DCIT, Jaipur V. M/S RAJ. STATE GANGANAGAR SUGAR MILLS LTD., Jaipur

ITA 1115/JPR/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74850 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-02-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 21-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K KHANDELWAL
• Assessee Lawyers: T C JAIN
• Keywords: Business expenditure
• Section: 43B; 37(1)

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JAIPUR BENCH : JAIPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO.1115/JP/2011 (A.Y. 2008-09) DCIT, CIRCLE-6, VS. M/S. RAJASTHAN STATE JAIPUR. GANGANAGAR SUGAR MILLS LTD., 4 TH FLOOR, NEHRU SAHAKAR BHAWAN, BHAWANI SINGH ROAD, JAIPUR. PAN NO. AAACR 8906 R (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI T.C. JAIN. DEPARTMENT BY : SHRI S.K. KHANDELWAL - D.R. DATE OF HEARING : 16/01/2014. DATE OF PRONOUNCEMENT : 26/02/2014. O R D E R PER N.K. SAINI, A.M THIS IS AN APPEAL BY THE DEPARTMENT AGAINST THE OR DER DATED 12/10/2011 OF LD. CIT (A)-II, JAIPUR. THE FOLLOWIN G GROUNDS HAVE BEEN RAISED IN THIS APPEAL: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND LAW THE LEARNED CIT(A) HAS ERRED IN:- 2 I) IN DELETING ADDITION OF RS. 77,29,000/- HOLDING THA T THE EXCISE DUTY CANNOT BE PART OF VALUATION OF THE FINISHED STOCK U/S 145A AND CAN ONLY BE LEVIED ON THE REMOVAL OF GOODS FROM THE PR EMISES. II) IN DELETING ADDITION OF RS. 2,89,20,000/- MADE BY D ISALLOWING EXPORT PASS FEE CHARGES BY HOLDING THAT THE EXPORT PASS FE E WAS ALLOWABLE EXPENDITURE IN SPITE OF THE FACT THAT IT WAS CONTIN GENT LIABILITY. III) IN DELEING ADDITION OF RS. 6,86,900/- MADE BY THE A O ON ACCOUNT OF ACCRUED INTEREST EARNED ON DECREED DISPUTED COMPENS ATION DEPOSITED IN ASSESSEES BANK ACCOUNT. IV) IN ALLOWING THE CLAIM OF PRIVILEGE FEE OF RS. 13,00 ,00,000/- PAID TO EXCISE COMMISSIONER WITHOUT APPRECIATING THE FACT T HAT THE SAID EXPENSES ARE OF CAPITAL NATURE. V) IN DELETING ADDITION OF DEPOSITING THE ESI BEYOND T HE PRESCRIBED TIME DESPITE THE FACT THAT AS PER SECTION 36(1) (VA) EMP LOYEES CONTRIBUTION SHOULD HAVE BEEN DEPOSITED IN TIME AS PRESCRIBED IN THE RELEVANT LAW. SECTION 43B PERMITS DELAYED PAYMENT IF PAID BEFORE FILING OF ROI AS PER SECTION 139(1) IN CASE OF EMPLOYERS CONTRIBUTI ON NOT IN THE CASE OF EMPLOYEES CONTRIBUTION. 2 THE FIRST ISSUE IN THIS APPEAL RELATES TO THE DELE TION OF ADDITION OF RS. 77,29,000/- MADE BY THE ASSESSING OFFICER, BY H OLDING THAT THE EXCISE DUTY COULD NOT BE PART OF VALUATION OF THE FINISHED STOCK UNDER SECTION 145A OF THE I.T. ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT IN SHORT) AND COULD ONLY BE LEVIED ON THE REMOVAL OF GOODS FR OM THE PREMISES. 