The ACIT, Circle-3, Surat V. M/s. Ess Ess Engineering, Surat

ITA 2161/AHD/2009

• Counselvise Citation: 216120514 RSA 2009
• Duration Of Justice: 2 year(s) 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-08-2011
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 11-08-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 09-07-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Gift; Corroborative evidences; Accommodation entries; Commercial expediency
• Section: 43B; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C BEFORE SHRI MUKUL SHRAWAT, JUDICIAL MEMBER AN D SHRI A.N. PAHUJA, ACCOUNTANT MEMBER SL. NO(S) . ITA NO(S) ASSESSMENT YEAR(S) APPEAL(S) BY : APPELLANT VS. RESPONDENT APPELLANT (S) RESPONDENT(S) 1. 3736/AHD/2008 2005-06 M/S.ESS ESS ENGINEERING 90, SEEMANAGAR SOCIETY-II PALANPUR PATIA RANDER ROAD, SURAT PAN : AADFE 6746 Q ASSISTANT.CIT CIRCLE-3, AAYAKAR BHAVAN ,MAJURA GATE, SURAT 2. 3659/AHD/2008 2005-06 REVENUE ASSESSEE 3. 2147/AHD/2009 2006-07 ASSESSEE REVENUE 4. 2161/AHD/2009 2006-07 REVENUE ASSESSEE ASSESSEE BY: SHRI RASESH SHAH,AR REVENUE BY: SHRI G.S. SOURYAVANSHI, DR. DATE OF HEARING : 11/08/2011 DATE OF PRONOUNCEMENT : 26/08/2011 O R D E R A.N.PAHUJA: THESE CROSS-APPEALS AGAINST TWO SEPARATE ORDERS DATED 29/08/2008 FOR THE AY 2005-06 & DATED 30/03/2009 F OR THE AY 2006-07 OF THE LD. CIT(APPEALS)-II, SURAT ,RAISE THE FOLLOWING GROUNDS:- ITA NO.3736/AHD/2008[ASSESSEE]- A.Y. 2005-06 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LA W ON THE SUBJECT, THE LEARNED CIT(APPEALS) HAS ERRED IN CONFIRMIN G THE ACTION OF THE ASSESSING OFFICER IN MAKING DISALLOWANCE OF RS.3,33,953/ - FOR ALLEGED PAYMENT MADE TO THE FOLLOWING PARTIES : SR.NO. NAME OF THE PARTY AMOUNT 1. YASH TRAVELS 1,49,526 2. V.R.PATEL 49,050 3. R.N.PATEL 45,028 - 2 ITA NOS. 3659 - 3736/AHD/2008 & 2147 -2161/AHD./2009 4. A.N.PATEL 46,575 5. J.N.PATEL 43,774 TOTAL 3,33,953 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED (APPEALS) HAS ERRED IN PARTLY CONFIR MING THE ACTION OF THE ASSESSING OFFICER IN MAKING ADDITION OF RS.4,19,225/- FOR ALLEGED PAYMENT MADE TO SHITAL PLUS TRAVELS / SHITAL TRAVELS. 3. IT IS, THEREFORE, PRAYED THAT ABOVE ADDITIONS/DISAL LOWANCES MADE BY ASSESSING OFFICER AND CONFIRMED BY CIT(APPEALS) MAY PLEASE BE DELETED. 4. APPELLANT CRAVES LEAVE TO ADD, ALTER OR DELETE ANY GROUND(S) EITHER BEFORE OR IN THE COURSE OF HEARING OF THE APPEAL. ITA NO.3659/AHD/2008[REVENUE]- A.Y. 2005-06 [1] ON THE FACT AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A)-I, SURAT HAS ERRED IN HOLDING THAT THE ASSESSEE H AD NOT CLAIMED PREPAID INSURANCE AMOUNT IN SUBSEQUENT YEAR OF ASSESSMENT I GNORING THE NORMS OF ACCOUNTING THAT THE ASSESSEE HAD FOLLOWED TH E METHOD OF ACCOUNTING UNDER MERCANTILE SYSTEM AND THEREBY THE ASSESSEE IS ELIGIBLE FOR DEDUCTION IN RESPECT OF PAYMENT OF INSURANC E CLAIM PAID FOR ACCOUNTING YEAR UNDER CONSIDERATION ONLY. [2] ON THE FACT AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A)-I, SURAT HAS ERRED IN DELETING THE ADDITION M ADE BY THE A.O. OF RS.1,83,145/- ON ACCOUNT OF PREPAID INSURANCE CLAIMED I N RESPECT OF SUBSEQUENT YEAR OF ASSESSMENT. [3] ON THE FACT AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A)-I, SURAT HAS ERRED IN HOLDING THAT THE ASSESSEE HAD PAID THE ENTIRE P.F. AMOUNT IN THE ACCOUNTING YEAR ITSELF, IGNOR ING THE PROVISIONS OF SEC. 2(24) OF THE I.T. ACT WHICH PROVIDES ANY SUM RECEI VED BY THE ASSESSEE FROM HIS EMPLOYEE AS CONTRIBUTION OF ANY PROVIDENT F UND WHEREAS SUB-CLAUSE (VA) OF CLAUSE (1) OF SEC. 36 OF THE I.T . ACT PROVIDES ALLOWABILITY OF DEDUCTION WITH RESPECT OF EMPLOYE ES CONTRIBUTION ONLY IF SUCH SUM HAS BEEN CREDITED BY THE ASSESSE E OF RESPECTIVE ACCOUNT ON OR BEFORE THE DUE DATE PROVIDED UND ER SUCH ACT. [4] ON THE FACT AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A)-I, SURAT HAS ERRED IN DELETING THE DISALLOWANCE MADE BY THE A.O. OF RS.1,38,760/- ON ACCOUNT OF LATE DEPOSIT OF P. F. CONTRIBUTION OF ITS EMPLOYEES IN THEIR P.F. ACCOUNT UNDER THE PROVIDENT FUND ACT. - 3 ITA NOS. 3659 - 3736/AHD/2008 & 2147 -2161/AHD./2009 [5] ON THE FACT AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A)-I, SURAT HAS ERRED IN DELETING THE ADDITION M ADE BY THE A.O. OF RS.3,34,519/- IGNORING THE FACTS THE ASSESSEE HAS FAILED T O FURNISH EVIDENCE IN RESPECT OF SERVICE TAX PAYMENT OF RS.19.86 LACS AN D FAILED TO RECONCILE THE DIFFERENCE OF RS.3,34,519/- BEFORE THE A.O. DURING THE COURSE OF ASSESSMENT PROCEEDINGS. [6] ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, TH E LEARNED CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER ON THIS ISSUE. [7]IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE C IT(A) BE SET ASIDE AND THAT THE ORDER OF THE ASSESSING OFFICER BE RESTORED. ITA NO.2147/AHD/2009[ASSESSEE]- A.Y. 2006-07 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LA W ON THE SUBJECT, THE LEARNED CIT(APPEALS) HAS ERRED IN CONFIRMIN G THE ACTION OF THE ASSESSING OFFICER IN MAKING DISALLOWANCE OF RS.27,49,01 5/- ON ACCOUNT OF TRANSPORTATION EXPENSES. 2. IT IS THEREFORE PRAYED THAT ABOVE DISALLOWANCE MA DE BY ASSESSING OFFICER AND CONFIRMED BY LEARNED CIT(APPEALS) MAY PLEA SE BE DELETED. 3. APPELLANT CRAVES LEAVE TO ADD, ALTER OR DELETE ANY GRO UND(S) EITHER BEFORE OR IN THE COURSE OF HEARING OF THE APPEAL. ITA NO.2161/AHD/2009[REVENUE]- A.Y. 2006-07 (1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A)-I, SURAT HAS ERRED IN DELETING THE AD DITION MADE ON ACCOUNT OF UNDISCLOSED CONTRACT RECEIPTS OF RS.40,08,699/-. (2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A)-I, SURAT HAS ERRED IN DELETING THE AD DITION MADE ON ACCOUNT OF DISALLOWANCE OF DIWALI EXPENSES OF RS.88,476 /-. (3) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A)-I, SURAT HAS ERRED IN DELETING THE AD DITION MADE ON ACCOUNT OF DISALLOWANCE MADE OUT OF SALARY AND BONUS EXP ENSES OF RS.5,34,563/-. (4) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, T HE LEARNED CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. - 4 ITA NOS. 3659 - 3736/AHD/2008 & 2147 -2161/AHD./2009 (5) IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE CI T(A) BE SET ASIDE AND THAT THE ORDER OF THE ASSESSING OFFICER BE RESTORED. 