ACIT, Jaipur V. M/S SUPERSONIC TURNER PVT. LTD., Jaipur

ITA 853/JPR/2012

• Counselvise Citation: 85323114 RSA 2012
• Duration Of Justice: 2 year(s) 10 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-09-2015
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 07-11-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PRATIMA KAUSHIK
• Keywords: Corroborative evidences
• Section: 43B; 143(3); 142(1); 139

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH VH-VKJ-EHUK] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM VK;DJ VIHY LA- @ ITA NO. 853/JP/2012 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2009-10 ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-4, JAIPUR. CUKE VS. M/S SUPERSONIC TURNER PVT. LTD., F-393-A, ROAD NO. 9F-2, VK AREA, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO.: AADCS 5144 H VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT IZR;K{KSI.K @ C.O. NO. 76/JP/2012 (ARISING OUT OF VK;DJ VIHY LA-@ ITA NO. 853/JP/2012) FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2009-10 M/S SUPERSONIC TURNER PVT. LTD., F-393-A, ROAD NO. 9F-2, VK AREA, JAIPUR. CUKE VS. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-4, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA- @ PAN/GIR NO.: AADCS 5144 H IZR;K{KSID @ OBJECTOR IZR;FKHZ @ RESPONDENT JKTLO DH VKSJ LS @ REVENUE BY : SMT. PRATIMA KAUSHIK (CIT) FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI ABHINAV MEHROTRA (ADV) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 16/06/2015 MN~?KKS'K .KK DH RKJH[ K @ DATE OF PRONOUNCEMENT : 10/09/2015 ITA 853/JP/2012 & C.O. 76/JP/2012_ ACIT VS M/S SUPERSONIC TURNER PVT. LTD. 2 VKNS'K @ ORDER PER: T.R. MEENA, A.M. THE APPEAL BY REVENUE AND CROSS OBJECTION BY ASSESS EE ARISE FROM THE ORDER DATED 06/08/2012 PASSED BY THE LEARN ED CIT (A)-II, JAIPUR FOR A.Y. 2009-10. 2. THE GROUND OF REVENUES APPEAL AND GROUND OF THE ASSESSEES C.O. ARE AS UNDER:- GROUNDS IN REVENUES APPEAL. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(APPEALS) HAS ERRED IN:- 1. RESTRICTING THE ADDITION TO RS. 24,752/- AGAINST TH E ADDITION OF RS. 27,27,293/- MADE BY THE A.O. ON ACC OUNT OF DIFFERENCE IN JOB WORK RECEIPTS. 2. DELETING THE ADDITION OF RS. 1,15,59,814/- MADE BY THE A.O. ON ACCOUNT OF CONCEALED SALE OF SCRAP. 3. DELETING THE ADDITION OF RS. 2,72,84,704/- MADE BY THE A.O. ON ACCOUNT OF CONCEALED SALES. GROUND IN ASSESSEES C.O. 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD. CIT(A) GROSSLY ERRED IN CONFIRMING THE ADDITION OF INCOME OF RS. 22515/- ON ACCOUNT OF INTEREST ON FDR. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD. C IT(A) GROSSLY ERRED IN CONFIRMING THE ADDITION OF RS. 247 57/- ON ACCOUNT OF JOB WORK RECEIPTS. ITA 853/JP/2012 & C.O. 76/JP/2012_ ACIT VS M/S SUPERSONIC TURNER PVT. LTD. 3 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD. C IT(A) GROSSLY ERRED IN CONFIRMING THE ADDITION OF RS. 1,37,927/- FOR LATE DEPOSITING ESI & PF DUES. 2.1 GROUNDS NO. 1 AND 2 OF THE ASSESSEES C.O. ARE NOT PRESSED, THEREFORE, THE SAME ARE DISMISSED AS NOT PRESSED. 3. FIRST GROUND OF REVENUES APPEAL IS AGAINST REST RICTING THE ADDITION TO RS. 24,752/- AGAINST THE ADDITION OF RS. 27,27,2 93/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF DIFFERENCE IN JOB WO RK RECEIPTS. 3.1 THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAS DERIVED INCOME FROM MANUFACTURING AND JOB WORK OF BEARING RI NGS. THE ASSESSEE FILED E-RETURN OF INCOME DECLARING TOTAL I NCOME OF RS. 2,15,45,510/- ON 30/09/2009. THE CASE WAS SCRUTINIZED U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED AS TH E ACT). A SHOW CAUSE NOTICE ALONGWITH NOTICE U/S 142(1) DATED 21/12 /2011 WAS ISSUED TO THE ASSESSEE IN RESPECT OF DIFFERENCE IN JOB WORK RECEIPTS AMOUNTING TO RS. 27,27,293/-. 