2020 (10) TMI 798

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....), 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 consideration: I.T.A.No.1657/Mds/2017: 1. Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in holding that the contribution made towards superannuation fund was to be treated as business expenditure and is to be allowed u/s.37 of the Incometax Act even though it was an unapproved Fund during the year and hit by the provisions of Section 36(1)(iv) r.w.s.40A(9)? 2. Whether the reasoning an....

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....pecially 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 Appellate Tribunal was right in holding that the contribution made towards superannuation fund was to be treated as business expenditure and is to be allowed u/s.37 of the Incometax Act eventhough it was an unapproved Fund during the year hit by Section 36(1)(iv) r.w.s.40A(9)? 3. Whether the reasoning and finding of the Tribunal is proper especially when as per Section 36(1)(iv) the employer's contribution towards recognized provident fund o....

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....s 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 Assessment Year 2010-11, which was decided in favour of the assessee by the Tribunal, following the decision in the case of Kattabomman Transport Corporation Limited (cited supra). The operative portion of the said judgment reads as follows: "There are two references before us one by the Revenue and the other at the instance of the assessee. Both the references relate to the assessments made for the year 1976-77 under the provisions of the Inc....

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....es 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 deduction or contribution made only to a recognised provident fund or an approved superannuation fund. Under section 2(38) of the Act, it is only a scheme framed under the Employees' Provident Funds Act which is deemed to be an approved provident fund for the purpose of the Income-tax Act even though such a fund has not received the express approval of the Commissioner of Income-tax. 6. The assessee herein did not claim that f....

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....estion 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 provident fund account of the Government employees who were at that point of time working in the Corporation, is part of the amount payable by the Corporation to the Government for availing of the services of Government employees. The fact that the Government after receipt of the amounts from the Corporation, chooses to credit that amount to the provident fund account of the concerned employee of the Government, does not render the payment....