3. AS REGARDS TO THIS ISSUE, LEARNED COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET STATED THAT THIS ISSUE IS SQUARELY COVERED I N FAVOUR OF THE ASSESSEE VIDE ORDER DATED 03/06/2011 OF THE ITAT, JAIPUR BEN CH B' JAIPUR IN I.T.A.NO. 1342/JP/2010 FOR THE A.Y 2007-08 IN ASSE SSEES OWN CASE. 3 4. THE AFORESAID CONTENTION OF LEARNED COUNSEL FOR T HE ASSESSEE WAS NOT CONTROVERTED BY THE LEARNED D.R. 5. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PART IES, IT IS NOTICED THAT AN IDENTICAL ISSUE HAS BEEN DECIDED BY THE COO RDINATE BENCH OF THE ITAT, JAIPUR IN ASSESSEES OWN CASE VIDE ORDER AFOR ESAID DATED 03/06/2011 WHEREIN RELEVANT FINDINGS ARE GIVEN IN P ARA 2.1 & 2.2 WHICH READ AS UNDER:- 2.1 THE FIRST GROUND OF APPEAL OF THE REVENUE IS TH AT THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 67,30,000/- H OLDING THAT EXCISE DUTY CANNOT BE PART OF VALUATION OF THE FINISHED ST OCK U/S 145A AND CAN ONLY BE LEVIED ON THE REMOVAL OF GOODS FROM THE PRE MISES. 2.2 WE HAVE HEARD BOTH THE PARTIES. THE ISSUE OF IN CLUDING EXCISE DUTY IN THE CLOSING STOCK HAS BEEN DELETED BY THE TRIBUN AL FOR THE ASSESSMENT YEARS 2003-04 AND 2004-05. FOLLOWING THE ORDER OF THE TRIBUNAL FOR THE ASSESSMENT YEAR 2003-04 AND 2004-0 5, THE INCLUSION OF EXCISE DUTY IN CLOSING STOCK WAS DELETED BY THE TRI BUNAL IN THE CASE OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2005-06 VIDE O RDER DATED 27 TH MARCH, 2009 IN ITA NO. 1635/ JP/2008. FOLLOWING THE ORDER FOR THE ASSESSMENT YEAR 2005-06, THE TRIBUNAL DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2006-07.THE L D. CIT(A) HAS DELETED THE ADDITION BY FOLLOWING THE ORDER OF THE TRIBUNAL FOR EARLIER ASSESSMENT YEAR. TAKING THE CONSISTENT VIEW, WE HOL D THAT THE CLOSING STOCK SHOULD NOT HAVE BEEN INCREASED BY AN AMOUNT O F RS. 67.30 LACS REPRESENTING THE EXCISE DUTY. THE CLOSING STOCK OF THE PREVIOUS YEAR BECOMES THE OPENING STOCK OF SUBSEQUENT YEAR. IN EA RLIER YEAR, THE AMOUNT WAS ADDED TO CLOSING STOCK TO THE EXTENT OF RS. 45.84 LACS AND HENCE THE AO COULD HAVE MADE THE ADDITION REPRESENT ING THE DIFFERENCE BETWEEN RS. 67.30 LACS AND RS. 45.84 LAC S EVEN IF EXCISE DUTY WAS TO BE INCLUDED. MOREOVER, AS PER PROVISIONS OF SECTION 43B, THE EXCISE DUTY ON THE CLOSING STOCK IF PAID BEFORE FIL ING OF THE RETURN OF 4 INCOME IS TO BE ALLOWED AS DEDUCTION AND THEREFORE, THERE WAS NO CASE OF MAKING ENTIRE ADDITION OF RS. 67.30 LACS. HENCE, FINALLY, IT IS CONCLUDED THAT THE AO WAS NOT JUSTIFIED IN MAKING T HE ADDITION OF RS. 67.30 LACS. 6 . SINCE THE FACTS FOR THE YEAR UNDER CONSIDERATION ARE SIMILAR TO THE FACTS INVOLVED IN THE PRECEDING YEAR I.E. A.Y. 2007 -08, SO, BY RESPECTFULLY FOLLOWING THE AFORESAID ORDER OF THE ITAT, JAIPUR B ENCH B' JAIPUR IN ASSESSEES OWN CASE, WE DO NOT SEE ANY MERIT IN THI S GROUND OF THE DEPARTMENTAL APPEAL. 