v) of the Income Tax Act, 1961 and if not allowed in this section than it is allowed u/s 37(1) of the Income Tax Act, 1961. In support argument appellant has relied on rulings mentioned in para 3.2 above in which Tribunal, Hon'ble High Court and even Hon'ble Supreme Court said that if the payment made to benefit of employees than it is business expenditure and allowable u/s 37(1) of the Income Tax Act, 1961. On perusal of decision of jurisdiction ITAT in assessee's own case for A.Y 2007-08 & 2008-09 in ITA No. 940/JP/2011 & 196/JP/2012 respectively and CIT(A) -1's order for AY 10-11 vide ITA No. 259/12-13, it is also seen that claim of gratuity has been allowed u/s 36(1)(v) read with section 40(A)(9) of the Act. I ....
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....material on record suggesting that the gratuity fund is approved. However, considering the totality of the facts, the issue is restored to the file of the Assessing Officer for deciding the issue, afresh after verifying whether the fund has been approved or not and decide the issue in the light of Tribunal's order in assessee's own case pertaining to the A.Y 2011-12. 10. Now, we take up revenue's appeal in ITA No. 1050/JP/2016. The revenue has raised the following grounds of appeal:- "1. (a) Whether on the facts and in the circumstances of the case and in law the ld. CIT(A) has erred in deleting the addition of Rs. 3735130/- made by the AO for depositing the employees' contribution to PF & ESI beyond the prescribed time limit provided....
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.... Amount Due Date Actual Date April 18,13,964/- 15.05.2012 23.05.2012 July 19,21,166/- 15.08.2012 24.08.2012 Total 37,35,130/- The AR of the assessee was asked to justify the allowability of the same. In response the AR of the assessee furnished that: "Since PE and ESI has been paid before due date of filling of return the same should not be disallowed in view of the decisions of CIT vs. Alom Extrusions Ltd. (Civil Appeal No. 7771 of 2009) and CIT. Vs. (a) State Bank of Bikaner & Jaipur (b) Jaipur Vidyut Vitran Nigam Ltd(2014) 363 ITR 70 (Raj.)." The contention of the assessee is not found acceptable because a distinction is required to be made between "employer's con....
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....) applies, the assessee shall be entitled to deduction in computing the income referred to in section 28 with respect to such sum credited by the assessee to employee's account in the relevant fund or funds on or before the "due date" mentioned in explanation to section 36(1)(va)". While giving the said decision the Hon'ble Gujarat High Court has dissented from the views taken by several High Courts in the matter and has observed in Para 7.12 as under:- "We are of the opinion that in the present case, and as discussed herein above, only on view is possible as canvassed on behalf of the revenue and as observed by under section herein above and we are not in agreement with the view taken by the Himachal Pradesh High Court; Karnataka Hig....