3.2 THE LD ASSESSING OFFICER OBSERVED THAT FOR JOB RECEIPTS IN CASE OF M/S FAG BEARING INDIA LTD., IN COMPARISON TO STATEM ENT APPEARING 26AS, THE ASSESSEE HAS DECLARED THE LESS AMOUNT OF RECEIP T OF RS. ITA 853/JP/2012 & C.O. 76/JP/2012_ ACIT VS M/S SUPERSONIC TURNER PVT. LTD. 4 19,09,091.00 AND ACCORDINGLY THE SAME AMOUNT IS ADD ED BACK IN THE INCOME OF THE ASSESSEE. IN CASE OF TATA STEEL, THE ASSESSEE SUBMITTED BEFOR E THE ASSESSING OFFICER THAT THE COMPANY HAS SOLD GOODS T O TATA STEEL AND IN RESPECT OF THAT SOME DEBIT NOTES, (SHORTAGE AND REJ ECTIONS) IS WORKED OUT WHEREAS THEY RELATES TO SALE BUT ULTIMATE EFFEC T OF THAT WOULD BE NIL. AS PER ASSESSING OFFICER, THE ASSESSEE HAS NOT BEEN FILED ANY SUPPORTING EVIDENCE WHICH PROVE THE ASSESSEES SUBMI SSION THEREFORE, IT IS CLEAR THAT THE ASSESSEE COMPANY HAS CONCEALED TH E RECEIPTS OF RS. 7,87,065 AND THE SAME IS ADDED BACK IN THE INCOME O F THE ASSESSEE. IN CASE OF SKF, THE LD ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAS DECLARED THE LESS RECEIPT OF RS. 31,13 7/- AND HE HAS NOT BEEN FILED ANY EXPLANATION THEREFORE THE SAID AMOUN T IS ADDED BACK IN THE INCOME OF THE ASSESSEE. IN LIGHT OF ABOVE FINDINGS/OBSERVATIONS, THE LD AS SESSING OFFICER HELD THAT THE ASSESSEE HAS CONCEALED THE RECEIPT OF JOB WORK OF RS. 27,27,293/- AND THE SAME IS ADDED BACK IN THE INCOM E OF THE ASSESSEE. 4. IN FIRST APPEAL, THE LD CIT(A) HAS PARTLY ALLOWED THE APPEAL ON THIS GROUND AND RESTRICTED THE ADDITION ON ACCOUNT OF DI FFERENCE IN JOB WORK ITA 853/JP/2012 & C.O. 76/JP/2012_ ACIT VS M/S SUPERSONIC TURNER PVT. LTD. 5 RECEIPTS OF RS. 24,752/- INSTEAD OF RS. 27,27,293/- MADE BY THE ASSESSING OFFICER. THE APPELLANT COMPANY HAD SUBMIT TED A RECONCILIATION STATEMENT, WHICH HAS BEEN REPRODUCED AS UNDER:- M/S FAG BEARING INDIA LTD. S. NO. PARTICULARS AMOUNT (IN RS.) 1. RECEIPTS AS PER FORM NO. 26AS 2,31,75,057/- 2. LESS: BILLS PERTAINING TO PREVIOUS YEAR (F.Y. 2007-08) (BOOKED BY THE PRINCIPAL COMPANY DURING THE F.Y. 2008-09, HENCE, APPEARING IN FORM NO. 26AS OF CURRENT YEAR) 46,99,182/- 3. TOTAL 2,84,75,875/- 4. ADD: BILLS OF CURRENT YEAR BUT NOT ACCOUNTED FOR BY THE DEDUCTOR, THEREFORE, NOT APPEARING IN 26AS (BOOKED BY THE PRINCIPAL COMPANY DURING THE F.Y. 2009-10 HENCE, NOT APPEARING IN FORM NO. 26AS OF CURRENT YEAR) 11,97,130/- 5. TOTAL 2,96,73,005/- 6. LESS: REJECTIONS/DEBIT NOTES 18,89,493/- 7. TOTAL RESIDUAL JOB WORK INCOME OF THE YEAR AS PER FORM NO. 26AS 2,77,83,512/- 8. JOB WORK INCOME AS PER PROFIT AND LOSS ACCOUNT 2,77,63,915/- 9. DIFFERENCE, IF ANY (7-8) 19,597/- M/S TATA STEEL LIMITED S. NO. PARTICULARS AMOUNT (IN RS.) 1. RECEIPTS AS PER FORM NO. 26AS 14,24,097/- 2. LESS: BILLS PERTAINING TO PREVIOUS YEAR (F.Y. 2007-08) (BOOKED BY THE PRINCIPAL COMPANY DURING THE F.Y. 2008-09, HENCE, APPEARING IN FORM NO. 26AS OF CURRENT YEAR) 1,78,804/- ITA 853/JP/2012 & C.O. 76/JP/2012_ ACIT VS M/S SUPERSONIC TURNER PVT. LTD. 6 3. TOTAL 12,45,293/- 4. ADD: BILLS OF CURRENT YEAR BUT NOT ACCOUNTED FOR BY THE DEDUCTOR, THEREFORE, NOT APPEARING IN 26AS 78,775/- 5. TOTAL 13,24,068/- 6. LESS: REJECTIONS/DEBIT NOTES 6,81,881/- 7. TOTAL RESIDUAL JOB WORK INCOME OF THE YEAR AS PER FORM NO. 26AS 6,42,187/- 8. JOB WORK INCOME AS PER BOOK ACCOUNT 6,37,032/- 9. DIFFERENCE, IF ANY (7-8) 5,155/- M/S SKF INDIA LIMITED S. NO. PARTICULARS AMOUNT (IN RS.) 1. RECEIPTS AS PER FORM NO. 26AS 3,96,000/- 2. LESS: BILLS PERTAINING TO PREVIOUS YEAR (F.Y. 2007-08) (BOOKED BY THE PRINCIPAL COMPANY DURING THE F.Y. 2008-09, HENCE, APPEARING IN FORM NO. 26AS OF CURRENT YEAR) 31,137/- 3. TOTAL 3,64,863/- 4. ADD: BILLS OF CURRENT YEAR BUT NOT ACCOUNTED FOR BY THE DEDUCTOR, THEREFORE, NOT APPEARING IN 26AS NIL 5. TOTAL 3,64,863/- 6. LESS: REJECTIONS/DEBIT NOTES NIL 7. TOTAL RESIDUAL JOB WORK INCOME OF THE YEAR AS PER FORM NO. 26AS 3,64,863/- 8. JOB WORK INCOME AS PER PROFIT & LOSS ACCOUNT 3,64,863/- 9. DIFFERENCE, IF ANY (7-8) NIL 4.1 THE LD CIT(A) HELD THAT THE ASSESSING OFFICER WITH OUT ANY BASIS REJECTED THE SUBMISSIONS OF THE APPELLANT COMPANY A ND AT THE SAME TIME, HE IGNORED THE ENTRIES IN THE BOOKS OF ACCOUN T AND COPIES OF DEBIT ITA 853/JP/2012 & C.O. 76/JP/2012_ ACIT VS M/S SUPERSONIC TURNER PVT. LTD. 7 NOTES/REJECTIONS. IN THE CASE OF M/S FAG BEARING IN DIA LTD., THE ASSESSING OFFICER ACCEPTED THE CONTENTION OF THE AP PELLANT COMPANY THAT JOB WORK RECEIPTS OF RS. 46,99,182/- APPEARING IN FORM NO. 26AS WERE ACCOUNTED IN THE BOOKS OF ACCOUNT FOR F.Y. 2007 -08, HOWEVER, SIMILAR CONTENTION FOR JOB WORK RECEIPTS OF RS. 31,1 37/- WAS REJECTED BY THE A.O. IN THE CASE OF M/S SKF INDIA LTD. SIMILARL Y IN THE CASE OF M/S FAG BEARING INDIA LTD., THE ASSESSING OFFICER ACCEP TED THE CONTENTION OF THE APPELLANT COMPANY THAT JOB WORK RECEIPTS OF RS. 11,97,130/- DECLARED BY THE APPELLANT COMPANY IN THE BOOKS OF A CCOUNT FOR THE CURRENT YEAR DID NOT APPEAR IN FORM 26-AS, HOWEVER, HE DID NOT ACCEPT THE DEBIT NOTES