2012 (7) TMI 1158

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....te order for the sake of convenience and brevity. First we take up ITA No.651/Ahd/2012 for A.Y. 07-08. 2. The Revenue has raised the following grounds of appeal:- "1. The Ld. CIT(A) has erred in law and on facts in deleting the disallowance of deduction u/s. 36(1)(va) of Rs.2,33,405/- without appreciating fact that employee's contribution is not covered u/s. 43B but it is covered under the provisions of section 36(1)(va) r.w.s. 2(24)(x). 2. The Ld. CIT(A) has erred in law and on facts in deleting disallowance of interest amounting to Rs.24,23,976/- without appreciating the fact that the A.O had established that the interest bearing fund had been diverted for the purpose of giving interest free advances." 3. Facts ....

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....ed by the due date prescribed under the relevant Acts and is deposited late, the employer not only pays interest on delayed payment but can incur penalties also, for which specific provisions are made in the Provident Fund Act as well as the ESI Act. Therefore, the Act permits the employer to make the deposit with some delays, subject to the aforesaid consequences. In so far as the Income-tax Ac is concerned, the assessee can get the benefit if the actual payment is made before the return is filed, as per the principle laid down by the Supreme Court in Vinay Cement (2009) 313 ITR (St.) 1. In this view of the matter, we do not find any infirmity into the order passed by Ld. CIT(A). This ground of Revenue's appeal is dismissed. 8. Next gro....

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....hen a presumption would arise that investments would be out of interest free funds generated or available with the company, if the interest free funds were sufficient to meet the investments. The appellant has interest free funds in the form of equity capital of Rs.1,42,00,000/- and reserves and surplus of Rs.4,37,13,264/- and also booking advance from customers. The AO has nowhere has worked out as how the interest bearing funds have been advanced to persons without charging interest. On the contrary, the appellant has explained each and every new interest free advance as having been made for business. Considering the above fats and also the fact that similar disallowance was deleted by CIT(A)-VIII, Ahmedabad and the ITAT Ahmedabad "D" Ben....