2017 (5) TMI 1495

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....stified in law in deleting addition of Rs. 17,01,90,088/ made by the AO on account of delay in deposit of employees' contribution to CPF/GPF/ESI u/s 36 (1)(va)? (ii) Whether in the facts and circumstances of the case the ITAT justified in law in holding that payments of Rs. 2,04,83,00,000/- on account of transmission/wheeling/SLDC Charges to M/s RRVPN were not for technical service liable for making TDS u/s 194J of the IT Act as such provisions of section 40(a)(ia) are not applicable?" 3. Issue no.1, counsel for the respondent has relied upon the decision of this Court in CIT Vs. Jaipur Vidyut Vitran Nigam Limited (2014) 363 ITR 307 (Raj.), wherein it has been held as under: "6. We have considered the arguments advanced by the learned c....

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....n perusal of Sec.36(1)(va) and Sec.43(B)(b) and analyzing the judgments rendered, in our view as well, it is clear that the legislature brought in the statute Section 43(B)(b) to curb the activities of such tax payers who did not discharge their statutory liability of payment of dues, as aforesaid; and rightly so as on the one hand claim was being made under Section 36 for allowing the deduction of GPF, CPF, ESI etc. as per the system followed by the assessees in claiming the deduction i.e. accrual basis and the same was being allowed, as the liability did exist but the said amount though claimed as a deduction was not being deposited even after lapse of several years. Therefore, to put a check on the said claims/deductions having been made....

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.... assessees and not under the due date of filing of return. 22. We have already observed that till this provision was brought in as the due amounts on one pretext or the other were not being deposited by the assessees though substantial benefits had been obtained by them in the shape of the amount having been claimed as a deduction but the said amounts were not deposited. It is pertinent to note that the respective Act such as PF etc. also provides that the amounts can be paid later on subject to payment of interest and other consequences and to get benefit under the Income Tax Act, an assessee ought to have actually deposited the entire amount as also to adduce evidence regarding such deposit on or before the return of income under sub-se....

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....ein. (2) Where any sum referred to in sub-section (1) is credited to any account, whether called "Suspense account" or by any other name, in the books of account of the person liable to pay such income, such crediting shall be deemed to be credit of such income to the account of the payee and the provisions of this section shall apply accordingly. (3) Where any sum is paid or credited for carrying out any work mentioned in sub-clause (e) of clause (iv) of the Explanation, tax shall be deducted at source- (i) on the invoice value excluding the value of material, if such value is mentioned separately in the invoice; or (ii) on the whole of the invoice value, if the value of material is not mentioned separately in the invoice. (4) No....