TaxTMI 
TaxTMI 
2025 (1) TMI 1468
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....the 4 appeals filed by the Department are barred by limitation, comprising of delay ranging from 119 days to 129 days. The application for said condonation of delay are almost identically worded. For the sake of convenience, the application for AY 2018-19 is extracted as under: "1. Order of CIT (A) was received in the office of the PCIT-5, Kolkata on 23.01.2024. 2. Appeal Scrutiny Report was called by the PCIT-5 vide letter dated 23.01.2024. 3. Physical folders were not readily available for as the old set of staff members had been transferred out. 4. As per instructions, appeal effects is to be given before sending Appeal Scrutiny Report for which physical folders are mandatorily to be searched or reconstructed. 5. Even before finding out physical records, the Assessing Officers Shri Sandip Guha was transferred out and I joined as ACIT, Circle-34, Kolkata on 16.02.2024. 6. When I joined the staff members informed me about the pending appeal effects and ASR in case of assessee but they informed that physical folders are still not readily available. 7. With lot of effects, the physical folders were found in the end of Fe....
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....ation Fund to part fund the gap in Actuarial Valuation 36(1)(iv) r.w.r 87 2,08,86,57,648 7,10,68,55,297 5,64,49,19,729 6,48,84,64,174 2. Contribution to approved Gratuity Fund to part fund the gap in Actuarial Valuation 36(1)(iv) r.w.r 103 63,85,13,674 33,11,01,366 - - 3. Alleged belated remittance of Employee's Contribution to Provident Fund 36(1)(va) - 8,38,35,219 - - 4 Total 2,72,71,71,322 7,52,17,91,882 5,64,49,19,729 6,48,84,64,174 2.1 The grounds of appeals are also on these substantive grounds. During the course of hearing, the Ld. DR read out extensively from various portions of the Ld. AO's order and assailed the action of Ld. CIT(A). On the issue of contribution to approved superannuation fund to bridge the gap between actuarial valuation and actual contribution, the Ld. DR stated that on a strict construction of section 36(1)(iv) read with Rule 87 of IT Rules, the additions made by the Ld. AO were justified. Secondly, on the issue of contribution to approve gratuity fund which was also for funding the gap between actual contribution and actuarial valuation, the Ld. DR relied on the pr....
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.... of such contribution. This has not been disputed by the revenue that the amount paid by the respondent/assessee in excess of 27% of the salaries of the employees are neither towards ordinary annual contribution nor towards initial contribution and the payment was necessitated due to short-fall discovered in the course of actuarial valuation of the funds which is in exceptional circumstances and has been made to ensure that the superannuation funds will be able to discharge its obligation 10 the employees. The learned Tribunal bearing the above principle in mind and also taking note of the decision of the co- ordinate bench of the Tribunal in Glaxo Smithkline Pharmaceuticals case (supra) allowed the assessee's appeal. The revenue had challenged the order passed by the learned tribunal in the case of Glaxo Smithkline Pharmaceuticals (supra) before the High Court of Judicature at Bombay CIT v. Glaze Smithkline Pharmaceuticals IT Appeal No. 2232 of 2011 which was dismissed by judgment dated 6th March, 2013. 7. However, we are conscious of the fact that the Hon'ble Division Bench while dismissing the appeal had made an observation that even if the expenditure as claime....
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....ty fund or not. Section 36(1)(v) does not contain any condition regarding any restriction regarding ordinary annual contribution to the gratuity fund. He cannot take into account any fact other than the fact of compliance with the conditions made in section 36(1)(v); that is to say, that the payment has been made to the contribution towards the approved gratuity fund created for the exclusive benefit of the employees under an irrevocable trust. If for any reason the Commissioner in granting the approval allows the excess contribution to be made, that cannot make the gratuity fund as unapproved. If there be any conflict between rule 103 and rule 3 of the part of the Fourth Schedule regarding the conditions for approval of the gratuity fund, it is for the Commissioner to take appropriate steps in that behalf. But it is not for the ITO to question the validity of the gratuity fund as approved. 7. Our attention has been drawn to a decision of the Andhra Pradesh High Court in CIT v. Super Spg. Mills Lad [1987] 166 ITR 518. In that case also the ITO restricted the claim of the assessee towards contribution to the gratuity fund to 819 per cent but the Commissioner (Appeals) and t....
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....ta Port Trust Non-Contributory Provident Fund. The certificate from the Tax Auditor and affidavit from the Financial Advisor and Chief Accounts Officer of the appellant also affirm the same. On perusal of the 3CD report, it is noted that all the impugned contributions were deposited within a couple of days of the artificial due date, the maximum delay being 08 days. The artificial 'due date' mentioned in sr. no 20(b) of the 3CD report as 15th of the following month had to be entered by the Tax Auditor due to limitations of the concerned e-filing software which mandates filing of some date compulsorily in the concerned column. Thus, the usual 'due date' of 15th of the next month as specified under clause 38 of the Employees Provident Fund Scheme framed under Employees Provident Funds Miscellaneous Provisions Act, 1952 is not found applicable to the appellant. Section 36(1) (va) explains the term due date as Due date" means the date by which the assessee is required as an employer to credit an employee's contribution to the employee's account in the relevant fund under any Act, rule, order or notification issued thereunder or under any standing order, award, c....