2021 (9) TMI 966

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....cle Ward-14(2)(1), (in short DCIT/ Assessing Officer) for the A.Y. 2015-16 vide order dated 24.11.2017 under section 143(3) r.w.s 147 of the Income-tax Act, 1961 (hereinafter referred to as 'the Act'). 2. The only issue in this appeal of assessee is against the order of CIT(A) upholding the action of the Assessing Officer in disallowing employer's contribution to superannuation fund. For this, assessee has raised the following ground:- "1. On the facts and in the circumstances of the case and in law, the Hon'ble Commissioner of Income -tax 14(2)(1), Mumbai [Ld. Assessing Officer] in disallowing employer's contribution to superannuation fund amounting to Rs.55,35,549 u/s 36(1)(iv) of the Income Tax Act, 1961 (Income Tax Act, 1961....

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.... was pending to be accorded approval. The Assessing Officer disallowed the contribution to the superannuation fund since the same was unapproved as on date of the Assessment Order. Section 36 of the income-tax Act, 1961, provides for deductions that are admissible while computing the income referred to in section 28. One of the deductions which is made admissible under clause (iv) of section 36 is "any sum paid by the assessee by way of contribution towards a recognized provident fund or an approved superannuation fund'. Clause(v) of section 36(1) similarly provides for deduction of "any sum paid by the assessee, by way of contribution towards an approved gratuity fund provided the same is under an irrevocable trust". A plain reading of....

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....s from time to time deductions admissible U/s 30 to 36 cannot be claimed u/s 37. Therefore, in my opinion, the claim of the assessee has been correctly denied by the A.O. and accordingly, I confirm the order of the A.O. The Ground No. 1 and 2 are dismissed." Aggrieved, now assessee is in appeal before Tribunal. 4. We have heard the rival contentions and gone through the facts and circumstances of the case. Before us, the learned Counsel for the assessee stated that the facts are very clear that the assessee has applied before PCIT on 28.03.2011 for approval of superannuation fund and it is pending for approval. The learned Counsel for the assessee stated that the assessee filed application before PCIT on 28.03.2011 along with requisit....

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....s not deposited money in terms of creation of the trust, therefore, in our view the Tribunal on such facts is well justified in holding that the claim is just, proper and allowable. A just and reasonable claim deserves to be allowed. We find that both the appellate authorities have found it allowable on the facts found and is essentially a finding of fact based on material and evidence on record. No substantial question of law can be said to emerge out of the order of the Tribunal, so as to call for interference of this Court. We also do not find any perversity in the order impugned. The appeals are dismissed." 6. Further, he also relied on other case laws of Calcutta High Court in the case of CIT vs. Continental Commercial Co. Ltd. [199....

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....val is accorded, inasmuch as the approval would relate back to the date of application for such approval. If, however, for any reason, the approval is not granted, the Department may withdraw the benefit extended to the assessee under section 40A(7). However, the assessee has to satisfy all the three conditions mentioned in section 40A(7)(b)(ii). The condition of creating an approved gratuity fund would be satisfied if the assessee makes an application for such approval on or before 1-1-1976, irrespective of the fact whether such approval was accorded to the assessee before the assessment was completed." 7. When the facts were confronted to the learned CIT DR, he only argued that the approval has not yet been received, hence, Assessing O....