7 . VIDE GROUND NO.II, THE GRIEVANCE OF THE DEPARTMEN T RELATES TO THE DELETION OF ADDITION OF RS. 2,89,20,000/- MADE BY T HE ASSESSING OFFICER BY DISALLOWING EXPORT PASS FEE CHARGES CONSIDERING THE SAME AS CONTINGENT LIABILITY. 8 . AS REGARDS TO THIS ISSUE, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THIS ISSUE IS COVERED VIDE AFORESAID ORDER DAT ED 03/06/2011 WHEREIN RELEVANT FINDINGS HAVE BEEN GIVEN IN PARA 4.1 TO 4. 4. 9 . LEARNED D.R. ALTHOUGH SUPPORTED THE ORDER OF THE ASSESSING OFFICER, BUT COULD NOT CONTROVERT THE AFORESAID CONTENTION O F THE LEARNED COUNSEL FOR THE ASSESSEE. 5 10 . AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PAR TIES, IT IS NOTICED THAT AN IDENTICAL ISSUE HAVING SIMILAR FACTS HAS AL READY BEEN DECIDED BY THE ITAT JAIPUR BENCH B' JAIPUR IN ASSESSEES OWN CASE IN I.T.A.NO. 1342/JP/2010 FOR THE A.Y. 2007-08 AND THE RELEVANT FINDINGS HAVE BEEN GIVEN IN PARA 4.4 OF THE ORDER DATED 03/06/2011 WHI CH READ AS UNDER:- 4.4 WE HAVE HEARD BOTH THE PARTIES. THE HON'BLE APE X COURT VIDE JUDGMENT DATED 19 TH JULY, 2001 DECIDED THAT EXPORT PASS FEE BEING IMPOSED ON INDUSTRIAL ALCOHOL WAS NOT PERMISSIBLE. THE DECISION IS SILENT ON ISSUE OF EXPORT PASS FEE ON RECTIFIED SPIRIT FOR POTABLE USE. THE ASSESSEE COMPANY IS REGULARLY PURCHASING THE RECTIF IED SPIRIT FROM DISTILLERIES OF UP WHO HAS BEEN CONTINUOUSLY CHARGI NG EXPORT PASS FEE AND EXPORT PERMIT FEE AND THE ASSESSEE IS PAYING TH E SAME AS PART OF THE PURCHASE PRICE. THE SUPPLIER IS DEPOSITING EXPO RT PASS FEE IN GOVT. A/C AND THE ASSESSEE HAD NO RIGHT TO RECOVER THE SA ID AMOUNT FROM THE GOVT. CONSIDERING ALL THE FACTUAL ASPECTS, THE TRIB UNAL WHILE DECIDING THE APPEAL OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2005-06 HELD THAT PAYMENT IN RESPECT OF EXPORT PASS FEE IS ALLOWABLE. TAKING THE CONSISTENT VIEW, WE HOLD THAT THE LD. CIT(A) WAS JU STIFIED IN DELETING THE ADDITION OF RS. 2,85,20,000/-. 11 . SO, RESPECTFULLY FOLLOWING THE AFORESAID REFERRED TO ORDER DATED 03/06/2011, WE DO NOT SEE ANY MERIT ON THIS ISSUE I N THE DEPARTMENTAL APPEAL. 12. THE NEXT ISSUE VIDE GROUND NO.III RELATES TO THE DE LETION OF ADDITION OF RS. 6,86,900/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF ACCRUED 6 INTEREST EARNED ON DECREED DISPUTED COMPENSATION DE POSITED IN ASSESSEES BANK ACCOUNT. 13. REGARDING THIS ISSUE ALSO, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THIS ISSUE IS COVERED VIDE ABOVE SAI D ORDER DATED 03/06/2011 AND THE RELEVANT FINDINGS HAVE BEEN GIVE N IN PARA 5.1 & 5.2. THE SUBMISSIONS OF THE LEARNED D.R. WERE THE SAME A S WERE FOR THE GROUNDS NO. I & II. 14. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE P ARTIES, IT IS NOTICED THAT AN IDENTICAL ISSUE HAVING SIMILAR FACTS HAS AL SO BEEN DECIDED IN FAVOUR OF THE ASSESSEE VIDE ABOVE SAID ORDER DATED 03/06/2011 AND THE RELEVANT FINDINGS IS GIVEN IN PARA 5.2 WHICH READ A S UNDER:- 5..2 WE HAVE HEARD BOTH THE PARTIES. THE LD. CIT(A ) HAS DELETED THE ADDITION AFTER FOLLOWING THE DECISION OF THE TRIBUN AL IN THE CASE OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2006-07.A SUM OF R S. 6,86,900/- HAS BEEN DEPOSITED IN ASSESSEES BANK ACCOUNT ON ACCOUN T OF DECREED DISPUTED COMPENSATION. IT IS A CASE OF THE ASSESSEE THAT IT HAS NOT ACQUIRED ABSOLUTE RIGHT ON SUCH INTEREST BECAUSE TH E DECREED AMOUNT OF FDR WAS IN DISPUTE. CONSIDERING THIS FACTUAL POS ITION IN THE CASE OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2005-06 AND 20 06-07, THE LD. CIT(A) DELETED THE ADDITION IN RESPECT OF INTEREST ACCRUED ON FDR IN THE NAME OF THE ASSESSEE FOLLOWING THE ORDER OF THE TRI BUNAL FOR EARLIER YEARS IN THE CASE OF THE ASSESSEE. WE HOLD THAT THE LD. CIT(A) WAS 7 JUSTIFIED IN DELETING THE ADDITION OF RS. 6,86,900/ - ON THE BASIS OF THE ORDER OF THE TRIBUNAL FOR EARLIER YEAR. 15. SO BY RESPECTFULLY FOLLOWING THE EARLIER ORDER OF ITAT JAIPUR BENCH B' JAIPUR IN ASSESSEES OWN CASE FOR THE A.Y. 2007 -08, WE DO NOT SEE ANY MERIT IN THIS GROUND OF THE DEPARTMENTAL APPEAL. 16. THE NEXT ISSUE VIDE GROUND NO. IV RELATES TO PR IVILEGE FEE OF RS. 13 CRORES PAID TO THE EXCISE COMMISSIONER WHICH WAS CO NSIDERED BY THE ASSESSING OFFICER AS CAPITAL IN NATURE 17. AS REGARDS TO THIS ISSUE ALSO, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT A SIMILAR ISSUE WAS INVOLVED IN THE EARLIER YEAR AND HAD BEEN DECIDED IN FAVOUR OF THE ASSESSEE VIDE PARA 6. 2 OF THE ORDER DATED 03/06/2011. THE SAID CONTENTION OF THE LEARNED COU NSEL FOR THE ASSESSEE WAS NOT REBUTTED BY THE LEARNED D.R. 18. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE P ARTIES, IT IS NOTICED THAT THE FACTS FOR THE YEAR UNDER CONSIDERATION WER E SIMILAR TO THE FACTS INVOLVED IN THE PRECEDING ASSESSMENT YEAR 2007-08, WHEREIN THE ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE VIDE PARA 8 6.2 OF THE ORDER DATED 03/06/2011 IN I.T.A.NO. 1342 /JP/2010. THE RELEVANT FINDINGS ARE GIVEN IN PARA 6.2 WHICH READ AS UNDER:- 6.2 WE HAVE HEARD BOTH THE PARTIES. THE LD. CIT(A) HAS DELETED THE ADDITION AFTER FOLLOWING THE ORDER OF THE TRIBUNAL IN THE CASE OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2006-07. SINCE THE ISSUE HAS BEEN DECIDED BY THE TRIBUNAL IN THE CASE OF THE ASSESSEE FOR EARLIER ASSESSMENT YEAR, WE THEREFORE, FEEL THAT THE LD. CI T(A) WAS JUSTIFIED IN DELETING THE ADDITION. HOWEVER, FOR READY REFERENCE , IT WILL BE USEFUL TO REPRODUCE FOLLOWING PARA FROM THE ORDER OF THE TRIB UNAL DATED 20 TH AUG. 2010. 