AND REJECTIONS OF RS. 18,89,493/-. SIMILARLY IN THE CASE OF M/S TATA STEEL LTD., THE A.O. DID NOT ACCEPT THE CONTENTION OF THE APPELLANT COMPANY THAT JOB WORK RECEIPTS OF RS. 78,7 75/-DECLARED BY THE APPELLANT COMPANY IN THE BOOKS OF ACCOUNT FOR T HE CURRENT YEAR DID NOT APPEAR IN FORM 26-AS AND HE ALSO DID NOT ACCEPT THE DEBIT NOTES AND REJECTIONS OF RS. 6,81,881/-. THE LD CIT(A) FURT HER HELD THAT THE APPELLANT HAS SATISFACTORILY EXPLAINED THE DIFFEREN CE IN JOB WORK RECEIPTS WITH THE NECESSARY DOCUMENTARY EVIDENCES. HOWEVER, T HERE WAS A MINOR DIFFERENCE OF RS. 19,597/- IN THE CASE OF M/S FAG BEARING INDIA ITA 853/JP/2012 & C.O. 76/JP/2012_ ACIT VS M/S SUPERSONIC TURNER PVT. LTD. 8 LTD. AND RS. 5,155/- IN THE CASE OF M/S TATA STEEL LTD., WHICH REMAINED UN-RECONCILED. ACCORDINGLY, HE DIRECTED THE ASSESSI NG OFFICER TO RESTRICT THE ADDITION ON ACCOUNT OF DIFFERENCE IN JOB WORK RE CEIPTS TO RS. 24,752/- INSTEAD OF RS. 27,27,293/-. 5. NOW THE REVENUE IS IN APPEAL BEFORE US. THE LD DR HAS VEHEMENTLY SUPPORTED THE ORDER OF THE ASSESSING OFFICER. AT THE OUTSET, THE AR OF THE ASSESSEE HAS SUPPORTED THE ORDER OF THE LD CIT(A). 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS NOT ED THAT THE ASSESSING OFFICER HAD MADE ADDITION OF RS. 27,27,293/- ON ACC OUNT OF DIFFERENCE IN JOB RECEIPTS AFTER MAKING COMPARISON BETWEEN FORM NO . 26AS AND THE AMOUNT REPORTED AS PER P&L ACCOUNT. IT IS NOTED THA T THE DIFFERENCE AS PER FORM NO. 26AS AND THE AMOUNT REFLECTED IN P&L A CCOUNT IS ON ACCOUNT OF BILLS PERTAINING TO PREVIOUS YEAR, WHICH HAVE BEEN BOOKED IN THE CURRENT YEAR BY THE PRINCIPAL COMPANY. SECONDLY , THE BILLS OF CURRENT YEAR, WHICH HAVE BEEN BOOKED IN THE SUBSEQUENT FINAN CIAL YEAR BY THE PRINCIPAL COMPANY AND THIRDLY REJECTION STOCK/DEBIT NOTES, WHICH HAVE BEEN RECEIVED BY THE APPELLANT DURING THE YEAR. IT IS ALSO NOTED THAT THE ITA 853/JP/2012 & C.O. 76/JP/2012_ ACIT VS M/S SUPERSONIC TURNER PVT. LTD. 9 ASSESSEE HAS FILED DETAILED RECONCILIATION STATEMEN T ALONGWITH SUPPORTING DOCUMENTATION, WHICH HAVE BEEN DULY CONS IDERED AND EXAMINED IN DETAIL BY THE LD CIT(A). 6.1 IN HIS ORDER, THE LD CIT(A) HAS HELD THAT THE D IFFERENCE WAS WORKED OUT BY THE A.O. BY COMPARING THE FORM NO. 26- AS (TAX CREDIT STATEMENT) WITH THE JOB WORK RECEIPTS DECLARED IN THE BOOKS OF ACCOUNT. HOWEVER, MANY A TIMES, THE DEDUCTOR EITHER DID NOT D EDUCT THE TAX OR ACCOUNTED FOR THE SAME IN THE SUBSEQUENT YEAR WHEN T HE GOODS WERE LIFTED FROM THE PREMISES OF THE APPELLANT COMPANY. IT WAS NOT IN DISPUTE THAT THE APPELLANT COMPANY WAS FOLLOWING MERCANTILE S YSTEM OF ACCOUNTING AND JOB RECEIPTS WERE ACCOUNTED FOR IN TH E BOOKS OF ACCOUNT ON ACCRUAL BASIS. THE APPELLANT COMPANY THEREFORE D ECLARED THE JOB RECEIPTS IN THE YEAR OF BILLING HOWEVER THE DEDUCTOR /PRINCIPAL COMPANY ACCOUNTED FOR PART OF JOB RECEIPTS IN THE SUBSEQUEN T YEAR WHEN THE GOODS WERE REMOVED FROM THE PREMISES OF THE APPELLAN T COMPANY. THE MERCANTILE SYSTEM OF ACCOUNTING WAS CONSISTENTLY FOL LOWED BY THE APPELLANT COMPANY SINCE LAST MANY YEARS AND IT WAS C LEARLY DISCLOSED IN THE AUDITED FINANCIAL STATEMENTS BY THE AUDITORS IN SCHEDULED 16, SUB- POINT (A)(1) OF THE BALANCE SHEET. THIS DISCLOSURE WA S STRICTLY IN ITA 853/JP/2012 & C.O. 76/JP/2012_ ACIT VS M/S SUPERSONIC TURNER PVT. LTD. 10 CONFORMITY WITH THE APPLICABLE AS-1 ISSUED BY ICAI A ND GAAP ALSO. MANY A TIMES, THE JOB WORK RECEIPTS ACCOUNTED BY THE APPELLANT IN ONE YEAR WERE ACCOUNTED FOR IN THE SUBSEQUENT YEAR BY TH E PRINCIPAL COMPANY. AS A RESULT, TDS WAS ALSO DEDUCTED BY THE P RINCIPAL COMPANY IN THAT YEAR AND CREDIT FOR THE SAME APPEARED IN FO RM NO. 26-AS. 6.2 WE HAVE GIVEN OUT CONSIDERED THOUGHT AND AGREE WITH THE REASONING OF LD. CIT(A) AND WE FIND NO INFIRMITY IN THE ORDER OF THE LD CIT(A). HENCE WE UPHOLD THE ORDER OF THE LD CIT(A) AND DISMISS THE GROUND NO. 1 OF THE REVENUES APPEAL. 7. REGARDING GROUND NO. 2, THE DEPARTMENT HAS CHALL ENGED THE ACTION OF THE LD CIT(A) IN DELETING THE ADDITION OF RS. 1,15,59,814/- ON ACCOUNT OF CONCEALED SALE OF SCRAP ON THE BASIS OF ER-1 RETURN FILED WITH THE EXCISE DEPARTMENT. THE APPELLANT HAD SUBMITTED THAT THE SCRAP GENERATED AT VENDORS PREMISES WAS SOLD BY THEM AS I T WAS THEIR PROPERTY IN TERMS OF THE AGREEMENT WHICH HAS BEEN EN TERED INTO WITH THE APPELLANT. AT THE SAME TIME UNDER THE RELEVANT PROVISIONS OF THE EXCISE LAW, IT WAS FOR THE APPELLANT COMPANY TO PAY T HE EXCISE DUTY ON THE SAID SCRAP WHICH HAS BEEN GENERATED AT THE VENDO RS PREMISES. IT ITA 853/JP/2012 & C.O. 76/JP/2012_ ACIT VS M/S SUPERSONIC TURNER PVT. LTD. 11 WAS ALSO SUBMITTED BY THE APPELLANT THAT THE SCRAP H AS NOT BEEN RECEIVED BACK PHYSICALLY IN THE FACTORY PREMISES OF THE APPELLANT. 