2. ADVERTING TO GROUND NOS.1& 2 IN THE APPEAL OF THE ASSESSEE FOR A.Y. 2005-06 AND GROUND NO.1 IN THEIR APPEAL FOR THE AY 2006-07, FACTS, IN BRIEF, AS PER RELEVANT ORDERS FOR THE AY 2005-06 ARE THAT RET URN DECLARING INCOME OF RS.19,88,347/- FILED ON 31/10/2005 BY THE ASSESSEE, EN GAGED IN THE BUSINESS OF SUPPLY OF TECHNICAL AND NON-TECHNICAL MANPOWER ON CONTRACT BASIS, AFTER BEING PROCESSED U/S 143(1) OF THE INCOME-TAX ACT,1961 (HEREINAFTER REFERRED TO THE ACT) WAS SELECTED FOR SCRU TINY WITH THE SERVICE OF A NOTICE U/S 143(2) OF THE ACT ON 21/10/2006. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER[AO IN SHORT] N OTICED THAT THE ASSESSEE CLAIMED TRANSPORTATION EXPENSES OF RS.13,62,970/- AND THE FOLLOWING AMOUNTS WERE PAID TO THE PARTIES RESIDING IN THE SAME PREMISES IN WHICH ASSESSEE-FIRM WAS LOCATED:- SR. NO. NAME OF THE PARTY ADDRESS AMOUNT (RS.) 1. YASH TRAVELS 21,SATYAM ROW HOUSE, PALANPUR JAKATNAKA 1,49,526 2. V.R. PATEL -DO- 1,49,050 3. R.N. PATEL -DO- 45,028 4. A.N. PATEL -DO- 46,575 5. J.N. PATEL -DO- 43,774 TOTAL 3,33,953 2.1. SINCE BILLS/VOUCHERS SUBMITTED BY THE ASSESSEE WERE FO UND TO HAVE BEEN ISSUED FROM THE SAME LETTER-PAD AND ADDRESS I.E 21, SATYAM ROW HOUSE ,PALANPUR JAKATNAKA,PAL ROAD,SURAT WHILE ON ENQUIRY, IT WAS FOUND THAT NONE OF THE AFORESAID PARTIES RESIDED AT THE ABOVESAID ADDRE SS, THE AO SHOW- CAUSED THE ASSESSEE AS TO WHY THE AFORESAID PAYMENTS BE NOT DISALLOWED. BESIDES, PAYMENT OF RS.4,19,225/- WAS MADE TO SHITAL TR AVELS. SINCE SHITAL PLUS TRAVELS & SHITAL TRAVELS DID NOT HAVE ANY HEAVY VE HICLES, THE AO ISSUED A SHOW-CAUSE NOTICE TO THE ASSESSEE, PROPOSING TO DISALLOW T HE SAID AMOUNT. - 5 ITA NOS. 3659 - 3736/AHD/2008 & 2147 -2161/AHD./2009 IN RESPONSE, THE ASSESSEE SUBMITTED THAT THE PAYMENTS WE RE MADE BY A/C.PAYEE CHEQUES AND TAX WAS ALSO DEDUCTED AT SOURCE FROM THE PAYMENTS MADE TO THE AFORESAID PARTIES. A CERTIFICATE-CUM-CONFIR MATION FROM SHRI VAISHALI R. PATEL WAS ALSO SUBMITTED IN THE LETTER-PAD OF YASH TRAVELS. THE ASSESSEE FURTHER SUBMITTED THAT PROPRIETOR OF SHITAL T RAVELS MR. YUSUFBHAI HUSAINBHAI VOHRA AND HIS ADDRESS WAS AS PER BILL AND CO NTRACT. HOWEVER, THE AO DID NOT ACCEPT THE SUBMISSIONS OF THE ASSESSEE ON THE GROUND THAT THE ASSESSEE FAILED TO FURNISH NAME AND POSTAL ADDRESSES OF THE AFORESAID PERSONS AND THE BILLS / VOUCHERS WERE ISSUED FROM THE SAM E LETTER-PAD WITH A SMALL CHANGES IN THE FORMAT WHILE THE ASSESSEE DID NOT P RODUCE ANY OF THE PARTY DESPITE REPEATED OPPORTUNITIES. TO A FURTHER Q UERY BY THE AO ON 29/10/2007, THE ASSESSEE DID NOT FURNISH ANY REPLY. ACCORDINGLY, THE AO DISALLOWED THE AMOUNT OF RS.3,33,953/- AND RS.4,19,225 /-. 2.2 LIKEWISE, THE AO DISALLOWED AN AMOUNT OF RS.27, 49,015/- IN THE ASSESSMENT YEAR 2006-07 SINCE THE M/S SHEETAL TRAVELS(RS.6,9 7,850),SMT. VAISHALI R PATEL(RS.9,25,030) AND SHREE GANESH TRAVELS( RS.12,28,363) WERE NOT AVAILABLE AT THE ADDRESSES FURNISHED BY THE ASSESSEE NO R THE ASSESSEE PRODUCED THESE PARTIES DESPITE REPEATED REQUESTS. 3. ON APPEAL, THE LD. CIT(APPEALS) UPHELD THE ADD ITION IN THE AY 2005-06 IN THE FOLLOWING TERMS :- 22. I HAVE CAREFULLY CONSIDERED BOTH THE POSITIONS. THE ASSESSEE IS ENGAGED IN THE SUPPLY OF MANPOWER, BOTH TECHNICAL AND NON-TECHNICAL TO VARIOUS COMPANIES AT THEIR SITES. USUALLY, SUCH LARGE CO MPANIES PROVIDE TRANSPORTATION THEMSELVES, JUST AS THEY PROVIDE FOOD TO WORKERS/EMPLOYEES OF THE ASSESSEE, EVEN THOUGH HE IS ONLY A CONTRACTOR SUPPLYING MANPOWER. IN SUCH A SCENARIO, THE CLAI M OF TRANSPORTATION EXPENDITURE TO THE EXTENT OF RS.13,62,97 0 BECOMES QUESTIONABLE. ON THE OTHER HAND, THE AO GATHERED SO ME VITAL INFORMATION AND EVIDENCES WHICH SHOWED THAT THE EXPENSES CLA IMED WERE NOT GENUINE. THUS, FIVE DIFFERENT PARTIES ISSUED B ILLS OF DIFFERENT AMOUNTS FROM 21, SATYAM ROW HOUSE PALANPUR, JAKATNAKA. ALL THE BILLS WERE ISSUED ON THE SAME LETTER PAD. INQUIRIES COND UCTED BY THE INSPECTOR SHOWED THAT THESE FIVE PARTIES DID NOT EXIST AT THE GIVEN - 6 ITA NOS. 3659 - 3736/AHD/2008 & 2147 -2161/AHD./2009 ADDRESS. SIMILARLY, M/S.SHEETAL TRAVELS, TO WHOM PAYMENT S TOTALLING RS.4,19,225 WAS MADE, DID NOT HAVE ANY HEAVY VEHICLE, WHICH MEANT THAT THEY COULD NOT BE OF ANY USE TO THE ASSESSEE. IN R ESPONSE TO THE SHOW-CAUSE NOTICE, THE ASSESSEE SIMPLY SIDE-TRACKED THE AO'S QUE RY REGARDING M/S.SHEETAL TRAVELS NOT OWNING ANY HEAVY VEHICLE . 22.1. TRUE THE ASSESSEE HAD FURNISHED THE RELEVANT BILL S/VOUCHERS AND ALSO PROVIDED EVIDENCES OF PAYMENTS WHICH SIMPLY INDICATE D THAT THE TRANSACTIONS PERTAINING TO TRANSPORTATION WERE CARE FULLY STRUCTURED TO GIVE IT A LOOK OF GENUINENESS. THE ONLY CONCLUSION TH AT CAN BE DRAWN FROM SUCH FACTS IS THAT THE PERSON WHO HAD RAISED T HE BILL HAD MERELY PROVIDED ACCOMMODATION ENTRIES, WHICH DID NOT BE COME SACROSANCT AND GENUINE SIMPLY BECAUSE PAYMENTS WERE SHOWN TO HAVE BEEN MADE BY ACCOUNT PAYEE CHEQUES, THERE BEING MA NY WAYS OF GETTING BACK SUCH MONEY ALLEGEDLY PAID BY MEANS OF CHEQU ES. 22.2 WHAT IS IMPORTANT IS THE TOTALITY OF THE FACTS AN D CIRCUMSTANCES OF THE CASE. FIRSTLY, THE NATURE OF THE ASSESSEES BUSINESS DID NOT REQUIRE SUCH HEAVY EXPENDITURE TO BE INCURRED ON TRANSPO RTATION. SECONDLY, A GROUP OF ENTITIES TO WHOM PAYMENTS TOTALLIN G RS.3,33,953 HAD BEEN MADE, APPEARED TO BE ALL BOGUS ENTITIES, AND WERE MERELY FRONTING FOR THE SAME PERSON, WHO WAS ISSUING BILLS IN DIFFERENT NAMES FROM THE SAME LETTER-PAD AND FROM THE SAME ADDRESS. AN OTHER PARTY TO WHOM PAYMENTS TOTALLING RS.4,19,225 HAD BEEN MADE, SIMP LY DID NOT HAVE THE TYPE OF VEHICLE THAT THE ASSESSEE WOULD REQUIRE FOR THE PURPOSE OF ITS BUSINESS. IN SUCH A SCENARIO, EVEN THOUGH PR OPER ENTRIES MAY HAVE BEEN MADE IN THE BOOKS OF ACCOUNT AND IN THE BANK BOOKS, THE SAID EXPENSES APPEAR TO BE COMPLETELY BOGUS, BEIN G INCURRED AGAINST MERE ACCOMMODATION ENTRIES. THE ADDITI ONS OF THE SUMS OF RS.3,33,953 AND OF RS.4,19,225 ARE THEREFORE, CO NFIRMED. 