30. THE FEE WAS PAID FOR GRANTING RIGHT TO MANUFA CTURE AND VEND THE LIQUOR WHICH IS EXCLUSIVELY DOMAIN OF THE STATE. DE TERMINATION OF PRIVILEGE FEE AT ANY REASONABLE AMOUNT WAS WITHIN T HE JURISDICTION OF STATE AUTHORITIES I.E. EXCISE DEPARTMENT AND LEVY O F SUCH FEE CANNOT BE TERMED AS APPLICATION OF INCOME OR DIVIDEND. THIS I S PURELY A BUSINESS EXPENDITURE AND HAS TO BE ALLOWED IN VIEW OF PROVIS IONS OF SECTION 37(1) OF THE ACT. THE AO HAS MADE AN OBJECTION THAT PRIVILEGE FEE WAS NOT PAID AGAINST ANY AGREEMENT ENTERED BETWEEN ASSE SSEE COMPANY AND THE GOVERNMENT OF RAJASTHAN. IT IS NOT NECESSAR Y THAT ANY FEE IS TO BE PAID UNDER ANY MOU. THE ASSESSEE COMPANY IN WHIC H THE MAIN STAKE HOLDERS ARE GOVERNMENT OF RAJASTHAN, WAS ALLO WED TO MANUFACTURE AND VEND LIQUOR AFTER FIXING THE PRIVIL EGE FEE WHICH WAS AGREED BY THE ASSESSEE AND WAS PAID ACCORDINGLY. FI RSTLY, IT WAS LEVIED ON AN EXCESS AMOUNT, THEREAFTER ON REPRESENTATION O F ASSESSEE COMPANY IT WAS REDUCED TO RS. 12.50 CRORES AND THE SAME WAS PAID BY THE ASSESSEE TO START ITS BUSINESS ACTIVITY. IT IS FURTHER SEEN THAT THE PRIVILEGE FEE WAS COMPULSORY TO START THE BUSINESS ACTIVITY. IN OUR CONSIDERED VIEW, THE LEVY OF PRIVILEGE FEE IS LIKE LICENCE FEE TO START THE BUSINESS, OTHERWISE THE ASSESSEE COULD NOT HAVE STA RTED THE MANUFACTURING AND VEND THE LIQUOR. THE ASSESSEE HA S EARNED A HUGE PROFIT EVEN AFTER PAYING THIS PRIVILEGE FEE AS THE RETURN FILED BY THE ASSESSEE WAS OF RS. 4.98 CRORES OR SO. 31. THE DEPARTMENT HAS RAISED AN OBJECTION THAT THE EXCISE COMMISSIONER IS ALSO THE DIRECTOR OF THE ASSESSEE C OMPANY, THEREFORE, 9 THIS IS A WELL PLANNED ACTIVITY AND HAS TO BE TREAT ED AS APPLICATION OF MONEY. IN OUR CONSIDERED VIEW, THIS OBJECTION OF TH E DEPARTMENT IS ALSO NOT TENABLE FOR THE SIMPLE REASON THAT ANY AUTHORIT Y UNDER ANY ACT CAN BE DEPUTED A DIRECTOR OR IN ANY OTHER CAPACITY BY T HE GOVERNMENT TO LOOK AFTER THE BUSINESS ACTIVITY. THE FEE IS NOT LE VIED BY THE EXCISE COMMISSIONER BUT IS LEVIED ON BEHALF OF THE EXCISE DEPARTMENT. EXCISE DEPARTMENT IS NOT A SHAREHOLDER IN THE ASSESSEE COM PANY AS THE SHAREHOLDER IS THE RAJASTHAN GOVERNMENT. THEREFORE, THIS OBJECTION OF THE DEPARTMENT IS ALSO DOES NOT HOLD GOOD. 31.1 THE LD. D/R HAS ALSO STATED THAT FEE PAID BY A SSESSEE IS IN CONTRAVENTION OF SECTION 29 OF EXCISE ACT. THE FEE PAID BY ASSESSEE WHETHER IN CONTRAVENTION OF PROVISIONS OF EXCISE AC T OR NOT IS NOT THE ISSUE HERE. THE ISSUE HERE IS WHETHER THE FEE PAID IS FOR THE PURPOSE OF BUSINESS OR NOT. IF IT IS IN CONTRAVENTION OF PROVI SIONS OF EXCISE ACT, THE EXCISE AUTHORITY WILL TAKE APPROPRIATE ACTION, BUT IF THE SAME IS PAID FOR BUSINESS PURPOSES, THEN THE PAYMENT CANNOT BE HELD AS INGENUINE OR HELD AS NOT ALLOWABLE IN VIEW OF PROVISIONS OF SECT ION 37(1) OF THE ACT. IT IS FURTHER SEEN THAT EVEN THERE IS NO CONTRAVENTION IN PAYING THE PRIVILEGE FEE AS THE FEE IS PAID UNDER SECTION 24 O F THE EXCISE ACT AND THE PROVISIONS OF SECTION 28, 29 ARENOT APPLICABLE AS THEY ARE ON SEPARATE ASPECT. 32. WE HAVE GONE THROUGH THE OTHER CASE LAWS, RELIE D UPON BY LD. A/R AND FOUND THAT THEY ALSO SUPPORT THE CASE OF THE AS SESSEE. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, WE HOLD THAT PRI VILEGE FEE PAID BY ASSESSEE IS ALLOWABLE AS BUSINESS EXPENDITURE. ACCO RDINGLY WE DIRECT THE AO TO ALLOW THE DEDUCTION TO THE ASSESSEE. 19. THE LAST ISSUE VIDE GROUND NO.V RELATES TO THE DELETION OF ADDITION OF DEPOSITING THE ESI CONTRIBUTION BEYOND THE PRESCRIB ED TIME. 20. THE FACTS RELATING TO THIS ISSUE IN BRIEF ARE T HAT THE ASSESSING OFFICER MADE AN ADDITION OF RS. 11,907/- ON ACCOUNT OF EMPL OYEES CONTRIBUTION TO ESI DEPOSITED LATE FOR THE MONTH OF JUNE, 2007. 10 21. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTE R TO THE LD. CIT(A) AND SUBMITTED THAT THE AMOUNT IN QUESTION WAS DEPOS ITED ON 27/07/2007 EVEN BEFORE END OF THE ACCOUNTING YEAR ONLY WITH DE LAY OF 06 DAYS. THEREFORE, THE DEPOSIT WAS ADMISSIBLE IN VIEW OF TH E AMENDMENT IN THE PROVISIONS OF THE ACT, EVEN IF THE PAYMENT WAS MADE BEFORE THE DUE DATE OF FILING OF THE RETURN. 22. THE LEARNED CIT(A), AFTER CONSIDERING THE SUBMI SSIONS OF THE ASSESSEE, OBSERVED THAT NO DISALLOWANCE OF EMPLOYEE S CONTRIBUTION TOWARDS ESI/PF COULD BE MADE UNDER SECTION 43B OF T HE ACT IF THE PAYMENTS WERE MADE BEFORE DUE DATE OF FILING OF RET URN. REFERENCE WAS MADE TO THE JUDGMENT OF HON'BLE DELI HIGH COURT IN THE CASE OF CIT VS. AIMIL LTD. (321 ITR 508). LEARNED CIT(A) FURTHER OBSERVED THAT THE ASSESSEE CAN GET THE BENEFIT OF DEDUCTION OF THE PA YMENTS IF THE ACTUAL PAYMENT IS MADE BEFORE THE RETURN IS FILED. RELIAN CE WAS PLACED ON THE FOLLOWING CASE LAWS:- 1. CIT VS. P.M. ELECTRONICS (313 ITR 161) (DELHI HI GH COURT). 2. CIT VS. ANZ INFORMATION TECHNOLOGY PVT. LTD. (31 8 ITR 123) (KARNATAKA HIGH COURT) NOW THE DEPARTMENT IS IN APPEAL. 11 23. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RE CORD. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE ASSESSEE MADE PAYMENTS OF THE ESI CONTRIBUTION MUCH BEFORE FILING OF THE RETURN. THE REFORE, THE ADDITION WAS RIGHTLY DELETED BY THE LD. CIT(A) BY KEEPING IN VIEW THE RATIO LAID DOWN IN VARIOUS JUDICIAL PRONOUNCEMENTS MENTIONED I N THE IMPUGNED ORDER. WE THEREFORE, DO NOT SEE MERIT IN THIS GROU ND OF THE DEPARTMENTAL APPEAL ALSO. 24. IN THE RESULT, APPEAL OF THE DEPARTMENT IS DISM ISSED. (ORDER PRONOUNCED IN THE COURT ON 26 TH FEBRUARY, 2014). SD/- SD/- (HARI OM MARATHA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 26 TH FEBRUARY, 2014. VR/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD.CIT 4. THE CIT(A) 5. THE D.R ASSISTANT REGISTRAR, ITAT, JAIPUR.