7.1 AS PER THE LD CIT(A), THE APPELLANT COMPANY HAD SATISFACTORILY EXPLAINED THAT IT HAD PAID EXCISE DUTY ON THE NOTIO NAL VALUE OF SCRAP SHOWN IN THE ER-1 RETURN. HOWEVER, THE ASSESSING OFFI CER WITHOUT CAUSING ANY ENQUIRY BRUSHED ASIDE THE SAME. THE EXCI SE DUTY WAS LEVIED ON THE GROSS VALUE OF GOODS WHICH INCLUDED TH E VALUE OF SCRAP GENERATED AT THE PREMISES OF VENDOR IRRESPECTIVE OF THE FACT THAT THE SCRAP SO GENERATED WAS RETURNED OR RETAINED BY THE V ENDOR TO CARRY OUT THE JOB WORK AS PER PREVAILING MARKET PRACTICE OF TH E INDUSTRY. THE APPELLANT COMPANY HAD MAINTAINED COMPLETE DETAILS O F ITS VENDORS ALONGWITH THE ADDRESSES AND PAN. THE ASSESSING OFFICE R COULD HAVE EXAMINED THE VENDORS WHO HAD NOT RETURNED THE SCRAP AFTER THE JOB WORK. HOWEVER, NOTHING OF THAT SORT WAS DONE BY THE AS SESSING OFFICER. FURTHER, THE LD CIT(A) HAS HELD THAT THE RATES OF J OB WORK WERE FINALIZED TAKING INTO CONSIDERATION THAT THIS SCRAP GENERATED FOR THE JOB WORK WAS TO BE RETAINED BY THE VENDORS. ACCORDINGLY, NO ADVE RSE INFERENCE COULD HAVE BEEN DRAWN AGAINST THE APPELLANT COMPANY MERELY ON SURMISES. THERE WAS NO REAL INCOME, WHICH COULD BE TAXED IN THE HANDS OF THE ITA 853/JP/2012 & C.O. 76/JP/2012_ ACIT VS M/S SUPERSONIC TURNER PVT. LTD. 12 APPELLANT ON ACCRUAL BASIS OR RECEIPT BASIS. IN VIE W OF THE ABOVE FACTS, THE LD CIT(A) DELETED THE ADDITION OF RS. 1,15,59,81 4/- MADE BY THE ASSESSING OFFICER. 7.2 THE LD SR. DR VEHEMENTLY SUPPORTED THE ORDER OF THE ASSESSING OFFICER AND THE LD AR FOR THE ASSESSEE REITERATED T HE ARGUMENTS MADE BEFORE THE LD CIT(A) AND PRAYED TO UPHOLD THE ORDER OF THE LD CIT(A). 7.3 WE HAVE GIVEN A CAREFUL CONSIDERATION TO THE FA CTS AND THE ISSUE UNDER CONSIDERATION. IT IS UNDISPUTED FACT THAT THE SCRAP GENERATED OUT OF MANUFACTURING WAS RETAINED BY THE VENDORS AND NOT RETURNED BACK TO THE APPELLANT COMPANY. THE ASSESSEE COMPANY HAD PAID EXCISE DUTY ON NONRETURNABLE SCRAP RETAINED BY THE VENDORS BY TAKI NG ITS NOTIONAL VALUE OR ASSESSABLE VALUE BY THE EXCISE AUTHORITIES. ER-1 RETURN NOT ONLY INCLUDE THE GOODS SOLD BUT ALSO GOODS REMOVED OUT O F FACTOR. THEREFORE, IT IS BUT NATURAL TO HAVE DIFFERENCE BETWEEN SALE FI GURES REPORTED BY THE ASSESSEE AND FIGURES DISCLOSED IN ER-1 RETURN. THE L D CIT(A) HAS THOROUGHLY EXAMINED THIS ISSUE, WHICH HAS NOT BEEN CONTROVERTED BY THE LD SR.DR DURING THE HEARING. THE LD ASSESSING OFFICE R HAD NOT VERIFIED FROM THE BOOKS OF ACCOUNT OF THE VENDORS WHETHER SAM E SCRAP HAS BEEN DISCLOSED IN ITS SALE OR NOT. AS PER AGREEMENT MADE BETWEEN THE ITA 853/JP/2012 & C.O. 76/JP/2012_ ACIT VS M/S SUPERSONIC TURNER PVT. LTD. 13 APPELLANT AND THE VENDORS, THE SCRAP IS TO BE REMAI NED WITH THE VENDOR AND IT COULD NOT BE RETURNED BACK TO THE APPELLANT AS PER THE TERMS AND CONDITIONS OF JOB WORK CHARGES. THE VENDOR IS ALSO AS SESSED TO TAX AND BOTH THE PARTIES I.E. THE APPELLANT AS WELL AS THE V ENDOR ARE ALSO UNDER THE EXCISE NET. THUS, WE DO NOT FIND ANY REASON TO I NTERVENE IN THE ORDER OF THE LD CIT(A), ACCORDINGLY WE UPHOLD THE OR DER OF THE LD CIT(A). HENCE, THIS GROUND OF REVENUE IS DISMISSED. 8. IN THE THIRD GROUND OF THE REVENUES APPEAL, THE DEPARTMENT HAS CHALLENGED THE DELETION OF ADDITION OF RS. 2,72,84, 704/- ON ACCOUNT OF CONCEALED SALES BEING THE DIFFERENCE IN FIGURES OF SALE AS PER P&L ACCOUNT AND THAT DECLARED IN ER-1 FILED WITH THE EXC ISE DEPARTMENT. 