3.1. FOLLOWING HIS OWN ORDER FOR THE A.Y. 2005-06, THE LD. CIT(APPEALS) UPHELD THE DISALLOWANCE IN THE A.Y. 2006-07 ALSO, HO LDING AS UNDER: 14. I HAVE CAREFULLY CONSIDERED BOTH THE POSITIONS. THE ASSESSEE IS ENGAGED IN THE SUPPLY OF MANPOWER, BOTH TECHNICAL AND NON-TECHNICAL, TO VARIOUS CONCERNS AT THEIR SITES. USUALLY, SUCH LARGE CONCE RNS PROVIDE TRANSPORTATION THEMSELVES, JUST AS THEY PROVIDE FOOD TO THE WORKERS/EMPLOYEES OF THE ASSESSEE, EVEN THOUGH THE ASSESSEE IS ONLY A CONTRACTOR SUPPLYING MANPOWER. IN SUCH A SCENARI O, THE CLAIM OF TRANSPORTATION EXPENDITURE TO THE EXTENT OF RS.27,4 9,015 BECOMES QUESTIONABLE. ON THE OTHER HAND, THE AO GATHERED SO ME VITAL INFORMATION AND EVIDENCES WHICH SHOWED THAT THE EXPENSES CLA IMED WERE NOT GENUINE. INQUIRIES CONDUCTED BY THE INSPECTOR SHOWED THAT CLAIMED WERE NOT GENUINE. INQUIRIES CONDUCTED BY THE IN SPECTOR - 7 ITA NOS. 3659 - 3736/AHD/2008 & 2147 -2161/AHD./2009 SHOWED THAT THE PARTIES TO WHOM PAYMENTS HAD ALLEGEDLY B EEN MADE DID NOT EXIST AT THE GIVEN ADDRESSES. 14.1. TRUE, THE ASSESSEE HAD FURNISHED THE RELEVANT BILL S/VOUCHERS AND ALSO PROVIDED EVIDENCES OF PAYMENTS WHICH SIMPLY INDICATE D THAT THE TRANSACTIONS PERTAINING TO TRANSPORTATION WERE CARE FULLY STRUCTURED TO GIVE IT A LOOK OF GENUINENESS. THE ONLY CONCLUSION TH AT CAN BE DRAWN FROM SUCH FACTS IS THAT THE PERSON WHO HAD RAISED T HE BILL HAD MERELY PROVIDED ACCOMMODATION ENTRIES, WHICH DID NOT BE COME SACROSANCT AND GENUINE SIMPLY BECAUSE PAYMENTS WERE SHOWN TO HAVE BEEN MADE BY ACCOUNT PAYEE CHEQUES, THERE BEING MA NY WAYS OF GETTING BACK SUCH MONEY ALLEGEDLY PAID BY MEANS OF CHEQU ES. 14.2. WHAT IS IMPORTANT IS THE TOTALITY OF THE FACTS AN D CIRCUMSTANCES OF THE CASE, WHICH ARE ALMOST IDENTICAL TO THE FACTS OF THE IMMEDIATELY PRECEDING YEAR. FIRSTLY, THE NATURE OF THE ASSESSEES BUSIN ESS DID NOT REQUIRE SUCH HEAVY EXPENDITURE TO BE INCURRED ON TRANSPO RTATION. SECONDLY, A GROUP OF ENTITIES TO WHOM PAYMENTS TOTALLING RS.27,49,015 HAD BEEN MADE, APPEARED TO BE ALL BOGUS ENTITIES, AND WERE MERELY FRONTING FORT HE SAME PERSON, WHO WAS ISSUING BILLS IN DIFFERENT NAMES FROM THE SAME LETTER-PAD AND FROM THE SAME ADDRESS. I N SUCH A SCENARIO, EVEN THOUGH PROPER ENTRIES MAY HAVE BEEN MADE IN THE BOOKS OF ACCOUNT AND IN THE BANK BOOKS, THE SAID EXPENSES APP EAR TO BE COMPLETELY BOGUS, BEING INCURRED AGAINST MERE ACCOMMODA TION ENTRIES. THE ADDITION OF THE SUM OF RS.27,49,015 IS T HEREFORE, CONFIRMED. 4. THE ASSESSEE IS NOW IN APPEAL BEFORE US AGAINST THE AF ORESAID FINDINGS OF THE LD.CIT(APPEALS) IN THE TWO ASSESSMENT YEARS. THE LD. AR ON BEHALF OF THE ASSESSEE CONTENDED THAT PAYMENTS WERE MADE TO THE AFORESAID PARTIES THROUGH ACCOUNT PAYEE CHEQUES AND ALL THESE PERSONS WERE ASSESSED TO TAX. IT WAS POINTED OUT THAT COPIES OF THEIR ACKNOWLEDGEMENT OF FILING THE RETURNS AND CONFIRMATIONS WERE ALSO SUBMITTED. MOREOVER, THE REPORT ON ENQUIRIES CONDUCTED BY THE AO THROUGH THE INSPECTOR WAS NEVER CONF RONTED TO THEM. SINCE TDS WAS ALSO DEDUCTED FROM THE AFORESAID PAYMENTS, THE A.R. ADDED THAT THE DISALLOWANCE WAS NOT JUSTIFIED. ON THE OTHER HAND, D.R. SUPPORTED THE FINDINGS OF THE LD.CIT(APPEALS). 5. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUG H THE FACTS OF THE CASE. AS IS APPARENT FROM THE AFORESAID FACTS, DESPITE REQUEST B Y THE AO, - 8 ITA NOS. 3659 - 3736/AHD/2008 & 2147 -2161/AHD./2009 NEITHER THE ASSESSEE PRODUCED THE AFORESAID PARTIES NOR E STABLISHED THE GENUINENESS OF EXPENDITURE ON ACCOUNT OF TRANSPORTATION EXPENSES. IT IS WELL SETTLED THAT THE ONUS IS ON THE ASSESSEE TO ESTABLI SH THAT THE EXPENDITURE HAD BEEN INCURRED WHOLLY AND EXCLUSIVELY FO R THE PURPOSE OF BUSINESS. THE HONBLE SUPREME COURT IN CHANDULAL KESHA VLAL AND CO.'S CASE [1960] 38 ITR 601, HELD THAT 'IN EVERY CASE IT IS A QUESTION OF FACT WHETHER THE EXPENDITURE WAS EXPENDED WHOLLY AN D EXCLUSIVELY FOR THE PURPOSE OF TRADE OR BUSINESS OF THE ASSESSEE.' IN ORDER THAT AN EXPENDITURE SHOULD QUALIFY FOR DEDUCTION UNDER THE REL EVANT PROVISIONS OF THE ACT -ONE OF THE REQUIREMENTS IS THAT THE EXPEND ITURE MUST HAVE BEEN LAID OUT WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS. HENCE, IT IS FOR THE ASSESSEE WHO CLAIMS DEDUCTION OF THE EXPENDITURE TO SATISFY THE DEPARTMENT OF THE PURPOSE FOR WHICH THE AM OUNT IS SPENT. THE AO IS ALSO ENTITLED TO BE SATISFIED AS TO THE COMMERC IAL NECESSITY OF SPENDING THAT AMOUNT. IN THE INSTANT CASE, THE AO ASKE D THE ASSESSEE TO PRODUCE THE PARTIES TO WHOM PAYMENTS TOWARDS TRANSP ORTATION EXPENSES WERE MADE. ON ENQUIRIES BY THE AO, NONE OF THE PARTIES WERE FOUND AVAILABLE AT THE ADDRESS GIVEN BY THE ASSESS EE .EVEN BEFORE US, THE LD. AR DID NOT ADDUCE ANY REASONS AS TO WHY THESE PERSONS COULD NOT BE PRODUCED BEFORE THE AO, ESPECIALLY WHEN THEY ARE STATED TO HAVE FILED THE RETURNS . MERE REFLECTING TH E AMOUNT IN THE RETURNS OF AFORESAID PARTIES, WOULD NOT ESTABLISH THE GENUINENESS OF THE CLAIM OR THAT SERVICES WERE ACTUALLY RENDERED BY THESE P ARTIES TO THE ASSESSEE . IT IS ALSO NOT KNOWN AS TO WHETHER OR NOT RETURN S OF THESE PARTIES WERE ACCEPTED IN A SUMMARY MANNER OR WERE FURTH ER SCRUTINISED. AS POINTED OUT BY THE LD. DR, DESPITE REPE ATED OPPORTUNITIES BY THE AO, THE ASSESSEE DID NOT PRODUCE ANY EVIDENCE OF G ENUINENESS OF THEIR CLAIM WHILE M/S SHEETAL TRAVELS DID NOT HAVE A NY HEAVY VEHICLE FOR TRANSPORTATION. AS ALREADY MENTIONED, IT IS TRITE THAT WHERE AN - 9 ITA NOS. 3659 - 3736/AHD/2008 & 2147 -2161/AHD./2009 ASSESSEE SEEKS TO DEDUCT FROM HIS BUSINESS PROFITS CERTAIN ITEM S OF EXPENDITURE, THE ONUS OF PROVING THAT SUCH DEDUCTIONS AR E PERMISSIBLE FALLS ON THE ASSESSEE. THIS IS ALL THE MORE SO WHEN THE CLA IMS ARE BASED ON FACTS WHICH ARE WITHIN THE EXCLUSIVE KNOWLEDGE OF THE ASSE SSEE. THUS, THE ASSESSEE HAS TO PLACE ALL THE FACTS AND CIRCUMSTANCES B EFORE THE REVENUE AUTHORITIES AND THE LATTER MUST EXAMINE T HESE AND MAKE UP ITS MIND AS TO WHETHER THE EXPENDITURE WAS JUSTIFIED BY COMMERCIAL EXPEDIENCY. IN THE INSTANT CASE, NEITHER THE ASSESSEE PROD UCED THE AFORESAID PARTIES FOR CROSS EXAMINATION BY THE AO NOR PLACED ANY EVIDENCE OF WORK ACTUALLY DONE BY THEM FOR THE ASSESSEE. THE ASSESSEE MERELY STATED THAT THE AMOUNT PAID BY THEM WAS REFLECT ED IN THE RETURNS OF THESE PARTIES AND HAD BEEN PAID BY ACCOUNT PAYEE CHE QUES AND TAX WAS DEDUCTED AT SOURCE FROM THESE PAYMENTS . THE LD. CIT(A),IN FACT, DID NOT RECORD HIS SPECIFIC FINDINGS OF THESE AVERMENTS MADE BY THE ASSESSEE 5.1 IN THE LIGHT OF AFORESAID DISCUSSION, CONSIDERIN G THE TOTALITY OF FACTS AND CIRCUMSTANCES IN THE INSTANT CASE, ESPECIALLY WHEN T HE LD. CIT(A) DID NOT RECORD HIS FINDINGS ON THE AVERMENTS MAD E BY THE ASSESSEE WHILE THE AFORESAID PARTIES WERE NOT FOUND AT TH E ADDRESS GIVEN BY THE ASSESSEE AND DESPITE REQUEST MADE BY THE AO, THESE PARTIES WERE NOT PRODUCED BEFORE THE AO AND THE RESU LTS OF ENQUIRIES CONDUCTED BY THE AO WERE ALSO NOT CONFRONTED TO THE ASSESSE E, WE CONSIDER IT FAIR AND APPROPRIATE TO SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE ISSUES RAISED IN GROUND NOS.1 & 2 IN THE APPEAL OF THE ASSESSEE FOR THE AY 2005-06 AND GROUND NO.1 IN THEIR APPEAL FOR THE AY 2006-07 TO HIS FILE FOR DECIDING THESE ISSUES AFRESH IN ACCORDANCE WITH LAW, IN THE LIGHT OF OUR AFORESAID OBSERVATIONS , AFT ER ALLOWING SUFFICIENT OPPORTUNITY TO BOTH THE PARTIES. NEEDLESS TO SAY THAT WHILE REDECIDING THE APPEAL, THE LEARNED CIT(A) SHALL PASS A SPEAKING O RDER, KEEPING IN - 10 ITA NOS. 3659 - 3736/AHD/2008 & 2147 -2161/AHD./2009 MIND, INTER ALIA, THE MANDATE OF PROVISIONS OF SEC. 2 50(6) OF THE ACT, BRINGING OUT CLEARLY THE EVIDENCE AND NATURE OF SERVIC ES RENDERED BY THE AFORESAID PARTIES TO THE ASSESSEE. WITH THESE OBSERVATIONS, GROUND NOS. 1 & 2 IN THE APPEAL OF THE ASSESSEE FOR THE AY 2005-06 AND GROUND NO.1 IN THEIR APPEAL FOR THE AY 2006-07 ARE DISPOSED OF. 6. APROPOS GROUND NOS.1 & 2 IN THE APPEAL OF THE R EVENUE FOR A.Y. 2005-06, THE AO NOTICED THAT AN AMOUNT OF RS.2,44,193 /- WAS CLAIMED TOWARDS INSURANCE PAYMENT FOR THE CALENDAR YEAR. SINCE THE SAID PAYMENT WAS MADE FOR ONLY THREE MONTHS FALLING IN THE FINANCI AL YEAR UNDER CONSIDERATION, THE AO DISALLOWED AN AMOUNT OF RS.1,83,1 45/- ON THE GROUND THAT THE SAID PAYMENT RELATED TO THE PERIOD RELEVA NT TO ASSESSMENT YEAR 2006-07. 7. ON APPEAL, THE LEARNED CIT(APPEALS) DELETED THE DISALLOWANCE IN THE FOLLOWING TERMS:- 6. I HAVE CAREFULLY CONSIDERED THE VIEW TAKEN BY THE AO, AND THE SUBMISSIONS OF THE AR. IT IS AN ACCEPTED FACT THAT INSURA NCE PREMIUM IS PAID FOR THE CALENDAR YEAR, WHICH WOULD MEAN THAT TH E PREMIUM PAID FOR THE MONTHS OF JANUARY, 2005 TO MARCH, 2005 WOULD AP PLY TO THE ENTIRE CALENDAR YEAR OF 2005. GIVEN THE PECULIAR STRUCT URE OF INSURANCE PREMIUM PAYMENTS AND GIVEN THE FACT THAT NO SU CH EXPENDITURE HAD BEEN CLAIMED IN THE NEXT FINANCIAL YEAR I.E. THE FY 2005-06, I AM OF THE VIEW THAT THE AO HAD ERRED IN MAKING A PROPORTIONATE DISALLOWANCE OUT OF THE TOTAL PREMIUM P AID, ON THE GROUND THAT IT PERTAINED TO THE NEXT FINANCIAL YEAR. THEREFORE, THE AO IS DIRECTED TO DELETE THE ADDITION OF RS.1,83,145, AND WHILE DOING SO, THE AO WILL TAKEN NOTE OF THE AR'S CLAIM THAT THE ACTU AL DISALLOWANCE SHOULD HAVE BEEN RS.1,60,645. 8. THE REVENUE IS NOW IN APPEAL BEFORE US AGAINST THE FINDINGS OF THE LD. CIT(APPEALS). THE LD. DR SUPPORTED THE FINDINGS OF T HE AO WHILE THE LD. AR ON BEHALF OF THE ASSESSEE RELIED UPON THE IMPUGNED ORD ER. - 11 ITA NOS. 3659 - 3736/AHD/2008 & 2147 -2161/AHD./2009 9. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH T HE FACTS OF THE CASE. THE ISSUE BEFORE US IS AS TO WHETHER THE DEDUCTION FOR P REMIUM PAID UNDER THE INSURANCE POLICY IS TO BE ALLOWED ON PRORA TA BASIS FOR THE PERIOD FALLING IN THE PREVIOUS YEAR RELEVANT TO THE ASSESSMEN T YEAR UNDER CONSIDERATION UNDER THE MERCANTILE METHOD OF ACCOUNTIN G FOLLOWED BY THE ASSESSEE. UNDER THE MERCANTILE SYSTEM OF ACCOUNTING, THE ASSESSE E IS ENTITLED TO CLAIM DEDUCTION ON THE BASIS OF INCURRING THE LIABILITY IRRESPECTIVE OF THE DATE OF PAYMENT. EVEN SUCH LIABILITY CAN BE CLAIMED ON THE BASIS OF PROVISION MADE WHERE SUCH LIABILITY IS NOT QUANTIFIED. ON THE OTHER HAND, UNDER THE CASH SYSTEM OF ACCOUNTING, THE ASSESSEE IS ENTITL ED TO CLAIM DEDUCTION ON THE BASIS OF PAYMENT IRRESPECTIVE OF THE D ATE OF INCURRING OF LIABILITY. IN THE PRESENT CASE, INDISPUTABLY, THE ASSESSE E WAS FOLLOWING THE MERCANTILE SYSTEM OF ACCOUNTING AND THEREFORE, DEDUCTION CAN BE CLAIMED ONLY IF IT IS ESTABLISHED THAT LIABILITY HAS BEEN INCURR ED IN THE YEAR UNDER CONSIDERATION. WE FIND THAT THE LD. CIT(A) ALLOWED THE CLAIM ON THE BASIS THAT PREMIUM WAS DUE AND PAID IN THE YEAR UNDER CONSID ERATION EVEN WHEN THE BENEFIT OF THE SAME WAS AVAILED FOR A LONGER PER IOD . INDISPUTABLY, IN THE YEAR UNDER CONSIDERATION THE PREMIUM WAS PAID TO KEEP THE INSURANCE POLICY IN FORCE. SINCE THE LIABILITY HAD ARISEN IN THE PREVI OUS YEAR AND AS CONTENDED BY THE LD. AR THE PAYMENT TOWARDS THE INSURANCE PREMIUM WAS THE FIXE D EXPENDITURE, THE CONCEPT OF BENEFIT OF EXPENDITURE B EYOND THE FINANCIAL YEAR WAS NOT APPLICABLE. IN THESE CIRCUMSTANCES, WE DO NOT FIND ANY INFIRMITY IN T HE APPROACH OF THE LD. CIT(A) IN ALLOWING THE ENTIRE CLA IM IN THE YEAR UNDER CONSIDERATION. IN VIEW THEREOF, ESPECIALLY WHEN THE REV ENUE HAVE NOT PLACED ANY MATERIAL BEFORE US SO AS TO ENABLE US TO TAKE A DIFF ERENT VIEW IN THE MATTER NOR INVITED OUR ATTENTION TO ANY CONTRARY DECISION, WE ARE NOT INCLINED TO INTERFERE. CONSEQUENTLY, GROUND NOS. 1 &2 IN THE APPEAL OF THE REVENUE FOR A.Y. 2005-06 ARE DISMISSED. 10. GROUND NOS. 3 AND 4 IN THE APPEAL OF THE REVENUE FOR THE AY 2 005-06 RELATE TO DISALLOWANCE OF EMPLOYEES CONTRIBUTION TOWAR DS PF. THE AO - 12 ITA NOS. 3659 - 3736/AHD/2008 & 2147 -2161/AHD./2009 NOTICED THAT THE ASSESSEE DEPOSITED FOLLOWING EMPLOYEES CONTRIBUTION TOWARDS PF BEYOND THE DUE DATE(S) STIPULATED UNDER THE RELEVANT PF ACT: SR.NO. MONTH EMPLOYEES CONTRIBUTION DUE DATE DATE OF PAYMENT 1. JULY 20,445 20.08.2004 04.09.2004 2. AUGUST 30,235 20.09.2004 04.10.2004 3. SEPT 40,074 20.10.2004 24.11.2004 4. OCT. 48,006 20.11.2004 24.11.2004 TOTAL 1,38,760 10.1. TO A QUERY BY THE AO, THE ASSESSEE DID NOT FURNI SH ANY REPLY. ACCORDINGLY, THE AO DISALLOWED THE AFORESAID AMOUNT OF RS.1,38,760/- WHILE REFERRING TO PROVISIONS OF SECTION 2(24)(X) AND SECTION 3 6(1)(VA) OF THE.ACT. 11.. ON APPEAL, THE LD.CIT(APPEALS) DELETED THE DISA LLOWANCE IN THE FOLLOWING MANNER:- 14. IN DECIDING THIS ISSUE, I DO NOT FIND IT NECESSARY TO REFER TO THE SUBMISSIONS OF THE AR, WHICH IS INSUFFICIENT IT ANY CASE. TH E PROVISO TO SEC 43B CLEARLY LAYS DOWN THAT NO DISALLOWANCE UNDER THE SAI D SECTION, WHICH INCLUDES SUMS PAYABLE BY THE ASSESSEE AS CONTRIBUTIONS TO PF ETC CAN BE DISALLOWED IF SUCH SUMS ARE ACTUALLY PAID ON OR BEFORE THE DUE DATE OF FILING THE RETURN OF INCOME (ROI) U/S.13 9(1) IN RESPECT OF PREVIOUS YEAR IN WHICH THE LIABILITY TO PAY SUCH SUM HAS BEE N INCURRED. IN THE CASE OF THE ASSESSEE, THE DELAY PERTAINED TO THE MONTHS OF JULY, AUGUST, SEPTEMBER, AND OCTOBER, 2004. IN NONE OF TH E CASES, THE DELAY WAS MORE THAN A MONTH, AND ALL THE PAYMENTS HAD B EEN MADE BY NOVEMBER, 2004. SINCE, ALL SUCH PAYMENTS HAD BEEN DEPO SITED IN THE GOVERNMENT ACCOUNT WITHIN THE SAME FINANCIAL YEAR, TH ERE WAS NO CASE FOR MAKING ANY DISALLOWANCE, SINCE THE PROVISO TO SEC 43 B ALLOWED TIME UP TO THE DUE DATE OF FILING THE RETUR N, WHICH WAS MANY MONTHS LATER. INTERESTINGLY, THE AO MADE NO REFERENC E TO THE PROVISIONS OF SEC. 43B. GIVEN THE FACTS OF THE CASE AND THE CLEAR PROVISIONS OF SEC 43B, THE DISALLOWANCE AND ADDITION OF THE SUM RS.1,38,760 WILL STAND DELETED. - 13 ITA NOS. 3659 - 3736/AHD/2008 & 2147 -2161/AHD./2009 12. THE REVENUE IS NOW IN APPEAL BEFORE US AGAINST THE AFORESAID FINDINGS OF THE LD. CIT(APPEALS). THE LD. DR SUPPORTED THE FINDINGS OF THE AO WHILE THE LD. AR ON BEHALF OF THE ASSESSEE RELIED UPON THE IM PUGNED ORDER IN THE LIGHT OF DECISION OF THE HON'BLE SUPREME COURT IN CIT VS. ALOM EXTRUSIONS LTD. (2009) 319 ITR 306 (SC) 13. WE HAVE HEARD BOTH THE PARTIES AND GONE THROU GH THE FACTS OF THE CASE AS ALSO THE AFORESAID DECISION. AS REGARDS EMPLO YERS AND EMPLOYEES CONTRIBUTION TOWARDS PF , WE FIND THAT THE ITAT AHMEDABAD BENCHES HAVE BEEN CONSISTENTLY FOLLOWING THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT V. P.M. ELECTRONICS LTD., 220 CTR 635 (DELHI), WHEREIN RELYING UPON THE DECISION OF HONBLE APEX C OURT IN THE CASE OF CIT VS. VINAY CEMENT LTD.,213 CTR (SC) 268 , THE HONBL E COURT CONCURRED WITH THE VIEW TAKEN BY THE HONBLE MADRAS HIGH COURT IN NE XUS COMPUTER (P) LTD.,219 CTR(MAD) 54 IN HOLDING THAT EMPLOYER/EMPL OYEES CONTRIBUTION TOWARDS PROVIDENT FUND PAYMENTS MADE AFTER THE DUE DA TE PRESCRIBED UNDER THE EMPLOYEES PROVIDENT FUND ACT AND RULES MADE THERE UNDER AND BEFORE THE DUE DATE FOR FURNISHING THE RETURN OF INCOME UN DER SUB SEC. 1 OF SEC. 139 OF THE ACT, ARE ALLOWABLE UNDER S.36(1)(VA) READ WITH SEC. 2(24(X) AND SEC. 43B OF THE ACT. 13.1 MOREOVER, RECENTLY HONBLE APEX COURT IN THE CASE OF CIT VS ALOM EXTRUSIONS LTD., 319 ITR 306 (SC) HELD THAT THE OMISSIO N OF THE SECOND PROVISO TO SECTION 43B OF THE ACT BY THE FINANCE ACT, 20 03, OPERATED, RETROSPECTIVELY, WITH EFFECT FROM, APRIL 1, 1988 AND N OT PROSPECTIVELY FROM APRIL 1, 2004.HONBLE COURT OBSERVED THAT EARLIER UNDER T HE SECOND PROVISO TO SECTION 43B AS AMENDED BY THE FINANCE ACT, 1989, THE ASS ESSEES WERE ENTITLED TO DEDUCTION ONLY IF THE CONTRIBUTION STOOD CREDITED ON OR BEFORE THE DUE DATE GIVEN IN THE PROVIDENT FUNDS ACT. THIS CREATED FURTHER DIFFICULTIES AND ON A REPRESENTATION MADE TO THE FINANCE MINISTRY, ON E MORE AMENDMENT WAS MADE BY THE FINANCE ACT, 2003. THOUGH THIS AMENDMENT WAS MADE APPLICABLE WITH EFFECT FROM APRIL 1, 2004, THE AMENDM ENT WAS CURATIVE IN - 14 ITA NOS. 3659 - 3736/AHD/2008 & 2147 -2161/AHD./2009 NATURE AND APPLIED RETROSPECTIVELY WITH EFFECT FROM A PRIL 1, 1988.IT WAS CLARIFIED THAT WHEN A PROVISO IN A SECTION IS INSERTED TO REMEDY UNINTENDED CONSEQUENCES AND TO MAKE THE SECTION WORKABLE, THE PROVISO W HICH SUPPLIES AN OBVIOUS OMISSION THEREIN IS REQUIRED TO BE READ RETR OSPECTIVELY IN OPERATION, PARTICULARLY TO GIVE EFFECT TO THE SECTION AS A WHOLE. 13.2 HONBLE KARNATAKA HIGH COURT IN THEIR DECISIO N IN ANZ INFORMATION TECHNOLOGY P LTD., 318 ITR 123 WHILE FOLLOWING THEI R EARLIER DECISION IN CIT VS. SABARI ENTERPRISES,298 ITR 141(KAR.) CONCLUDED THA T DEPOSITS MADE BY THE EMPLOYER OF THE EMPLOYEES CONTRIBUTION BELATEDLY AND CONTRIBUTION TOWARDS ESI & PF UNDER THE RELEVANT ENACTMENTS CAN NOT BE TREATED AS INCOME OF THE ASSESSEE U/S 36(1)(VA) READ WITH SEC. 2(24)( X) IN VIEW OF PROVISIONS OF SEC. 43B OF THE ACT. 13.3 HONBLE DELHI HIGH COURT IN ANOTHER DECISION DATED 23.12.2009 IN CIT VS. AIMIL LTD.(DELHI)IN ITA NO. 1063/2008 OBSERVED TH AT SEC. 2(24)(X) PROVIDES THAT AMOUNTS RECEIVED BY AN ASSESSEE FROM EMPL OYEES TOWARDS PF CONTRIBUTIONS ETC. SHALL BE INCOME. S. 36 (1) (VA) P ROVIDES THAT IF SUCH SUMS ARE CONTRIBUTED TO THE EMPLOYEES ACCOUNT IN THE RELEVAN T FUND ON OR BEFORE THE DUE DATE SPECIFIED IN THE PF LEGISLATION, THE ASSESSE E SHALL BE ENTITLED TO A DEDUCTION. THE SECOND PROVISO TO S. 43B (B) PROVIDED THA T ANY SUM PAID BY THE ASSESSEE AS AN EMPLOYER BY WAY OF CONTRIBUTION TO ANY PROVIDENT FUND SHALL BE ALLOWED AS A DEDUCTION ONLY IF PAID ON OR BEF ORE THE DUE DATE SPECIFIED IN 36(1)(VA) OF THE ACT. AFTER THE OMISSION OF THE SECOND PROVISO W.E.F 1.4.2004, THE DEDUCTION IS ALLOWABLE UNDER THE FIRST PROVISO IF THE PAYMENT IS MADE ON OR BEFORE THE DUE DATE FOR FURNISH ING THE RETURN OF INCOME. THE HONBLE HIGH COURT WHILE CONSIDERING WHET HER THE BENEFIT OF S. 43B CAN BE EXTENDED TO EMPLOYEES CONTRIBUTION AS WELL , WHICH ARE PAID AFTER THE DUE DATE UNDER THE PF LAW BUT BEFORE THE DUE DA TE FOR FILING THE RETURN, HELD THAT (I) THOUGH THE REVENUE HAS ARGUED THAT A DISTINCTION IS TO BE MADE BETWEEN EMPLOYERS CONTRIBUTION AND EMPLOYEES CONTRIBUTION AND THAT EMPLOYEES - 15 ITA NOS. 3659 - 3736/AHD/2008 & 2147 -2161/AHD./2009 CONTRIBUTION BEING IN THE NATURE OF TRUST MONEY IN TH E HANDS OF THE ASSESSEE CANNOT BE ALLOWED AS A DEDUCTION IF NOT PAID ON OR BE FORE THE DUE DATE SPECIFIED IN THE PF LAW, THE SCHEME OF THE ACT IS THAT E MPLOYEES CONTRIBUTION IS TREATED AS INCOME U/S 2 (24) (X) ON RECEIPT BY THE ASS ESSEE AND ALLOWED AS A DEDUCTION U/S 36 (1) (VA) ON MAKING DEPOSIT WITH THE CO NCERNED AUTHORITIES. S. 43B (B) STIPULATES THAT SUCH DEDUCTION WOULD BE PERM ISSIBLE ONLY ON ACTUAL PAYMENT; (II) THE QUESTION AS TO WHEN ACTUAL PAYMENT SHOULD BE M ADE IS ANSWERED BY VINAY CEMENTS 213 CTR 268 WHERE THE DELETION OF THE SE COND PROVISO TO S. 43B W.E.F 1.4.2004 WAS HELD APPLICABLE TO EARLIER YEAR S AS WELL. AS THE DELETION OF THE 2ND PROVISO IS RETROSPECTIVE, THE CASE HAS T O BE GOVERNED BY THE FIRST PROVISO. DHARMENDRA SHARMA 297 ITR 320 (DEL) & P.M. ELECTRONICS 313 ITR 161 (DELHI) FOLLOWED; (III) IF THE EMPLOYEES CONTRIBUTION IS NOT DEPOSITED BY THE DUE DATE PRESCRIBED UNDER THE RELEVANT ACTS AND IS DEPOSITED LATE, THE EMPL OYER 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 T HE ESI ACT. THEREFORE, THE ACT PERMITS THE EMPLOYER TO MAKE THE DEP OSIT WITH SOME DELAYS, SUBJECT TO THE AFORESAID CONSEQUENCES. INSOFAR AS TH E INCOME-TAX ACT IS CONCERNED, THE ASSESSEE CAN GET THE BENEFIT IF THE ACTUA L PAYMENT IS MADE BEFORE THE RETURN IS FILED, AS PER THE PRINCIPLE LAID DOWN IN VINAY CEMENT. 13.4 IN VIEW OF THE FOREGOING AND IN THE LIGHT O F VIEW TAKEN IN THE AFORESAID DECISIONS , WE HAVE NO HESITATION IN HOLDING THAT THE EMPLOYEES CONTRIBUTION TOWARDS PF PAID BY THE ASSESSEE BEFORE THE DUE DATE O F FILING OF RETURN U/S 139(1) OF THE ACT FOR THE ASSESSMENT YEAR UNDER CONSIDER ATION IS ADMISSIBLE. THEREFORE, WE HAVE NO HESITATION IN UPHOLDING THE FI NDINGS OF THE LD. CIT(A), DIRECTING THE AO TO ALLOW PAYMENT MADE ON ACCOUNT OF EMPLOYEES CONTRIBUTION TOWARDS PF ON OR BEFORE THE DUE DATE OF FILING OF THE RETURN U/S 139(1) OF THE ACT. WITH THESE DIRECTIONS, GROUND NOS. 3 & 4 IN THE APPEAL OF THE REVENUE ARE DISMISSED. 14. GROUND NO.5 IN THE APPEAL OF THE REVENUE FOR TH E A.Y. 2005-06 RELATES TO DISALLOWANCE OF RS.3,34,519/- ON ACCOUNT OF SERVICE TAX. THE AO NOTICED DURING THE COURSE OF ASSESSMENT PROCEEDINGS THAT THE ASSESSEE REFLECTED CONTRACT RECEIPTS OF RS.2,11,77,536/- IN THE PROFIT & L OSS ACCOUNT WHILE TDS CERTIFICATE ANNEXED WITH THE RETURN REVEALED RECEIPT OF RS.215.12 LACS. TO A QUERY BY THE AO, SEEKING RECONCILIATION OF THE DIFFERENCE , THE ASSESSEE - 16 ITA NOS. 3659 - 3736/AHD/2008 & 2147 -2161/AHD./2009 SUBMITTED THAT IN THE RETURN THEY REFLECTED AN AMOUN T OF RS.231.62 LACS ON GROSS INCOME INCLUDING SERVICE TAX AND THE AMOUNT OF TOTA L SERVICE TAX WAS SHOWN SEPARATELY IN THE BALANCE SHEET. THEREFORE, THE RECEIPTS INCLUSIVE OF SERVICE TAX EXCEEDED THE AMOUNT OF RS.215.12 LACS AS PER T HE TDS CERTIFICATE AND ACCORDINGLY,NO ADDITION COULD BE MADE. HOWEVER, T HE AO DID NOT ACCEPT THE SUBMISSIONS OF THE ASSESSEE, THERE BEING NO EVIDENCE REG ARDING PAYMENT OF SERVICE TAX NOR THE ASSESSEE FURNISHED ANY RECONCILIATIO N OF THE AMOUNT MENTIONED IN THE TDS CERTIFICATE VIS--VIS AMOUNT RE LECTED IN THE PROFIT & LOSS ACCOUNT. IN THE RESULT, AN AMOUNT OF RS. 3,34,519/- WAS DISALLOWED 14.1 IN THE AY 2006-07 ALSO, AN AMOUNT OF RS. 40,08 ,699 WAS ADDED SINCE THE ASSESSEE FAILED TO RECONCILE THE RECEIPTS SHOWN IN THE P & L ACCOUNT VIS- -VIS AMOUNT REFLECTED IN THE TDS CERTIFICATES 15. ON APPEAL, THE LD. CIT(APPEALS) DELETED THE DI SALLOWANCE IN THE AY 2005-06 IN THE FOLLOWING TERMS:- 9. IN THE WRITTEN SUBMISSIONS, THE AR HAS CONTENDED T HAT THE FIGURE OF SERVICE TAX PAID/PAYABLE HAD BEEN REFLECTED I N THE AUDITED PROFIT AND LOSS ACCOUNT, AND WAS ALSO REFLECTED IN THE BA LANCE HSEET. VIDE LETTER DATED 20-08-2007, THE ASSESSEE HAD SUBMITTE D DETAILED WORKING OF SERVICE TAX BEFORE THE AO. THE AO HAD ISSUE D THE SHOW CAUSE NOTICE ON 22-10-2007, AND THE ASSESSEE HAD REPLIED TO THE SAME VIDE LETTER DATED 29-10-2007, ON WHICH DATE THE A O ASKED THE ASSESSEE TO RECONCILE THE DIFFERENCE. HOWEVER, WITHIN TWO DAYS, THE AO PASSED THE ASSESSMENT ORDER WITHOUT PROVIDING ANY OP PORTUNITY TO THE ASSESSEE TO EXPLAIN THE DIFFERENCE. THE ASSESSEE HAD AT TENDED ALL THE HEARINGS AND HAD PRODUCED ALL THE BOOKS OF ACCOUN T WHICH HAVE BEEN VERIFIED BY THE AO. THEREFORE NO ADDITION COULD BE MADE ON THE SOLE GROUND THAT NO PROOF IN RELATION TO THE PAYMENT OF SERVICE TAX HAD BEEN FURNISHED. IT HAS BEEN FURTHER SUBMITTED THAT T HE ASSESSEE DID BUSINESS WITH REPUTED COMPANIES SUCH AS RIL, ESSAR STEEL LTD AND STEEL CORPORATION OF GUJARAT LTD, ALL OF WHOM MAKE P AYMENTS ONLY THROUGH ACCOUNT PAYEE CHEQUES, SO THAT THERE IS NO SCOPE FOR CONCEALING ANY RECEIPT. 10. FROM THE FACTS OF THE ISSUE AT STAKE, AS THEY HAVE E MERGED FROM THE OBSERVATIONS OF THE AO IN THE ASSESSMENT ORDER, AN D THE - 17 ITA NOS. 3659 - 3736/AHD/2008 & 2147 -2161/AHD./2009 SUBMISSIONS OF THE AR, IT IS CLEAR THAT THE AO MADE THE ADDITION SIMPLY BECAUSE HE WANTED TO DO SO. HE MADE THE ADDITION INSPI TE OF THE FACT THAT THE ASSESSEE HAD CLEARLY EXPLAINED THAT THE GROSS RECEI PT OF RS. 231.62 LAKHS WHICH WAS INCLUSIVE OF SERVICE TAX OF RS.19.86 L AKHS, WAS MUCH IN EXCESS OF THE TOTAL RECEIVABLES OF RS.215.12 LAKHS CALCULATED ON THE BASIS OF THE TDS CERTIFICATES. IN EFFECT , THE GROSS RECEIPT DISCLOSED BY THE ASSESSEE WAS IN EXCESS OF WHAT HAD BEEN WORKED OUT BY THE AO AND THEREFORE, THERE REMAINED N O SCOPE FOR EXPLAINING THE DIFFERENCE OF RS.3,34,519. THE ASSESSEE HAD PRODUCED ALL THE BOOKS OF ACCOUNT, AS ALSO THE AUDITED ACCOUNTS WHICH CLEARLY SHOWED THAT SERVICE TAX PAYMENTS HAD BEEN MADE, AS REFLECTE D IN THE PROFIT AND LOSS ACCOUNT, BALANCE SHEET AND THE LEDGER. THEREFORE, NO DISALLOWANCE COULD BE MADE ON THE GROUND THAT THE SERVI CE TAX COMPONENT WAS NOT VERIFIABLE, AND THAT NO DETAIL OF SERVICE TAX HAD BEEN FURNISHED BY THE ASSESSEE. GIVEN SUCH FACTS, I HAVE N O OTHER OPTION BUT TO DIRECT THE AO TO DELETE THE ADDITION O F RS.3,34,519. 15.1 SIMILARLY IN THE AY 2006-07 , THE LD. CIT(A ) DELETED THE ADDITION, INTER ALIA, ON THE GROUND THAT THE ASSESSEE DID BUSINESS WITH T HE REPUTED COMPANIES LIKE RIL, ESSAR STEEL LTD. AND STEEL CORPORA TION OF GUJRAT LTD. 16. THE REVENUE IS NOW IN APPEAL BEFORE US AGAINST TH E FINDINGS OF THE LD. CIT(APPEALS). THE LD. DR SUPPORTED THE FINDINGS OF T HE AO WHILE THE LD. AR ON BEHALF OF THE ASSESSEE RELIED UPON THE IMPUGNED ORD ER. 17. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE FACTS OF THE CASE. WE FIND THAT THE LD. CIT(APPEALS) DELETED THE DI SALLOWANCE IN THE AY 2005-06 ON THE GROUND THAT THE GROSS RECEIPT OF RS.215 .12 LACS WAS INCLUSIVE OF RS.19.86 LACS ON ACCOUNT OF SERVICE TAX. THERE IS NOT HING TO SUGGEST THE ASSESSEE ACTUALLY RECONCILED THE DIFFERENCE SIMILARLY IN THE AY 2006- 07,ADDITION WAS DELETED BY THE LD. CIT(A) WITHOUT BR INGING OUT CLEARLY AS TO HOW THE RECEIPTS SHOWN IN THE P & L ACCOUNT ARE RECONCILE D WITH THE AMOUNT REFLECTED IN THE TDS CERTIFICATES. INDISPUTABLY, RECONCI LIATION OF THE GROSS RECEIPT AS PER P & L ACCOUNT VIS--VIS AMOUNT MENTIONED IN TDS CERTIFICATE WAS NEITHER SUBMITTED BEFORE THE AO OR THE LD. CIT(A PPEALS) AND NOR EVEN HAS BEEN BROUGHT TO OUR NOTICE. SIMPLY BECAUSE THE A SSESSEE PRODUCED THE BOOKS OF ACCOUNT DID NOT LEAD TO CONCLUSION THAT THE AMOU NT WAS RECONCILED. - 18 ITA NOS. 3659 - 3736/AHD/2008 & 2147 -2161/AHD./2009 SINCE THE ASSESSEE DID NOT BRING TO OUR NOTICE ANY RECON CILIATION OF THE AMOUNT SHOWN IN THE PROFIT & LOSS ACCOUNT VIS--VIS SHOWN IN THE TDS CERTIFICATE IN THESE TWO ASSESSMENT YEARS, WE CONSIDER IT FAIR AND APPROPRIATE TO SET ASIDE THE ORDERS OF THE LD. CIT(A) AND RESTORE THE ISSUES RAISED IN GROUND NO.5 IN THE APPEAL OF THE REVENU E FOR THE AY 2005-06 AND GROUND NO.1 IN THEIR APPEAL FOR THE AY 2006-07, TO HIS FILE FOR DECIDING THE ISSUES AFRESH IN ACCORDANCE WITH LAW, BR INGING OUT CLEARLY THE RECONCILIATION OF THE RECEIPTS SHOWN IN THE PROFIT & LOSS ACCOUNT VIS--VIS AMOUNT REFLECTED IN THE TDS CERTIFICATES AND O F COURSE AFTER ALLOWING SUFFICIENT OPPORTUNITY TO BOTH THE PARTIES. WITH THESE OBSERVATIONS, GROUND NO. 5 IN THE APPEAL OF THE REVENU E FOR THE AY 2005-06 AND GROUND NO.1 IN THEIR APPEAL FOR THE AY 2006-07 ARE DISPOSED OF. 18. GROUND NO.2 IN THE APPEAL OF THE REVENUE FOR ASSE SSMENT YEAR-2006- 07 PERTAINS TO DISALLOWANCE OF DIWALI EXPENSES OF RS.88 ,476/-. SINCE THERE WAS FALL IN NET PROFIT BY 1.76%, THE AO ASKED THE ASSESSEE TO PRODUCE RELEVANT BILLS/VOUCHERS AS ALSO RELEVANT BOOKS OF ACCOUNT I N SUPPORT OF THE AFORESAID EXPENDITURE. DESPITE REQUEST MADE VIDE ORDE R SHEET ENTRY DATED 8.9.2008, 22.9.2008, 23.10.2008, 14.11.2008 AND 21. 11.2008, THE ASSESSEE DID NOT SUBMIT THE RELEVANT BILLS AND VOUCHERS AND INST EAD CLAIMED IN THEIR LETTER DATED 29/10/2008 THAT PAYMENT FOR DIWALI EXP ENSES WAS MADE BY ACCOUNT PAYEE CHEQUES. HOWEVER, THE AO DID NOT ACCEPT THE SUBMISSIONS OF THE ASSESSEE ON THE GROUND THAT THAT THE ASSESSEE DID NOT PRODUCE RELEVANT BILLS AND VOUCHERS AS ALSO THE BOOKS OF ACCOUNTS DESPITE REPEA TED OPPORTUNITIES. AS A RESULT, THE AFORESAID AMOUNT WAS D ISALLOWED. 19. ON APPEAL, THE LD. CIT(APPEALS) DELETED THE DISALLOWANCE ON THE GROUND THAT AMOUNT OF RS.88,476/- WAS VERY SMALL KEEPIN G IN MIND THE TOTAL TURNOVER OF THE ASSESSEE. THE LEARNED CIT(APPEALS) FUR THER OBSERVED THAT BUSINESS OF THE ASSESSEE WAS FULLY DEPENDENT UPON CERTAIN B IG CORPORATIONS - 19 ITA NOS. 3659 - 3736/AHD/2008 & 2147 -2161/AHD./2009 WHOSE SENIOR OFFICERS WERE GIVEN THE CUSTOMARY DIWALI GI FTS FOR SUSTAINING THE BUSINESS. INTER ALIA, SINCE THE ACCOUNTS WERE AUDITED, THE LD. CIT(APPEALS) DELETED THE DISALLOWANCE. 20. THE REVENUE IS NOW IN APPEAL BEFORE US AGAINST THE FINDINGS OF THE LEARNED CIT(APPEALS). THE LD. DR RELIED UPON THE FI NDINGS IN THE ASSESSMENT ORDER WHILE CONTENDING THAT THE ASSESSEE DID NOT FURNISH ANY DETAILS NOR RELEVANT BILLS/VOUCHERS BEFORE THE AO ,DESPITE REPEATED OPPORTUNITIES. ON THE OTHER HAND, THE LD. AR ON BEHALF OF THE ASSESSEE SUPP ORTED THE FINDINGS OF THE LD. CIT(APPEALS). 21. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUG H THE FACTS OF THE CASE. WE FIND THAT THE ASSESSEE DID NOT FURNISH ANY DETAILS R EGARDING DIWALI EXPENSES NOR PRODUCED THE RELEVANT BILLS/VOUCHERS BEFO RE THE AO DESPITE REPEATED OPPORTUNITIES. EVEN BEFORE THE LD. CIT(A) NO SUCH BILLS OR VOUCHERS WERE PRODUCED AND STILL THE LD. CIT(APPEALS) DELETED T HE DISALLOWANCE. BEFORE US ALSO, THE ASSESSEE DID NOT FURNISH ANY DETAIL NO R EXPLAINED THE NATURE OF GIFTS. ADMITTEDLY, THIS IS THE FIRST YE AR OF ANY SUCH CLAIM WHILE IN THE PRECEDING YEAR NO SUCH AMOUNT WAS CLAIMED. THEREF ORE, THE ONUS IS ON THE ASSESSEE TO ESTABLISH THAT THE EXPENDITURE WAS INCURR ED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS .IN THE ABSENCE OF ANY EVIDENCE, THERE WAS NO JUSTIFICATION ON THE PART OF THE LD. CIT(APPEA LS) IN DELETING THE DISALLOWANCE. IN VIEW THEREOF, ESPECIALLY WHEN THERE I S NO MATERIAL BEFORE US THAT THE SAID EXPENDITURE WAS INCURRED WHOLLY AND EXCLUSI VELY FOR THE PURPOSE OF BUSINESS, WE HAVE NO ALTERNATE BUT TO VACATE THE FI NDINGS OF THE LD. CIT(APPEALS) AND RESTORE THE ORDER OF THE ASSESSING OFFI CER. WITH THESE OBSERVATIONS, GROUND NO.2 IN THE APPEAL OF THE REVENU E FOR THE ASSESSMENT YEAR 2006-07 IS ALLOWED. 22. GROUND NO.3 IN THE APPEAL OF THE REVENUE FO R THE AY 2006-07 RELATES TO DISALLOWANCE OF SALARY AND BONUS EXPENSES OF RS.5,34,56 3/-. THE AO NOTICED THAT THE ASSESSEE CLAIMED SALARY EXPENSES OF RS.2, 67,28,165/- AND - 20 ITA NOS. 3659 - 3736/AHD/2008 & 2147 -2161/AHD./2009 THE BONUS EXPENSES OF RS.7,41,310/-. SINCE AN AMOUNT OF RS.23,13,103/- ON ACCOUNT OF SALARY AND RS. 7,41,310/- TOWARDS BONUS WAS SHOWN AS PAYABLE IN THE BALANCE SHEET, THE AO ASKED THE ASSESSEE T O FURNISH SUPPORTING EVIDENCE FOR THESE EXPENSES. HOWEVER, THE A SSESSEE DID NOT FURNISH ANY SUPPORTING EVIDENCE. SINCE THERE WERE NO SI GNATURES AT VARIOUS PLACES IN THE SALARY REGISTERS, THE AO DISALLOWED 2% O F THE TOTAL SALARY EXPENSES, RESULTING IN DISALLOWANCE OF 5,34,563/-. 23. ON APPEAL THE LEARNED CIT(APPEALS) DELETED THE D ISALLOWANCE IN THE FOLLOWING TERMS:- 18. I HAVE CAREFULLY CONSIDERED BOTH THE POSITIONS. I FIND THAT THE ASSESSEES TOTAL CONTRACTUAL RECEIPTS HAD RISEN FROM RS.2.15 CR ORES IN THE IMMEDIATELY PRECEDING YEAR TO RS.4.54 CRORES IN THE YEAR UNDER CONSIDERATION (APPROX. DOUBLED), AND THE RISE IN SALARY E XPENSES WAS FROM 1,47,44,610 TO RS.2,67,28,165 WHICH ACCORDING TO ME WAS NOT UNUSUAL OR UNREASONABLE. THE AO DISALLOWED 2% OF TH E SALARY EXPENSES ONLY ON THE GROUND THAT THERE WERE NO SIGNATURE S AT VARIOUS PLACES IN THE REGISTERS WITHOUT TAKING INTO ACCOUNT THE FA CT THAT THE QUANTUM OF MIGRANT AND ILLITERATE LABOURERS EMPLOYED IN THE ASSESSEES LINE OF BUSINESS. HENCE, THE DISALLOWANCE OF 2% ON ACCOUN T OF SALARY EXPENSES WAS NOT CALLED FOR. THE AO IS DIRECTED TO DELE TE THE ADDITION OF RS.5,54,363. 24.. THE REVENUE IS NOW IN APPEAL BEFORE US AGAINST TH E FINDINGS OF THE LEARNED CIT(APPEALS). THE LD. DR RELIED UPON THE FI NDINGS IN THE ASSESSMENT ORDER WHILE THE LD. AR ON BEHALF OF THE ASSESSEE SUPP ORTED THE ORDER OF THE LD. CIT(APPEALS). 25. WE HAVE HEARD BOTH THE PARTIES AND GONE THROU GH THE FACTS OF THE CASE. WE FIND THAT THE LD. CIT(APPEALS) WHILE DELETING THE ADHOC DISALLOWANCE OBSERVED THAT THE RECEIPTS IN THE YEAR UNDER CONSIDERATI ON INCREASED TO 4.54 CRORES AS AGAINST 2.15 CRORES IN THE IMMEDIATELY PRECEDIN G YEAR AND CORRESPONDINGLY, SALARY EXPENDITURE ALSO INCREASED TO RS.2 ,67,28,165/- AS AGAINST RS.1,47,44,610/- IN THE PRECEDING YEAR. SINCE THE LABOUR WAS - 21 ITA NOS. 3659 - 3736/AHD/2008 & 2147 -2161/AHD./2009 GENERALLY ILLITERATE THEY MAY NOT HAVE SIGNED IN THE REGISTER MAINTAINED FOR THE PURPOSE. ACCORDINGLY, THE LD. CIT(A) CONCLUDED THA T THE ADHOC DISALLOWANCE OF 2% OF THE SALARY WITHOUT PIN-POINTING THE SPECIFIC DEFECTS WAS NOT JUSTIFIED. IN THESE CIRCUMSTANCES, ESPECIALLY WHEN T HE REVENUE DID NOT PLACE ANY MATERIAL BEFORE US SO AS TO ENABLE US TO TAKE DIFFERENT VIEW IN THE MATTER, WE ARE NOT INCLINED TO INTERFERE WITH THE FI NDINGS OF THE LD. CIT(APPEALS). CONSEQUENTLY, GROUND NO.3 IN THE APP EAL OF THE REVENUE FOR THE AY 2006-07 IS DISMISSED. 26. GROUND NOS. 6 & 7 IN THE APPEAL OF THE REVENUE A ND GROUND NO.3 IN THE APPEAL OF THE ASSESSEE FOR THE AY 2005-06 AS ALSO GR OUND NOS.4 & 5 IN THE APPEAL OF THE REVENUE AND GROUND NO.2 IN THE A PPEAL OF THE ASSESSEE FOR THE AY 2006-07, BEING MERE PRAYERS NOR ANY SUBMISSIONS H AVING BEEN MADE ON THESE GROUNDS, DO NOT REQUIRE ANY SEPARATE ADJUDI CATION WHILE NO ADDITIONAL GROUND HAVING BEEN RAISED BEFORE US IN TER MS OF RESIDUARY GROUND NO.4 IN THE APPEAL OF THE ASSESSEE FOR THE AY 2005-06 AND GROUND NO.3 IN THEIR APPEAL FOR THE ASSESSMENT YEAR 2006-07, ALL THE SE GROUNDS ARE DISMISSED. 27. IN THE RESULT, THE TWO APPEALS OF THE ASSESSEE AR E ALLOWED WHILE THOSE OF REVENUE ARE PARTLY ALLOWED ,BUT ALL FOR STATISTICAL PURPOSES. ORDER SIGNED, DATED AND PRONOUNCED IN THE OPEN COUR T ON 26 /08/2011. SD/- SD/- ( MUKUL SHRAWAT ) ( A.N. PAHUJA ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD. DATED:26/ 08/2011 T.C. NAIR, SR. PS COPY OF THE ORDER FORWARDED TO : - 22 ITA NOS. 3659 - 3736/AHD/2008 & 2147 -2161/AHD./2009 1. M/S.ESS ESS ENGINEERING,90, SEEMANAGAR SOCIETY-II,PALA NPUR PATIA RANDER ROAD, SURAT 2. ASSISTANT.CIT,CIRCLE-3, AAYAKAR BHAVAN ,MAJURA GATE, SURAT 3.CIT CONCERNED 4. CIT(APPEALS)-II, SURAT 5. DR, AHMEDABAD ,CBENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD 1. DATE OF DICTATION..11/08/2011 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 23/08/2011 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P.S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P.S./P.S. 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGI STRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER