Tesna Tech Private Limited , Baddi V. ITO, Parwanoo

ITA 5/CHANDI/2022

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 3511 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: B
• Assessment Year: 2017-2018
• Appeal Filed On: 11-01-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 54; 28; 154; 43B; 192; 139(1)

Judgement Text

आयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरणआयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरण,च瀃डीगढ़ 瀈यायपीठ च瀃डीगढ़ 瀈यायपीठच瀃डीगढ़ 瀈यायपीठ च瀃डीगढ़ 瀈यायपीठ ‘‘बी बीबी बी.’’, च瀃डीगढ़ च瀃डीगढ़च瀃डीगढ़ च瀃डीगढ़ IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH ‘B’ CHANDIGARH BEFORE: SMT. DIVA SINGH, JUDICIAL MEMBER & SHRI VIKRAM SINGH YADAV, ACCOUNTANT MEMBER आयकर आयकरआयकर आयकर अपील अपीलअपील अपील सं संसं सं./ ITA No. 5/CHD/2022 Assessment Year : 2017-18 Tesna Tech Pvt. Ltd., Plot No.8, Katha Industrial Area, Bhatolikalan, Baddi. बनाम VS The ITO, Parwanoo. 瀡थायी लेखा सं./PAN /TAN No: AACCT3509N अपीलाथ牸/Appellant 灹瀄यथ牸/Respondent िनधा榁琇रती क琉 ओर से/Assessee by : Shri Parikshit Aggarwal, CA राज瀡व क琉 ओर से/ Revenue by : Dr. Ranjeet Kaur, Sr.DR तारीख/Date of Hearing : 15.03.2022 उदघोषणा क琉 तारीख/Date of Pronouncement : 28.04.2022 आदेश आदेशआदेश आदेश/ORDER PER DIVA SINGH The present appeal has been filed by the assessee assailing the correctness of the order dated 07.12.2021 of CIT(A) (NFAC i.e. National Faceless Appeal Centre) Delhi pertaining to 2017-18 assessment year on the following grounds : “1. That on the facts, circumstances and legal position of the case, the Worthy CIT(A), in Appeal No. CIT(A)-Shimla/10497/2018-19 has erred in passing the order in contravention of the provisions of S. 250(6) of the Income Tax Act, 1961. 2. That on law, facts and circumstances of the case, the Worthy CIT(A) has erred in confirming the action of Ld. AO in making addition of Rs. 4,02,331/- u/s 36(l)(va) of the Act even when the appellant collected ESI and PF from salary of the employees and whole of the amount had been deposited well before the due date of filing of Income Tax Return. ITA 5 /CHD/2022 A.Y. 2017-18 Page 2 of 11 3. That on law, facts and circumstances of the case, the Worthy CIT(A) has erred in confirming the action of Ld. AO in making addition of Rs. 4,02,331/ - u/s 36(l)(va) of the Act even when the Ld. AO lacked powers to make such addition in the assessment order passed u/s 143(1). 4. That on law, facts and circumstances of the case, the Worthy CIT(A) has erred in setting aside to the file of the Ld. AO the issue of addition of Rs. 9,29,904/- made by the Ld. AO u/s 36(l)(va) even when such addition in itself deserved to be deleted and at the same time the Worthy CIT(A) lacked powers to set aside the issue to the file of Ld. AO as per the amendment to S. 250(1) by the Finance Act, 2001. 5. That on law, facts and circumstances of the case, the Worthy CIT(A)has erred in setting aside to the file of the Ld. AO the issue of addition of Rs. 10,90,306/- made by the Ld. AO u/s 36(l)(ii) even when such addition in itself deserved to be deleted and at the same time the Worthy CIT(A) lacked powers to set aside the issue to the file of Ld. AO as per the amendment to S. 250(1) by the Finance Act, 2001. 6. That the appellant craves leave for any addition, deletion or amendment in the grounds of appeal on or before the disposal of the same.” 2. The ld. AR inviting attention to the grounds submitted and ground no.1 is general in nature requiring no adjudication. The issues raised in ground Nos. 2 and 3. It was submitted is fully covered in favour of the assessee by virtue of the consistent orders of the ITAT wherein considering the amendments carried out by the Finance Act, 2021 in Section 36(1)(va) and 43B the issue has been decided in favour of the assesse. Accordingly, it was submitted that the said grounds may be allowed. 3. Addressing ground No. 4 it was his submission that the issue has been restored back by the CIT(A) requiring the Assessing Officer to verify the employees contribution. It was his submission that the power to set aside the issue of the AO is no longer vested with the CIT(A). However, he would have no ITA 5 /CHD/2022 A.Y. 2017-18 Page 3 of 11 objection if the said direction is substituted by the ITAT directing the AO to verify the facts. 4. Addressing ground No. 5 it was his submission that similar direction for remand back for verification has been given by the CIT(A). The direction it was submitted is contrary to the statutory provisions. Similar prayer as in ground No. 4 was repeated. 5. The ld. Sr. DR relied upon the impugned order. 6. We have heard the submissions of both the parties and perused the material available on record. It is seen that the legal issue arising in ground Nos. 2 and 3 pertains to the late deposit of ESI/PF in terms of the time lines as set out by the relevant statute. It is a matter of fact that when the deposits are made before the filing of the return of income i.e. well within the time of filing the return u/s 139(1) as per the Income Tax Act the relief is allowable. It is a matter of fact that the amendments carried out in section 36(1)(va) and 43B by the Finance Act, 2021 has consistently be held to the prospective in nature. The year under consideration is 2017-18 assessment year. The issue consequently is no longer res integra. For the sake of completeness relevant extract from ITA No. 373/CHD/2021 dated 21.04.2022 in the case of Vardhman Textiles Ltd. Vs. DCIT is given below:- ITA 5 /CHD/2022 A.Y. 2017-18 Page 4 of 11 “ 4 . W e h a v e h e a r d t h e r i v a l s u b m i s s i o n s a n d p e r u s ed t h e m a t e r i a l a v a i l a b l e o n r e c o r d . T h e s a i d i s s u e h a s b e e n c o n s id e r e d a t l e n g t h b y v a r i o u s o r d e r s o f t h e I T A T i n c l u d i n g t h e C h a n d i ga r h B e n c h i n I T A 1 9 4 / C H D / 2 0 2 1 d a t e d 1 8 . 1 1 . 2 0 2 1 i n t h e c a s e o f S u r y a R e s o r t s P v t . L t d . D h a r a m s h a l a , I T A N o . 2 5 5 / C H D / 2 0 1 1 d a t e d 0 2 . 1 1 . 2 0 2 1 i n t h e c a s e o f C Z A R F a u c e t s L i m i t e d i n IT A N o . 2 5 5 / C H D / 2 0 2 1 o r d e r d a t e d 0 1 . 1 1 . 2 0 2 1 . I n t h e f a c t s o f t h e p r e s e n t c a s e a l s o , i t i s s e e n t h a t t h e a m e n d m e n t s ca r r i e d o u t b y t h e F i n a n c e A c t , 2 0 2 1 i n S e c t i o n 3 6 ( 1 ) ( v a ) a n d 4 3 B w e r e c o n s i d e r e d b y t h e F i r s t A p p e l l a t e A u t h o r i t y t o b e c l a r i f i c a t o r y in n a t u r e , h e n c e , r e t r o s p e c t i v e i n o p e r a t i o n . W e h a v e s e e n t h a t t h i s i s s u e h a s b e e n c o n s i d e r e d b y t h e j u r i s d i c t i o n a l H i g h C o u r t i n t h e c a s e o f CIT Vs H e m l a E m b r o i d e r y M i l l s ( P ) L t d . ( 2 0 1 4 ) 3 6 6 I T R 1 6 7 (P & H ) . T h e j u r i s d i c t i o n a l H i g h C o u r t r e l y i n g u p o n i t s o w n d e c is i o n i n t h e c a s e o f C I T V s R a i A g r o I n d u s t r i e s 3 3 4 I T R 1 2 2 a n d c o n s id e r i n g t h e p r i n c i p l e l a i d d o w n b y t h e A p e x C o u r t i n t h e c a s e of C I T V s A l o m E x t r u s i o n s L t d . 3 1 9 I T R 3 0 6 ( S . C ) h a v e a d d r e s s e d t he l e g a l p o s i t i o n , t h o u g h i t n e e d b e c l a r i f i e d t h a t t h e d e c i s i o n r e n d er e d w a s i n t h e c o n t e x t o f a m e n d m e n t s c a r r i e d o u t b y w a y o f S e c o n d P r o v i s o t o S e c t i o n 4 3 B w h i c h w a s o m i t t e d b y F i n a n c e A c t , 2 0 0 3 . T h i s A m e n d m e n t w a s h e l d t o b e c l a r i f i c a t o r y a n d h e n c e w ou l d o p e r a t e r e t r o s p e c t i v e l y . I n t h e f a c t s o f t h e p r e s e n t c a s e , A m e n d m e n t b y w a y o f E x p l a n a t i o n 2 t o S e c t i o n 3 6 ( v a ) a n d E x p l a n a t i o n 5 t o S e c t i o n 4 3 B b y F i n a n c e A c t , 2 0 2 1 h a d b e e n h e l d t o b e h a v i n g p r os p e c t i v e e f f e c t . F o r t h e s a i d p u r p o s e s r e l y i n g u p o n t h e N o t e s o n C l au s e s a t t h e t i m e o f i n t r o d u c t i o n o f t h e F i n a n c e B i l l , 2 0 2 1 , t h e C o - or d i n a t e B e n c h e s h a v e c o n s i s t e n t l y h e l d t h a t t h e s a i d a m e n d m e n t s h a ve b e e n i n s e r t e d w . e . f . a s s e s s m e n t y e a r 2 0 2 0 - 2 1 a s s e s s m e n t y e a r . F o r r e a d y r e f e r e n c e , r e l e v a n t e x t r a c t f r o m I T A N o . 1 9 4 / C H D / 2 02 1 i n t h e c a s e o f S u r y a R e s o r t s Pvt. Ltd. Dharamshala i s g i v e n b e l o w : “4. We have heard the rival submissions and perused the material available on record. It is an admitted fact that there was a delay in the payment of EPF relatable to the employees’ contribution as far as the time limit set out by the specific Act is concerned. It is also an admitted fact that the return was filed by the assessee within the due date as per the time limit as set out u/s 139(1) of the Income Tax Act. Hence, the amount of the employees’ contribution of the EPF amounting to Rs. 5,24,104/- stood paid before the filing of the return. It is seen that the disallowance made was sustained by Addl. Commissioner on account of the fact that the Amendments carried out by Finance Act 2021 in Sections 36(1)(va) and Sec. 43B were considered to be clarificatory, hence retrospective in nature. The said view has consistently been held to be incorrect by various orders of the ITAT as on a bare consideration of the Notes on Clauses appended to the Finance Bill it was clarified that the Amendment will take effect from the First April 2021. Thus, the legal position thereon is well settled. The Co-ordinate Benches have consistently right from order dated03.08.2021 of the Delhi Benches in Insta Exhibitions Pvt. Ltd. Vs Addl. CIT, New Delhi in ITA No. 6941/Del/2017 and Hyderabad Benches vide order dated 01.07.2021 in M/s Crescent Roadways Pvt. Ltd. V Dy. CIT, Hyderabad in ITA No. 1952/Hyd./2018 have held that the amendments are prospective and not retrospective in nature. The reasoning has been addressed at length in the order dated 02.11.2021 in the case of Shri Sukhdev Singh, Mohali Vs ITO, Chandigarh in ITA 250/CHD/2021 wherein it was held: “4. We have heard the submissions and perused the material available on record. It is seen that the issue is no longer res-integra as the decision of the ITA 5 /CHD/2022 A.Y. 2017-18 Page 5 of 11 jurisdictional High Court amongst others has been followed by the ITAT Chandigarh Benches vide its order dated 01.07.2021 in the case of M/s Jupiter Aqua Lines Pvt. Ltd. Vs DCIT ITA 83/CHD/2021 and order dated 04.10.2021 in the case of Ajay Piplani Vs Assistant Director of Income Tax, CPC, Bengaluru in ITA No. 114/CHD/2021. Similar view has been expressed by the Delhi Benches vide order dated 03.08.2021 in Insta Exhibitions Pvt. Ltd. Vs Addl. CIT, New Delhi in ITA No. 6941/Del/2017, Hyderabad Benches vide order dated 01.07.2021 in M/s Crescent Roadways Pvt. Ltd. V Dy. CIT, Hyderabad in ITA No. 1952/Hyd./2018. We find that the issue has been elaborately discussed by the Co-ordinate Benches for example in Insta Exhibitions Pvt. Ltd. (supra) as under : 6. We have carefully considered contentions of the learned departmental representative and perused the orders of the lower authorities. The facts shows that the assessee has collected the sum of Rs. 12,16,260/- being employee's contribution under the provident fund and with respect to ESI laws. The above contribution was admittedly not deposited by the assessee within the due date prescribed under the respective ESI and PF statue however, same was deposited before the due date of filing of return of income. Therefore, the Id AO as well as the Id CIT(A) disallowed the same holding that such contribution becomes the income of the assessee under the provision of section 2(24)(x) of the Act and thereafter if the same is deposit within the due date prescribed under the respective laws then same is allowable as deduction u/s 36(l)(va) of the Act. Coordinate bench in case of DOT Vs Dee Development Engineers in ITA No. 4959/DEL/2016 ( A.Y 2011-12) has held as Under:- 7. We have heard both the parties and perused all the relevant material available on record. As regards Ground No. 1, the assessee company has not deposited the employees' contribution within the due date which is prescribed under the said statute i.e. Provident Fund and ESIC. This issue is dealt by the Hon'ble Delhi High Court in case of CIT vs. M/s Bharat Hotels Ltd. 410 ITR 417 wherein the issue is decided in favour of the revenue, without considering the decision of the Hon'ble Delhi High Court in case of CIT vs. AIMIL Ltd.(2010) 321 ITR 508 (Del.). But the Ld. AR relied upon the decision of the Hon'ble Delhi High Court In case of Pr, CU vs. Pro Interactive Service (India) Pvt. Ltd. ITA No. 983/2018 pronounced on 10.09.2018 wherein the Hon'ble High Court decided the issue in favour of the assessee relying upon the judgment of AIMIL Ltd. (supra). The Hon'ble Delhi High Court held that the legislative intent was/is to ensure that the amount paid is allowed as expenditure only when payment is actually made. We do not think that the legislative intent and objective is to treat belated payment of Employee's Provident Fund (EPD)and Employee's State Insurance Scheme (ESI) as deemed income of the employer under Section 2(24)(x) of the Act. It is settled law that when two judgments are available giving different views then the judgment which is in favour of the assessee shall apply as held in case of Vegetable Products Ltd. 82 ITR 192 by the Hon'ble Supreme Court. Hence, in light of the latest decision in case of Pro Interactive Service (India) Pvt. Ltd., ITA 5 /CHD/2022 A.Y. 2017-18 Page 6 of 11 the issue is covered in favour of the assessee. Hence, Ground No. 1 is dismissed." 7. Further with respect to the argument of the learned departmental representative that amendment made with finance act 2021 wherein explanation 1 is added u/s 36 (1) (va) of the act with effect from 1 April 2021, is applicable to the present case, we referred to the "Notes on clauses" at the time of introduction of the finance bill 2021 which says as Under:- "Clause 8 of the Bill seeks to amend section 36 of the Income-tax Act, relating to other deductions. Sub-section (1) of the said section provides for allowing of deductions provided for in the clauses thereof for computing the income referred to in section 28 of the said Act. Clause (va) of the said sub-section provides for allowance of deduction for any sum received by the assessee from any of his employees to which the provisions of sub-clause (x) of clause (24) of section 2 apply, if such sum is credited by the assessee to the employee's account in the relevant fund or funds on or before the due date. Explanation to the said clause provides that for the purposes of this clause, "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, contract of service or otherwise. It is proposed to insert Explanation 2 to clause (va) of sub- section (1) of the said section so as to clarify that the provisions of section 43B shall not apply and shall be deemed never to have been applied for the purposes of determining the "due date" under the said clause. This amendment will take effect from 1st April, 2021. And will accordingly, apply in relation to the assessment year 2021- 2022 and subsequent assessment years.” Therefore it is apparent that the above amendment do not apply to the assessment year 2014 - 15 in this appeal. 8. In view of this we allow the solitary ground of appeal raised by the assessee holding that the addition/disallowance made by the learned assessing officer of late deposit of employees contribution to the provident fund and ESI, as it is deposited before the due date of the filing of the return of an income but beyond the due date prescribed Under the respective provident fund and ESI laws is not sustainable in law. 9. In the result, appeal of the assessee is allowed. 5. We further find that the Chandigarh Benches also consistently following the decisions of the jurisdictional High Court in the case of CIT Vs Nuchem Ltd (ITA No. 323 of 2009) and CIT Vs Hemla Embroidery Mills Pvt. Ltd.(2014) 366 ITR 167 have allowed similar claims of the assessee taking note of the fact the various Co-ordinate Benches have consistently held that the amendment to section 36(l)(va) and u/s 43B of the Act effected by the Finance Act 2021 is applicable prospectively ITA 5 /CHD/2022 A.Y. 2017-18 Page 7 of 11 ,reading from the Notes on Clauses at the time of introduction of the Finance Act, 2021, specifically stating the amendment being applicable in relation to assessment year 2021-22 and subsequent years. Accordingly, considering the factual backdrop of the present case and considering the amendments in Section 36(1)(va) as well as Section 43B carried out by Finance Act, 2021 and Memorandum explaining the provisions in Finance Bill, 2021 we hold that the impugned disallowance is not sustainable and is directed to be deleted. The appeal of the assessee is allowed. Said order was pronounced in the presence of the parties via Webex.” (emphasis supplied) 5. Similar view has also been taken in order dated 02.11.2021 in the case of M/s Czar Faucets Limited Chandigarh Vs DCIT, Bangalore in ITA 255/CHD/2021; in order dated 16.11.2021 in the case of Pooja Sarees, Ambala City in ITA No. 184/CHD/2021 and in order dated 16.11.2021 in the case of M/s A.K. Creative Outsourcing Services Pvt. Ltd., Baddi in ITA No. 252/CHD/2021. The specific reasoning summing up the legal position on similar facts is extracted hereunder from M/s A.K. Creative Outsourcing Services Pvt. Ltd.: “5. We have heard the submissions and perused the material available on record. Considering the issue, it is seen that it is no longer res-integra. The controversy whether the Amendments carried out by the Finance Act, 2021 in Section 36(l)(va) and u/s 43B of the Act were prospective in nature or retrospective, hence clarificatory in nature have been put to rest by consistent orders of the different Benches of the ITAT namely order dated 03.08.2021 in Insta Exhibitions Pvt. Ltd. Vs Addl. CIT, New Delhi in ITA No. 6941/Del/2017 of the Delhi Benches; order dated 01.07.2021 of Hyderabad Benches in M/s Crescent Roadways Pvt. Ltd. V Dy. CIT, Hyderabad in ITA No. 1952/Hyd./2018, order dated 27.08.2021 in the case of M/s Jupiter Aqua Lines Pvt. Ltd. Vs DCIT ITA 83/CHD/2021 and order dated 04.10.2021 in the case of Ajay Piplani Vs Assistant Director of Income Tax, CPC, Bengaluru in ITA No. 114/CHD/2021 of the ITAT Chandigarh Benches. Reference may also be made to various other orders of the Chandigarh Benches in ITA 250/CHD/2021 in the case of Shri Sukhdev Singh, Mohali and ITA 255/CHD/2021 in the case of M/s CZAR FAUCETS Ltd. Chandigarh wherein consistently following the decisions of the jurisdictional High Court in the case of CIT Vs Nuchem Ltd (ITA No. 323 of 2009) and CIT Vs Hemla Embroidery Mills Pvt. Ltd.(2014) 366 ITR 167, the Tribunal has consistently allowed similar claims of the assessee holding that the A mendments effected by the Finance Act 2021 to section 36(l)(va) and u/s 43B of the income Tax Act are not clarificatory in nature and they do not have retrospective effect and are applicable prospectively. Reading from the Notes on Clauses at the time of introduction of the Finance Act, 2021, it has been held that the amendment being applicable in relation to assessment year 2021-22 and subsequent years. Accordingly, considering the factual backdrop of the present case and considering the amendments in Section 36(1)(va) as well as Section 43B carried out by Finance Act, 2021 and Memorandum explaining the provisions in Finance Bill, 2021 we hold that the impugned disallowance is not sustainable. Hence, the addition is directed to be deleted as the amount stood deposited by the due date as held in Section 139(1) of the Act. Hence, ITA 5 /CHD/2022 A.Y. 2017-18 Page 8 of 11 within time. The appeal of the assessee is allowed. Said order was pronounced in the presence of the parties via Webex.” (emphasis supplied) 6 . Accordingly, on account of the aforementioned reasoning, we hold that the disallowance of Rs. 5,24,104/- sustained in the present appeal by the CIT(A) qua the employees’ contribution despite late payment qua the specific Act cannot be made. Admittedly, in the facts of the present case the payment has been made well within the time line as set out under the Income Tax Act u/s 139(1) of the Income Tax Act. Thus, admittedly the return of income was filed well within time after making the specific payments. The position of law that the Amendments carried out by the Finance Act, 2021 are prospective in nature and not declaratory stand well settled. The disallowance, accordingly, cannot be sustained. 7. Before parting, it is necessary to refer to the decision of the jurisdictional High Court referred to by the assessee in the specific ground No. 2 raised in the present appeal wherein the decision of the Hon'ble Himachal Pradesh High Court in the case of CIT vs Nipso Polyfabrika Ltd. [2013] 350 ITR 327 has been relied upon. The said decision, it is seen, specifically deals with the employees’ contribution. Their Lordships relying upon decision of the Apex Court in the case of CIT Vs Alom Extrusions Ltd. (2009) 319 ITR 306 (which was in the context of employers’ contribution) referring to the decision of the Hon'ble Delhi High Court in the case of CIT Vs Aimil Ltd. (2010) 321 ITR 508 took specific cognizance of the fact that this decision pertained to the employee’s contribution wherein again a reference had been made to the decision of the Apex Court in the case of CIT Vs Vinay Cement 313 ITR 1. Considering the reasoning in these decisions, Their Lordships in the case of Nipso Polyfabriks Ltd. (supra) consciously followed the view taken by the Hon'ble Delhi High Court in Aimil’s case and concluded that the view expressed by the Hon'ble Kerala High Court in CIT Vs Commonwealth Trust Ltd. (2004) 269 ITR 290 was not being followed as it was considered to be “no longer good law in view of the judgement of the Apex Court in Alom Extrusions Ltd.” Accordingly, reliance placed by the ld. AR on the decision of the jurisdictional High Court qua the employee’s contribution stands addressed in favour of the assessee. However, the said decision has not taken into consideration the change proposed by the Amendments carried out by Finance Act, 2021 which we have addressed at length in the earlier part of this order. This issue stands covered by various decisions of the ITAT which stand addressed. Accordingly, the ground of the assessee is allowed. Said order was pronounced in the presence of the parties via Webex.” 6.1 Accordingly, we told that on the legal issue the relief is allowable on ground Nos. 3 and 4 hence is in assessee’s favour. 7. It is seen that the facts relatable to ground No. 4 are found discussed in page 26 and 27 of the impugned. On a perusal of the same it is seen that the issue has been remanded back to the Assessing Officer by the Ld. CIT(A) for verification on facts. We find that such a direction does not have any ITA 5 /CHD/2022 A.Y. 2017-18 Page 9 of 11 statutory support. Section 251(1)(a) clearly circumscribes the powers of the Commissioner Appeals. It specifically lays down unambiguously that in an appeal against an order of assessment, the Commissioner Appeals may confirm, reduce, enhance or annul the assessment. It is not in dispute that the power to set aside the issue back to the Assessing Officer is no longer vested with the said authority. According, we set aside the finding. On a consideration of the facts on record and in the light of the submissions of the parties before the Bench. we substitute the said direction with our direction and deem it appropriate to direct the Assessing Officer to verify the facts and allow necessary relief in accordance with law set out herein above. 8. The facts relatable to the issue raised in ground No. 5 in the present appeal is found discussed in page 27 in paragraph 4.4 of the impugned order. For ready reference the relevant fact are extracted hereunder:- “ 4 . 4 G r o u n d n o . 4 - D i s a l l o w a n c e o f R s . 1 0 , 9 0 , 3 0 6 / - T h e f o u r t h g r o u n d o f a p p e a l r e l a t e s t o d i s a l l o w a n c e o f R s . 1 0 , 9 0 , 3 0 6 / - u / s 3 6 ( 1 ) ( i i ) o n a c c o u n t o f b o n u s o r c om m i s s i o n p a i d t o e m p l o y e e s f o r s e r v i c e s r e n d e r e d w h e t h e r s u c h s u m w as o t h e r w i s e p a y a b l e a s p r o f i t s o r d i v i d e n d s . T h e a p p e l l a n t h a s s t a t e d t h a t t h i s w a s m e n t i o n e d i n t h e t a x a u d i t r e p o r t d u e t o a c l e ri c a l m i s t a k e o n t h e p a r t o f t h e C A . I t i s a l s o c l a i m e d t h e r e v i s e d a u d i t r e p o r t w a s f i l e d a r e c t i f i c a t i o n a p p l i c a t i o n u / s 1 5 4 s e e k i n g wi t h d r a w a l o f t h e a d j u s t m e n t s m a d e . H o w e v e r , t h e l e a r n e d A O - C P C c o u l d n o t a p p r e c i a t e t h e s u b m i s s i o n s a n d r e j e c t e d t h e a p p l i c at i o n . T h e C I T ( A ) i s n o t i n a p o s i t i o n t o f u l l y e x a m i n e t h e r e v i s e d au d i t r e p o r t a n d i t s ITA 5 /CHD/2022 A.Y. 2017-18 Page 10 of 11 c o n t e n t s . I n t h e c i r c u m s t a n c e s , t h i s m a t t e r i s s e t -a s i d e t o l e a r n e d A O - C P C f o r r e - e x a m i n a t i o n a n d p r o p e r d i s p o s a l a s p er l a w . ” 8.1 On a consideration of the aforesaid finding in the light of the statutory provision as considered while addressing ground No. 4 the order is set aside. Considering the facts in the light of the submissions of the parties before the Bench we deem it appropriate herein also to restore the issue back to the file of the Assessing Officer for verification on facts and allow necessary relief in accordance with law. 9. Ground No. 1 raised in the present appeal is general in nature and requires no adjudication. In the result, the appeal of the assessee is partly allowed for statistical purposes. The said order was pronounced at the time of hearing in the open court. Order pronounced on 28 th Apri,2022. Sd/- Sd/- (VIKRAM SINGH YADAV) (DIVA SINGH) लेखा लेखालेखा लेखा सद瀡य सद瀡यसद瀡य सद瀡य/ Accountant Member 瀈याियक 瀈याियक瀈याियक 瀈याियक सद瀡य सद瀡यसद瀡य सद瀡य/ Judicial Member “Poonam/Santosh” आदेश क琉 灹ितिलिप अ灡ेिषत/ Copy of the order forwarded to : 1. अपीलाथ牸/ The Appellant 2. 灹瀄यथ牸/ The Respondent 3. आयकर आयु猴/ CIT 4. आयकर आयु猴 (अपील)/ The CIT(A) 5. िवभागीय 灹ितिनिध, आयकर अपीलीय आिधकरण, च瀃डीगढ़/ DR, ITAT, CHANDIGARH 6. गाड榁 फाईल/ Guard File आदेशानुसार/ By order, सहायक पंजीकार/ Assistant Registrar ITA 5 /CHD/2022 A.Y. 2017-18 Page 11 of 11 1. Draft dictated 21.03.2022 Sr.PS 2. Draft first placed before author 29.04.2022 3. Approved draft comes to Sr.PS/PS 4 Final draft placed before author 5. Order signed and pronounced on 6 File sent to the Bench Clerk Sr.PS 7. Date on which file goes to the AR