8.1 THE LD ASSESSING OFFICER OBSERVED THAT THE ASSE SSEE HAD SHOWN LESSER SALE OF RS. 3,62,65,136/- BY COMPARING THE F IGURE WITH ER-1 RETURN. HE GAVE REASONABLE OPPORTUNITY OF BEING HEA RD TO THE ASSESSEE, WHICH WAS AVAILED BY IT VIDE ORDER DATED 22/12/2011. AFTER CONSIDERING THE ASSESSEES REPLY, THE LD ASSESSING OFFICER HELD THAT DEBIT NOTE FOR RS. 31,399/- WERE NOT PERTAINED AGAINST THE INVOICE ISSU ED DURING THE YEAR UNDER CONSIDERATION, THEREFORE, THE SAME ARE NOT DE DUCTABLE FROM THE SALES OF THE YEAR. WITH REGARD TO INTERSTATE 2% HAD BEEN CONSIDERED. ITA 853/JP/2012 & C.O. 76/JP/2012_ ACIT VS M/S SUPERSONIC TURNER PVT. LTD. 14 THE ASSESSING OFFICER HELD THAT SALES OF MACHINERY A ND PLANTS IS NOT DEDUCTABLE ON ACCOUNT OF SALES OF GOODS TO COMPARE THE SALES AS DECLARED IN ER-1. THE SALES NOT PERTAINING TO YEAR U NDER CONSIDERATION, ALSO NOT DEDUCTABLE IN THE SALES MADE DURING THE YE AR TO COMPARE THE SALES AS DECLARED IN ER-1. SIMILARLY WRITE OFF BALAN CE IS ALSO NOT DEDUCTABLE, THEREFORE, THE AMOUNT OF DEBIT NOTE ON ACCOUNT OF RATE DIFFERENCE IS NOT THE PART OF THE SALE OF ER-1 RETU RN. ACCORDINGLY, TOTAL AMOUNT OF RS. 1,08,32,435/- IS NOT DEDUCTABLE FROM ER-1 RETURN TO COMPARE THE SALE OF THE ASSESSEE AS DECLARED IN THE P&L ACCOUNT. 8.2 HE FURTHER HELD THAT IN EXPORT SALE, IT HAS BEE N HELD THAT EXPORT WAS MADE TO THE SISTER CONCERN OF THE SKF INDIA LIMI TED. M/S SKF INDIA LIMITED IS PRIME PARTY TO WHOM THE GROUP OF THE ASSE SSEE RECEIVED THE JOB WORK. THE ER-1 RETURN WAS TAKEN ON ITEMWISE AND NOT AS SUBMITTED BY THE ASSESSEE FOR ENHANCING THE RATE ON SUBSEQUEN TLY. THE WARE HOUSE AND OCEAN FREIGHT CHARGE AS CLAIMED BY THE AS SESSEE IS NOT ADMISSIBLE AS THESE EXPENSES ARE MADE OUTSIDE THE C OUNTRY, NO EVIDENCE REGARDING LIABILITY, JUSTIFICATION AND NO EVIDENCE THAT M/S SKF INDIA LTD HAS DEDUCTED THESE EXPENSES FROM THE SALE PROCEEDS. THEREFORE, AS PER ASSESSING OFFICER, THE AMOUNT TO R S. 1,64,20,870/- ITA 853/JP/2012 & C.O. 76/JP/2012_ ACIT VS M/S SUPERSONIC TURNER PVT. LTD. 15 WAS DECLARED LESS SALE ON ACCOUNT OF EXPORT SALE AS PER P&L ACCOUNT AS COMPARED TO THE ER-1 RETURN, THUS TOTAL ADDITION OF RS. 2,72,84,704/- WAS MADE BY THE ASSESSING OFFICER. 8.3 BEING AGGRIEVED BY THE ORDER OF THE ASSESSING O FFICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD CIT(A), WH O HAD ALLOWED THE APPEAL BY OBSERVING THAT THE APPELLANT COMPANY HAD SOLD MULTI SPLENDLE MACHINERY FOR 6.5 AND 13 LACS, HOWEVER, IT WAS WRONGLY ENTERED IN SALES INTERSTATE C-FORM INTEREST ACCOUNT @ 2%, WHICH HAS B EEN RECTIFIED BY THE ASSESSEE HIMSELF BY PASSING REVERSAL ENTRY. THE APPELLANT COMPANY, HOWEVER, RECEIVED MEMO FROM M/S SKF INDIA LIMITED FO R SHORT QUANTITY RECEIPT AGAINST DIFFERENT BILLS PERTAINING TO A.Y. 2007-08, 2008-09 AND 2009-10 FOR RS. 18,21,421/-. THE ASSESSEE PASSED REV ERSED ONLY TO THE TUNE OF RS. 3,34,997/- FOR A.Y. 2009-10 AND REDUCED FROM THE SALE. RATE DIFFERENCE BILL FOR HSS RATE DIFFERENCE TO M/S SKF INDIA LIMITED FOR RS. 2,16,703/-, WHICH WAS NOT ACCEPTED BY M/S SKF IN DIA LTD, WHICH WAS ALSO REDUCED FROM THE SALE. A FURTHER RATE DIFFE RENCE BILL OF RS. 42,32,857/- WAS SENT TO M/S SKF INDIA LTD., WHICH WAS NOT ACCEPTED BY IT, THE SAME WAS ALSO REDUCED FROM THE SALE BILL. AN OTHER PETTY RATE DIFFERENCE OF RS. 50,592/- RELATING TO A.Y. 2008-09 AND 2009-10 WAS ITA 853/JP/2012 & C.O. 76/JP/2012_ ACIT VS M/S SUPERSONIC TURNER PVT. LTD. 16 ALSO REDUCED. THE LIABILITY WAS UTILIZED DURING THE Y EAR UNDER CONSIDERATION, THEREFORE, THE SAME WAS CONSIDERED DU RING THE YEAR UNDER CONSIDERATION. THE LD CIT(A) FURTHER OBSERVED A S UNDER:- FURTHER THERE WERE PETTY DEBIT BALANCES IN THE ACCO UNT OF M/S SKF INDIA LIMITED, BANGALORE AGAINST VARIOUS BILLS FOR TOTAL AMOUNT OF RS. 1,68,823/-. THE A.O. DID NOT ACCEPT THE CLAIM O F RS. 1,68,823/- MADE BY THE APPELLANT COMPANY. SINCE THE APPELLANT COMPANY HAD RECEIVED LESSER AMOUNT AGAINST SOME BILLS THEREFORE IT HAD RIGHTLY REDUCED THE AMOUNT FROM ITS RECEIPTS. WITHOUT PREJU DICE TO THE ABOVE, THE AMOUNT COULD HAVE BEEN CLAIMED AS BAD DEBIT ALT ERNATIVELY. THE A.O. HAD DISALLOWED THE SAME FOR THE REASON THAT THE EXPENDITURE DID NOT RELATE TO THE YEAR UNDER CONSIDERATION. HOWEVER, THE EVENT OF MAKING THE ENTRY OR CRYSTALLIZATION OF LIABILITY FE LL DURING THE YEAR UNDER CONSIDERATION. SO, THE APPELLANT COMPANY HAD MADE T HE ENTRIES IN THE BOOKS OF ACCOUNT OF THE CURRENT YEAR. THE J.V. NO. 1 64 HAD BEEN PASSED BY THE APPELLANT COMPANY ON 31/03/2009 ON ACCOUNT O F SHORT RECEIPT OF GOODS BY M/S SKF INDIA LIMITED, BANGALORE. THE A.O. DID NOT ACCEPT THE ENTIRE AMOUNT OF RS. 14,46,542/- ON THE GROUND THAT CONCERNED INVOICES DID NOT PERTAIN TO THE YEAR UNDER CONSIDERATION. THI S WAS FACTUALLY INCORRECT AS OUT OF TOTAL AMOUNT OF RS. 14,46,542/- , THE MAJOR AMOUNT OF RS. 13,04,592/- RELATED TO THE YEAR UNDER CONSID ERATION AND QUANTIFICATION AND CRYSTALLIZATION OF THE AMOUNTS R ELATING TO THE PAST YEARS HAPPENED IN THE YEAR UNDER CONSIDERATION. ALL THESE ENTRIES WERE PART OF RG-1 REGISTER. SIMILARLY THE J.V. NO. 232 H AD BEEN PASSED BY ITA 853/JP/2012 & C.O. 76/JP/2012_ ACIT VS M/S SUPERSONIC TURNER PVT. LTD. 17 THE APPELLANT COMPANY ON 31/03/2009 ON ACCOUNT OF S HORT RECEIPT OF GOODS BY M/S SKF INDIA LIMITED, BANGALORE. THE A.O. DID NOT ACCEPT THE ENTIRE AMOUNT OF RS. 2,07,574/- ON THE GROUND THAT CONCERNED INVOICES DID NOT PERTAIN TO THE YEAR UNDER CONSIDERATION. THI S WAS FACTUALLY INCORRECT AS OUT OF TOTAL AMOUNT OF RS. 2,07,574/-, THE MAJOR AMOUNT OF RS. 79,910/- RELATED TO THE YEAR UNDER CONSIDERATIO N AND QUANTIFICATION AND CRYSTALLIZATION OF THE AMOUNTS RELATING TO THE PAST YEARS HAPPENED IN THE YEAR UNDER CONSIDERATION. ALL THESE ENTRIES WERE PART OF RG-1 REGISTER. THE J.V. NO. 233 HAD BEEN PASSED BY THE AP PELLANT COMPANY ON 31/3/2009 ON ACCOUNT OF SHORT RECEIPT OF GOODS B Y M/S SKF INDIA LIMITED, BANGALORE. THE A.O. DID NOT ACCEPT THE ENTI RE AMOUNT OF RS. 22,24,347/- ON THE GROUND THAT CONCERNED INVOICES D ID NOT PERTAIN TO THE YEAR UNDER CONSIDERATION. THIS WAS FACTUALLY INCO RRECT AS THE TOTAL AMOUNT OF RS. 22,24,347/- RELATED TO THE YEAR UNDER CONSIDERATION AND QUANTIFICATION AND CRYSTALLIZATION OF THE AMOUNT HA PPENED IN THE YEAR UNDER CONSIDERATION. ALL THESE ENTRIES WERE PART OF RG-1 REGISTER. AS REGARD THE ADDITION OF RS. 1,64,20,870/- MADE ON AC COUNT OF EXPORT SALES, THE APPELLANT COMPANY HAD SATISFACTORILY EXP LAINED THAT A SUM OF RS. 39,18,068/- WAS REVERSED VIDE J.V. NO. 153 DATE D 31/03/2009 ON ACCOUNT OF REFUSAL OF RATE DIFFERENCE MADE VIDE BIL L NO. 3104 DATED 20/11/2008 OF THE BUYER. THIS ENTRY HAD BEEN ENTERED IN RG-1 REGISTER AT PAGE 343. THEREFORE, THE APPELLANT COMPANY HAD RI GHTLY REVERSED THE SALE. THE A.O. HAD MADE ADDITIONS OF RS. 56,57,279/- AND RS. 68,45,523/- ON THE ASSUMPTION THAT LIABILITY OF PAY MENT OF WHAREHOUSING OCEAN FREIGHT CHARGES WAS NOT OF THE ASS ESSEE BUT OF THE BUYER. HOWEVER, BOTH OF THESE REVERSALS HAD BEEN MAD E BY THE ITA 853/JP/2012 & C.O. 76/JP/2012_ ACIT VS M/S SUPERSONIC TURNER PVT. LTD. 18 APPELLANT COMPANY VIDE J.V. NO. 50 DATED 20/11/2008 AND JV NO. 169 DATED 31/03/2009 FOR RS. 56,57,279/- AND 68,45,523/ - RESPECTIVELY. THE A.O. ALLEGED THAT THE RECEIPT OF THE LESSER PAYMENT DID NOT JUSTIFY THE CLAIM OF THE ASSESSEE THAT THE ABOVE DEDUCTION WAS M ADE BY THE PARTY TO WHOM THE GOODS WERE EXPORTED. THE A.O. FURTHER HELD THAT THE ASSESSEE DID NOT FILE ANY CLAIM BEFORE THE BUYER FO R LESSER PAYMENT. THOUGH IT WAS THE LIABILITY OF THE ASSESSEE COMPANY T O PAY THE WAREHOUSING AND OCEAN FREIGHT CHARGES, IT HAD WRONGLY CHARGED THE SAME IN THE BILLS. SUBSEQUENTLY THE BUYER MADE THE INVOICE FOR THIS DIFFERENCE WHICH WAS RECEIVED BY THE APPELLANT COMPAN Y IN THE YEAR UNDER REFERENCE. FINALLY THE APPELLANT COMPANY HAD TO MAKE THE PAYMENTS TO THE BUYER M/S SKF LTD. ON 16/12/2008 FO R US $ 1,17,835/-. THE FACT OF PAYMENT MADE BY THE APPELLANT COMPANY IN ITSELF MADE THE DEDUCTION OF THE AMOUNT BEING ELIGIBLE TO IT. IT WAS OBVIOUS THAT THE ADDITION MADE BY A.O. WAS WITHOUT ANY MATERIAL AND AN Y BASIS. AS FAR AS THE QUESTION OF SOME PART RELATING TO PAST YEAR WAS CONCERNED, THE QUANTIFICATION AND CRYSTALLIZATION HAPPENED IN F.Y. 2008-09 ONLY WHEN THE APPELLANT COMPANY RECEIVED THE INVOICES OF DIFF ERENCE FROM THE BUYER COMPANY. 9. NOW THE REVENUE IS IN APPEAL BEFORE US. THE LD DR HAS VEHEMENTLY SUPPORTED THE ORDER OF THE ASSESSING OFF ICER. AT THE OUTSET, THE LD AR REITERATED THE ARGUMENTS MADE BEFORE THE LD CIT(A) AND ARGUED THAT THE LD CIT(A) VERIFIED ALL THE DEBIT NOT ES AND REVERSED ENTRY ITA 853/JP/2012 & C.O. 76/JP/2012_ ACIT VS M/S SUPERSONIC TURNER PVT. LTD. 19 PASSED BY THE ASSESSEE AT THE TIME OF HEARING. THERE FORE, THE SAME MAY BE ACCEPTED. 10. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. WHATE VER EVIDENCE FILED BY THE APPELLANT BEFORE THE LD CIT(A) WERE NOT FORWARD ED TO THE ASSESSING OFFICER DURING THE APPELLATE PROCEEDINGS. THE ASSESSEE FILED EXPLANATION WITH EVIDENCE BEFORE THE ASSESSING OFFIC ER ON THIS POINT BUT WHATEVER EVIDENCES NARRATED BY THE LD CIT(A) WERE NOT SUBMITTED BEFORE THE ASSESSING OFFICER. THE LD CIT(A) HAS COTER MINOUS POWER WITH THE ASSESSING OFFICER. HOWEVER, HE HAS ACCEPTED THE ASSESSEES EXPLANATION WITHOUT ANY VERIFICATION FROM THE THIRD PARTY, THEREFORE, IN THE INTEREST OF JUSTICE, THIS ISSUE REQUIRED TO BE DECIDED AFRESH BY THE ASSESSING OFFICER AFTER PROVIDING REASONABLE OPPORT UNITY OF BEING HEARD AND ASSESSEE ALSO DIRECTED TO COOPERATE WITH THE ASS ESSING OFFICER TO PRODUCE ALL THE EVIDENCES REQUIRED BY THE ASSESSING OFFICER. ACCORDINGLY, THIS ISSUE IS SET ASIDE TO THE ASSESSI NG OFFICER. 11. THE THIRD GROUND OF THE ASSESSEES C.O. IS AGAIN ST CONFIRMING THE ADDITION OF RS. 1,37,927/- FOR LATE DEPOSITING ESI AND PF DUES RECEIVED FROM THE EMPLOYEES. THE LD ASSESSING OFFICER OBSERVE D THAT DURING THE ITA 853/JP/2012 & C.O. 76/JP/2012_ ACIT VS M/S SUPERSONIC TURNER PVT. LTD. 20 COURSE OF ASSESSMENT, IT WAS OBSERVED THAT THE ASSES SEE HAD MADE LATE PAYMENT OF ESI IN ALL ITS UNITS, THE DETAILS OF WHIC H IS REPRODUCED AT PAGE NO. 11 TO 13 OF THE ASSESSMENT ORDER. AS PER SECTION 2(24)(X) READ WITH SECTION 36(VA), THE PAYMENTS OF ESI AND PF MADE LATE BY THE EMPLOYER ARE CONSIDERED AS HIS INCOME FOR THE RELEV ANT YEAR. THEREFORE, THE AMOUNT OF RS. 1,37,927/- DEPOSITED LATE OF ESI AND PF WERE ADDED TO THE INCOME OF THE ASSESSEE CONSIDERING AS HIS IN COME OF THE YEAR. 12. BEING AGGRIEVED BY THE ORDER OF THE ASSESSING O FFICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD CIT(A), WHO HAD CONFIRMED THE ADDITION BY OBSERVING THAT THE ASSESSING OFFICE R HAD MADE THE ADDITION U/S 36(1)(VA) READ WITH SECTION 2(24)(X) OF THE IT ACT. AS PER PROVISIONS OF SECTION 2(24)(X), ANY SUM RECEIVED BY THE ASSESSEE FROM HIS EMPLOYEES AS CONTRIBUTION TO ANY PROVIDENT FUND OR SUPERANNUATION FUND OR ANY FUND SET UP UNDER THE PROVISIONS OF EMP LOYEES STATE INSURANCE ACT OR ANY OTHER FUND, FOR THE WELFARE OF SUCH EMPLOYEES IS TO BE INCLUDED IN THE INCOME OF THE ASSESSEE. FURTH ER, AS PER PROVISIONS OF SECTION 36(1)(VA) OF THE INCOME TAX ACT, ANY SUM RECEIVED BY THE ASSESSEE FROM ANY OF HIS EMPLOYEES TO WHICH THE PROV ISIONS OF SECTION 2(24)(X) APPLY, SHALL BE DEDUCTED AS EXPENDITURE, I F SUCH SUM IS ITA 853/JP/2012 & C.O. 76/JP/2012_ ACIT VS M/S SUPERSONIC TURNER PVT. LTD. 21 CREDITED BY THE ASSESSEE TO THE EMPLOYEES ACCOUNT IN THE RELEVANT FUND OR FUNDS ON OR BEFORE THE DUE DATE. THE DUE DATE AS DEFINED IN THE EXPLANATION GIVEN UNDER SECTION 36(1)(VA), MEANS TH E DATE BY WHICH THE ASSESSEE IS REQUIRED AS AN EMPLOYER TO CREDIT A N EMPLOYEES CONTRIBUTION TO THE EMPLOYEES ACCOUNT IN THE RELEV ANT FUND UNDER ANY ACT, RULE, ORDER OR NOTIFICATION ISSUED THERE UNDER OR UNDER ANY STANDING ORDER, AWARD, CONTRACT OF SERVICE OR OTHERWISE. ADMI TTEDLY, ABOVE MENTIONED PAYMENT OF RS. 1,37,927/- ON ACCOUNT OF E MPLOYEES CONTRIBUTION TOWARDS ESI/PF HAD BEEN PAID BEYOND THE DUE DATE. THEREFORE, THE ASSESSING OFFICER HAD RIGHTLY DISALLO WED THE SAME U/S 36(1)(VA). THE PROVISIONS OF SECTION 43B(B) ARE APPL ICABLE ONLY IN RESPECT OF EMPLOYERS CONTRIBUTION TO PF OR ESI AND NOT TO THE EMPLOYEES CONTRIBUTION. THIS VIEW IS SUPPORTED BY TH E DECISION OF HONBLE PUNE TRIBUNAL IN THE CASE OF INDIAN CARD CL OTHING COMPANY LTD. (ITA NO. 214/PN/98). THEREFORE, HE CONFIRMED TH E ADDITION OF RS. 1,37,927/- U/S 36(1)(VA) MADE BY THE ASSESSING OFF ICER. 13. NOW THE ASSESSEE IS IN C.O. BEFORE US. THE LD AR OF THE ASSESSEE HAS REITERATED THE ARGUMENTS MADE BEFORE THE LD CIT (A) AND FURTHER ARGUED THAT THE AMOUNT HAD BEEN DEPOSITED BEFORE TH E DUE DATE OF ITA 853/JP/2012 & C.O. 76/JP/2012_ ACIT VS M/S SUPERSONIC TURNER PVT. LTD. 22 FILING OF THE RETURN OF INCOME. IT IS A SETTLED LAW THAT IF THE DUES WERE PAID BEFORE THE DUE DATE OF FILING OF THE RETURN OF INCOME, NO DISALLOWANCE COULD BE MADE. HE PLACED RELIANCE ON TH E DECISION OF HONBLE ITAT, JAIPUR IN THE CASE OF DCIT VS. ROYAL IN DIA JEWELLERY MANUFACTURING PRIVATE LIMITED IN ITA NO. 582/JP/200 8 DATED 13/02/2009. HE ALSO PLACED RELIANCE ON THE DECISION OF HON'BLE SUPREME COURT IN CASE OF 213 CTR 68 AND 220 CTR 635. THEREFORE , HE PRAYED TO DELETE THE IMPUGNED ADDITION OF RS. 1,37,927/-. 14. AT THE OUTSET, THE LD DR HAS VEHEMENTLY SUPPORT ED THE ORDER OF THE LD CIT(A). 15. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. THE HO NBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. STATE BANK OF BIKA NER & JAIPUR (2014) 43 TAXMANN.COM 411 (RAJ) HAS HELD AS UNDER:- 20. ON PERUSAL OF SEC.36(1)(VA) AND SEC.43(B)(B) A ND ANALYZING THE JUDGMENTS RENDERED, IN OUR VIEW AS WELL, IT IS CLEA R THAT THE LEGISLATURE BROUGHT IN THE STATUTE SECTION 43(B)(B) TO CURB THE ACTIVITIES OF SUCH TAX PAYERS WHO DID NOT DISCHARGE THEIR STATUTORY LIABILITY OF PAYMENT OF DUES, AS AFORESAI D; AND RIGHTLY SO AS ON THE ONE HAND CLAIM WAS BEING MADE UNDER SE CTION 36 ITA 853/JP/2012 & C.O. 76/JP/2012_ ACIT VS M/S SUPERSONIC TURNER PVT. LTD. 23 FOR ALLOWING THE DEDUCTION OF GPF, CPF, ESI ETC. AS PER THE SYSTEM FOLLOWED BY THE ASSESSEES IN CLAIMING THE DE DUCTION I.E. ACCRUAL BASIS AND THE SAME WAS BEING ALLOWED, AS TH E LIABILITY DID EXIST BUT THE SAID AMOUNT THOUGH CLAIMED AS A D EDUCTION WAS NOT BEING DEPOSITED EVEN AFTER LAPSE OF SEVERAL YEARS. THEREFORE, TO PUT A CHECK ON THE SAID CLAIMS/DEDUCT IONS HAVING BEEN MADE, THE SAID PROVISION WAS BROUGHT IN TO CUR B THE SAID ACTIVITIES AND WHICH WAS APPROVED BY THE HON'BLE AP EX COURT IN THE CASE OF ALLIED MOTORS (P) LTD. VS. CIT (1997) 2 24 ITR 677. 21. A CONJOINT READING OF THE PROVISO TO SECTION 4 3-B WHICH WAS INSERTED BY THE FINANCE ACT, 1987 MADE EFFECTIVE FR OM 01/04/1988, THE WORDS NUMBERED AS CLAUSE (A), (C), (D), (E) AND (F), ARE OMITTED FROM THE ABOVE PROVISO AND, FURTHE RMORE SECOND PROVISO WAS REMOVED BY FINANCE ACT, 2003 THEREFORE, THE DEDUCTION TOWARDS THE DB ITA-177/2011 DB ITA-189/20 11 DB ITA-272/2011 16 EMPLOYER'S CONTRIBUTION, IF PAID, P RIOR TO DUE DATE OF FILING OF RETURN CAN BE CLAIMED BY THE ASSE SSEE. IN OUR VIEW, THE EXPLANATION APPENDED TO SECTION 36(1)(VA) OF THE ACT FURTHER ENVISAGE THAT THE AMOUNT ACTUALLY PAID BY T HE ASSESSEE ON OR BEFORE THE DUE DATE ADMISSIBLE AT THE TIME OF SUBMITTING RETURN OF THE INCOME UNDER SECTION 139 OF THE ACT I N RESPECT OF THE PREVIOUS YEAR CAN BE CLAIMED BY THE ASSESSEE FO R DEDUCTION OUT OF THEIR GROSS TOTAL INCOME. IT IS ALSO CLEAR T HAT SEC.43B STARTS WITH A NOTWITHSTANDING CLAUSE & WOULD THUS O VERRIDE SEC.36(1) (VA) AND IF READ IN ISOLATION SEC. 43B WO ULD BECOME OBSOLETE. ACCORDINGLY, CONTENTION OF COUNSEL FOR TH E REVENUE IS NOT TENABLE FOR THE REASON AFORESAID THAT DEDUCTION S OUT OF THE ITA 853/JP/2012 & C.O. 76/JP/2012_ ACIT VS M/S SUPERSONIC TURNER PVT. LTD. 24 GROSS INCOME FOR PAYMENT OF TAX AT THE TIME OF SUBM ISSION OF RETURN UNDER SECTION 139 IS PERMISSIBLE ONLY IF THE STATUTORY LIABILITY OF PAYMENT OF PF OR OTHER CONTRIBUTION RE FERRED TO IN CLAUSE (B) ARE PAID WITHIN THE DUE DATE UNDER THE R ESPECTIVE ENACTMENTS BY THE ASSESSEES AND NOT UNDER THE DUE D ATE OF FILING OF RETURN. 22. IT IS OBSERVED THAT TILL THIS PROVISION WAS BR OUGHT IN AS THE DUE AMOUNTS ON ONE PRETEXT OR THE OTHER WERE NOT BEING DEPOSITED BY THE ASSESSEES THOUGH SUBSTANTIAL BENEFITS HAD BE EN OBTAINED BY THEM IN THE SHAPE OF THE AMOUNT HAVING BEEN CLAI MED AS A DEDUCTION BUT THE SAID AMOUNTS WERE NOT DEPOSITED. IT IS PERTINENT TO NOTE THAT THE RESPECTIVE ACT SUCH AS P F ETC. ALSO PROVIDES THAT THE AMOUNTS CAN BE PAID LATER ON SUBJ ECT TO PAYMENT DB ITA-177/2011 DB ITA-189/2011 DB ITA-272/ 2011 17 OF INTEREST AND OTHER CONSEQUENCES AND TO GET BE NEFIT UNDER THE INCOME TAX ACT, AN ASSESSEE OUGHT TO HAVE ACTUA LLY DEPOSITED THE ENTIRE AMOUNT AS ALSO TO ADDUCE EVIDE NCE REGARDING SUCH DEPOSIT ON OR BEFORE THE RETURN OF I NCOME UNDER SUB-SECTION (1) OF SECTION 139 OF THE IT ACT. 23. THUS, IT IS VIEWED THAT WHERE THE PF AND/OR EPF , CPF, GPF ETC., IF PAID AFTER THE DUE DATE UNDER RESPECTIVE ACT BUT BEFORE FILING OF THE RETURN OF INCOME UNDER SECTION 139(1), CANNO T BE DISALLOWED UNDER SECTION 43B OR UNDER SECTION 36(1) (VA) OF THE IT ACT. ITA 853/JP/2012 & C.O. 76/JP/2012_ ACIT VS M/S SUPERSONIC TURNER PVT. LTD. 25 BY RESPECTFULLY FOLLOWING THE JUDGMENT OF THE HONBL E RAJASTHAN HIGH COURT, WE DELETE THE ADDITION MADE BY THE LD CIT(A). HENCE GROUND NO. 3 OF THE ASSESSEES C.O. IS ALLOWED. 16. IN THE RESULT, THE APPEAL OF THE REVENUE AS WEL L AS C.O. OF THE ASSESSEE ARE PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 10/09/2015. SD/- SD/- VKJ-IH-RKSYKUH VH-VKJ-EHUK (R.P.TOLANI) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ @ JAIPUR FNUKAD @ DATED:- 10 TH SEPTEMBER, 2015 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- THE ACIT, CIRCLE-4, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- M/S SUPERSONIC TURNER PVT. LTD., JAIP UR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDR @ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 853/JP/2012 & C.O. 76/JP/2012) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR