ACIT, ALWAR vs. KALAS BIOTECH LTD., ALWAR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR Jh fot; iky jko] U;kf;d lnL; ,oa Jh Hkkxpan] ys[kk lnL; ds le{k BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, AM vk;dj vihy la-@ITA No. 180/JP/2016 fu/kZkj.k o"kZ@Assessment Year : 2010-11 cuke The ACIT, M/s Dalas Biotech Ltd. Vs. Circle-2, E-292-A, Industrial Area, Alwar. Bhiwadi, Alwar. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AACCS4061Q vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri Rajeev Sagoni (C.A.) jktLo dh vksj ls@ Revenue by : Shri R.A. Verma (Addl. CIT) lquokbZ dh rkjh[k@ Date of Hearing : 12/12/2017 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 19/02/2018 vkns'k@ ORDER

PER: VIJAY PAL RAO, J.M. This appeal by the Revenue is directed against the order dated 02.12.2015 of CIT (A), Alwar for the assessment year 2010-11. The Revenue has raised the following grounds:-

“ Appeal is filed on the following grounds against the order of ld. CIT), Alwar in appeal No. 87/2013-14 dated 02.12.2015 in the case of M/s Dalas Biotech Ltd., E-292-A Industrial Area, Bhiwadi, Alwar (AACCS4061Q) for the A.Y. 2010-11:-

ITA No.180/JP/2016 ACIT v M/s Dalas Biotech Ltd., Alwar.

of unexplained cash credit. During the assessment proceedings the AO

noted that the assessee has shown a loan of Rs. 52,00,000/- received

from Smt. Lekha Rajani one of the Directors of the company. The

assessee was asked to furnish confirmation, PAN, Designation of AO 2

ITA No.180/JP/2016 ACIT v M/s Dalas Biotech Ltd., Alwar.

and copy of ITR, Bank Statement of the creditor. The assessee

furnished confirmation, PAN and Designation of the AO of Smt. Lekha

Rajani. Thereafter, the assessee also submitted that the bank statement

of the loan creditor as well as certificate issued by Oriental bank of

Commerce, Delhi certifying a loan of Rs. 52,00,000/- against CDR of

Mrs. Lekha Rajani on 31.03.2010. The AO issued summons u/s 131 to

Smt. Lekha Rajani for examination and the statement of Smt. Lekha

Rajani was recorded by the AO. The AO observed that Smt. Lekha

Rajani has clearly denied having given any loan to anybody during the

relevant assessment year or during the earlier years. Further, Smt.

Lekha Rajani also stated that she did not have any source of income

except salary from the company which she started receiving from

financial year 2009-10. The Assessing Officer after analyzing the

statement of Smt. Lekha Rajani as well as the bank details held that the

genuineness and credit worthiness of the loan of Rs. 52,00,000/- is

doubtful and unexplained. Accordingly, the AO made an addition of Rs.

52,00,000/- as unexplained cash credit of the assessee company. The

assessee challenged the action of the AO before the ld. CIT(A), and

filed additional which was forwarded to the AO for examination and

comments. The AO submitted the remand report along with the

ITA No.180/JP/2016 ACIT v M/s Dalas Biotech Ltd., Alwar.

relevant excerpts of her statement recorded during the remand

proceedings. After considering the remand report and the statement of

Smt. Lekha Rajani recorded during the remand proceedings the ld.

CIT(A) deleted the addition made by the AO on this account.

statement of Smt. Lekha Rajani during the assessment proceedings and

as per the question no. 20 to 24 and 28 Smt. Lekha Rajani has denied

having any income or source of fund for giving alleged loan of Rs. 52

lacs to the assessee company. He has referred to the relevant part of

the statement and submitted that she has denied having giving any

loan to the assessee company. Therefore, once that Smt. Lekha Rajani

has denied having any source of income or fund as well as giving any

loan to the assessee company then the genuineness of the transaction

could not be proved by the assessee. He has further contended that

Smt. Lekha Rajani was not a third person but is one of the directors of

the assessee company and therefore, statement recorded during the

remand proceedings is an afterthought and self serving which is

contrary to the statement recorded during the assessment proceeding.

In the absence of the any allegation of mistake in the statement or

coercion applied by the AO during the course of assessment 4

ITA No.180/JP/2016 ACIT v M/s Dalas Biotech Ltd., Alwar.

proceeding, the second statement of Smt. Lekha Rajani cannot be

accepted. Further, even if she has accepted giving loan she has failed to

explain the sources of the loan. The income of Smt. Lekha Rajani and

the details of her bank account shows that the funds credited to her

bank account do not belong to her and may be the unaccounted fund

of the assessee company rooted through the bank account of the

Director. He has relied upon the orders of the authorities below.

AO again examined the loan creditor during the remand proceedings

wherein she has explained the source of funds as well as loan giving to

the assessee company. Therefore, once the entire transaction is

reflected in the bank account of the loan creditor and produce before

the AO then, the assessee has discharged its onus to explain the cash

credit in the books. He has supported the order of the ld. CIT(A).

material on record. There is no dispute that during the assessment

proceedings Smt. Lekha Rajani stated in her statement that she is

having no other source of income except salary from the assessee

company. The relevant part of her statement reproduced by the AO as

well as ld. CIT(A) as under:- 5

ITA No.180/JP/2016 ACIT v M/s Dalas Biotech Ltd., Alwar. iz'u 20 vkidk dEiuh ds osru ds vykok vU; vk; ds L=ksr ds ckjs esa crkosa\ mrj dEiuh ds osru ds vykok vk; ds L=ksr ugha gSaA iz'u 21 foRrh; o’kZ 2009&10 ls igys ds ukS&nl o’kksZa esa vkius crk;k fd vki dksbZ dk;Z ugha dj jgs Fks rks D;k bu o’kksZa esa vkidh dksbZ vk; Fkh\ mrj esjh dksbZ vk; ¼Income½ ugha FkhA bu o’kksZa esa o’kZ 2000 ds ckn esjh dksbZ vk; ugha gSA bu o’kksZa esa esjh Savings ugha FkhA iz'u 22 forh; o’kZ 2009&10 ,oa mlls igys dh dksbZ lsafoXl ;k cSad [kkrksa esa fdruk iSlk gS mlds ckjs esa crkosa\ mRkj F.Y. 2009-10 ,oa mlls igys ds o’kksZa esa esjh dksbZ lsfoaXl ugha gSaA oSad esa foRrh; o’kZ 2009&10 ,oa mlls igys Hkh lsfoaXl@cSysal ugha FkhA lsfoaXl bf.M;k esa vkSj ckgj yUnu esa Hkh ugha FkhA orZeku esa cSad OBC ubZ fnYyh esa 2 yk[k :- gSaA iz'u 23 foRrh; o’kZ 2009&10 ,oa mlls igys tc vki yUnu esa Fks vkids uke ls vpy ,oa py lEifr ds ckjs esa fooj.k nhft,A mRkj esjs uke ls py ,oa vpy lEifr ugha gSa ,oa FDRs Hkh esjs uke ls ugha gSA py] vpy ,oa FDRs u Hkkjr esa gS u gh yUnu esa ¼uk gh igys Fkh½A iz'u 24 foRrh; o’kZ 2008&2009 ,oa 2009&10 esa ;k mlls igys vkius dksbZ ykWu@fx¶V fy;k gS] mlds ckjs esa crkosa\ mŸkj foRrh; o’kZ 2008&09] 2009&10 esa ;k mlls igys eSusa fdlh ls dksbZ ykWu@fx¶V ugha fy;k gSA iz'u 25 foRrh; o’kZ 2009&10 esa D;k vius dksbZ ykWu@fx¶V fn;k gS] D;k dEiuh esa 'ks;j dsfiVy esa Hkh dksbZ fuos'k fd;k gS rks fooj.k nsosa\ mŸkj ughaA forh; o’kZ 2009&10 ,oa mlls igys ds o’kksZa esa eSusa fdlh Hkh izdkj dk ykWu@fx¶V fdlh dks ugha fn;k gS] uk gh eSusa 'ks;j dsfiVy esa Hkh fuos'k fd;k gS] uk gh ckn ds lkyksa esa ykWu@fx¶V] 'ks;j dsfiVy fn;k gSA iz'u 26 fnuakd 31-03-2010 dks eSa] nykl ck;ksVsd fyfeVsM dh fdrkcksa esa vkids uke ls :i;s 52 yk[k dk yksu vkids uke ls fjflo gksuk crk;k x;k gSA :i;s 52 yk[k dk ykWu vki }kjk nykl ck;ksVsd dks fn;k x;k gSA blds ckjs esa vkidk D;k dguk gS\ mŸkj blds ckjs esa eq>s dqN ekywe ughaA iz'u 27 vkius eS- nykl ck;ksVsd fyfeVsM dks fnuakd 31-03-2010 dks D;k vkius :i;s 52 yk[k dk ykWu fn;k gS] ;fn gkWa] rks mlds L=ksr ds ckjs esa fooj.k crkosaA 6

ITA No.180/JP/2016 ACIT v M/s Dalas Biotech Ltd., Alwar. mŸkj blds ckjs esa eq>s dqN ekywe ughaA iz'u 28 vkidks ge ,d confirmation fn[kk jgs gSa tks fd eS- nykl ck;ksVsd fyfeVsM us F.Y. 2009&10 ls lEcfU/kr fu/kkZj.k ds nkSjku fn;k gS ftlesa vkius bUgsa :i;s 52 yk[k dk ykWu nsus dks confirm fd;k gS ftlesa vkids gLrk{kj gSa ,oa vkidks ,d OBC dk [kkrk la-10488011000696 fn[kk jgs gSa ftlesa fnukad 31-03- 2010 dks :i;s 52 yk[k dk MsfcV gqvk gS ,oa fnuakd 16-04-2010 dks :i;s 52]21]661-00 dh adjustment entry gS d`i;k bldk fooj.k nsosaA d`i;k bu nksuksa entries dk fooj.k nsaA mijksDr [kkrk la- D;k vkidk gS\ mŸkj buds ckjs esa eq>s tkudkjh ugha gSA

She has even stated that before the financial year 2009-10 she was not having any income since the year 2000 except saving of Rs. 2 lacs she was not having any fund in the bank. Even, in response to question No. 27 and 28 she has denied having knowledge about the alleged loan of Rs. 52 lacs given to the assessee company. Thus, it is clear that though the loan transaction is shown from the account of Smt. Lekha Rajani the director of the assessee company however, the funds in the account and even the operation of that account was not in the knowledge of Smt. Lekha Rajani. It appears that the said bank account of Smt. Lekha Rajani has been operated by her husband who is also the director of the company and therefore, the possibility of unaccounted money of the assessee company rooted through the bank account of Smt. Lekha

ITA No.180/JP/2016 ACIT v M/s Dalas Biotech Ltd., Alwar.

Rajani cannot be ruled out. It appears to be a matter of benami stock

transaction of using the bank account of Smt. Lekha Rajani.

proceeding, we find that there is no allegation either by the assessee or

Smt. Lekha Rajani that her statement during the assessment

proceedings was recorded by the AO under durous or coercion. Even

there is no allegation or clarification subsequently that she has made a

incorrect statement during the assessment proceeding. The statement

recorded during the remand proceedings is a tutored statement to sever

the interest of the assessee company. It is not a case of statement

recorded by the AO of a third parties at the back of the assessee but

the statement of the Director of the assessee company itself was

recorded by the AO. Hence, we are of the considered opinion that the

second statement cannot be given precedent to the first statement

recorded during the assessment proceedings. Rather the chances and

possibilities of tempering and tutoring of statement given subsequently

at the time of remand proceedings are more likely. Thus, though the

entire transaction has been done through the bank account of Smt.

Lekha Rajani however, the question remains whom the funds flow from

the bank account belong to. According, we set aside this issue to the 8

ITA No.180/JP/2016 ACIT v M/s Dalas Biotech Ltd., Alwar.

record of the Assessing Officer for carrying out a proper examination

and investigation on this point. Needless to say the assessee be given

an opportunity of hearing before passing a fresh order on this issue.

3,41,069/- on account of commission paid. The AO noted that the

assessee has claimed a sum of Rs. 16,27,690/- against commission paid

expenses. The AO asked the assessee to furnish the details of the

commission paid. The assessee was also asked to furnish the name and

address, amount and PAN of the parties to whom commission was paid

during the year under consideration. After availing various opportunities

and reminders the assessee finally filed its reply and submitted that

commission credited to M/s G.C. Chemie Pharmie Ltd. could not be

paid to the party due to some differences and the amount was written

back in the subsequent year. Thus, the assessee submitted that the

amount was considered as income in the subsequent year and

therefore, the same could not be disallowed in the year under

consideration. The AO after considering the reply of the assessee has

disallowed a some of Rs. 1,68,681/- on account of commission credited

to M/s G.C. Chemie Pharmie Ltd. The assessee has also claimed Rs.

3,41,069/- as commission paid to Shri Permal C Shah. The assessee

ITA No.180/JP/2016 ACIT v M/s Dalas Biotech Ltd., Alwar.

filed a confirmation from Shri Permal C Shah wherein he has admitted

the payment of commission of Rs. 3,02,047/- for the financial year

2007-08 and financial year 2008-09. The AO proposed to disallow the

said amount on the ground that it does not pertinent to the assessment

year under consideration. The assessee then explained that though the

invoice of commission relates to the earlier assessment years however,

the amount was paid during the financial year 2009-10 relevant to the

assessment year under consideration and TDS on the said commission

was also debited and deposited in the financial year 2009-10.

Accordingly, the AO disallowed the said amount of Rs. 3,41,069/-. On

appeal the ld. CIT(A) has allowed the claim of the assessee regarding

commission payment of Rs. 3,41,069/- to Shri Permal C Shah on the

ground that when the TDS was deducted during the year under

consideration on the payment made during the year then, the AO is not

justified disallowing the amount.

expenditure pertains to the earlier assessment years then merely the

payment was made during the year will not make it allowable

deduction. He has relied upon the order of the AO.

ITA No.180/JP/2016 ACIT v M/s Dalas Biotech Ltd., Alwar.

the issue was crystallized during the year under consideration,

therefore, it is allowable in the year of crystallization. He has supported

the order of the ld. CIT(A).

material on record. As far as payment of the commission and deduction

of TDS during the year under consideration is concerned the same is

not in dispute therefore, if the assessee has not claimed this

expenditure in the earlier assessment year then the same is allowable

claim as the expenditure liability was crystallized during the year under

consideration on receipt of debit note. However, there is not dispute

that the commission relates to the financial years 2007-08 and 2008-09

as admitted by the assessee in its reply, therefore, only rider for

allowing the claim of the assessee is whether this claim was earlier

made by the assessee or not. Accordingly subject to the verification that

the said claim has not been made in the earlier assessment years we do

not find any reasons to interfere with the order of the ld. CIT(A). The

AO is directed to verify whether the assessee has made any claim of

this amount in the earlier years or not.

ITA No.180/JP/2016 ACIT v M/s Dalas Biotech Ltd., Alwar.

(ia) of the Act. The AO noted that the assessee has paid commission

to foreign parties of Rs. 4.81,562/- however, the assessee has not

deducted tax on the same. Accordingly, the AO made disallowance of

the said amount of Rs. 4,81,562/- by invoking the provisions of Section

40(a)(ia) of the Act. The ld. CIT(A) allowed the claim of the assessee on

the ground that the recipient of the commission is not having

permanent established (PE) in India and therefore, this amount was

not taxable in India in the hand of the recipient.

discussed the facts in respect of this amount and pointed out that the

assessee has not produced any documentary evidence to show the

income was not accrued in India. Further, the assessee has claimed

certain expenses on account of visit by the Bangladesh agents to

India and therefore, the AO has clearly establish the fact that the

services were rendered in India and income is also accrued in India.

recipient are having no P.E. in India and they have not rendered any

services in India to the assessee. The assessee made the payment in

foreign currency as the services were rendered outside India. Thus,

ITA No.180/JP/2016 ACIT v M/s Dalas Biotech Ltd., Alwar.

when the income has not arisen or accrued in India in the hand of

recipient because of no PE in India then, the assessee is not under

obligation to deduct TDS. He has supported the order of the ld. CIT(A).

material on record. The commission in question was paid to the non

resident who was not having permanent establishment (PE) in India

however, neither the AO nor the ld. CIT(A) has discussed the nature of

services rendered by the non residents to the assessee. Further, it is

also not emerging from the record whether the assessee is having any

business outside India. Therefore, in the absence of nature of service

rendered by the non-resident as well as in the absence of any contract

/agreement between the parties produce before us it is not possible to

give a concluding finding on this issue. Neither the assessee nor the

Revenue has filed any document or details showing the nature of

services rendered by these non residents to whom the commission was

paid. Accordingly, we set aside this issue to the record of the Assessing

Officer to carry out a proper enquiry and examination of the facts

regarding the nature of services as well as the business connection of

the assessee outside India and then, decide this issue as per law.

Needless to say the assessee be given an opportunity of hearing.

ITA No.180/JP/2016 ACIT v M/s Dalas Biotech Ltd., Alwar.

account of remuneration paid to Smt. Lekha Rajani u/s 40A(2)(b) of the

Act. The AO noted that the assessee company has paid remuneration of

Rs. 6,00,000/- to Smt. Lekha Rajani a specified person u/s 40A(2)(b).

The AO further noted that during the immediately preceding year the

assessee did not pay any remuneration to Smt. Lekha Rajani whereas

during the year under consideration the assessee paid a sum of Rs.

6,00,000/- towards salary/remuneration. The AO held that she has not

involved in the working of the company, therefore, remuneration paid

to her is not justified. Accordingly, the AO has disallowed 20% of

remuneration paid to her. On appeal ld. CIT(A) allowed the claim of the

assessee.

recorded by the AO Smt. Lekha Rajani has admitted that she was not

having knowledge about the affairs and work of the company.

Therefore, when she was not a active director involving in the affairs of

the company then the remuneration paid to her is exclusive. He has

relied upon the order of the AO.

during the remand proceeding Smt. Lekha Rajani has stated in the

ITA No.180/JP/2016 ACIT v M/s Dalas Biotech Ltd., Alwar.

statement that she rendered services and looked after the house

keeping of the company she is also holding past experience in U.K. and

well qualify, therefore, the remuneration was paid @ 50,000/- per

month is commensurate to her services rendered to the company. He

has further submitted that the claim of remuneration of Rs. 12 lacs has

been allowed by the AO for the assessment year 2012-13 while passing

the scrutiny assessment u/s 143(3) of the Act. He has relied upon the

orders of the ld. CIT(A).

on record. We find that the AO has disallowed 20% of the remuneration

paid to the Director only on the basis of the statement recorded and

without examining the issue of fair market remuneration as required u/s

40A(2)(b) of the Act. The Assessing Officer has not carried out any

exercise of determining the fair market or reasonable value of services

rendered by the Director. The ld. CIT(A) has rightly considered this

issue in paras 10.7 and 10.8 as under:-

“10.7 During the course of assessment proceeding details of salary paid to employees were also sought and provided with TDS details. AO found that the employees are getting higher salary than remuneration paid to Smt. Lekha Rajani, Director of the assessment company. The AO was required to compare the remuneration with employee who has lesser responsibility than director getting higher salary but it was not done. Therefore 15

ITA No.180/JP/2016 ACIT v M/s Dalas Biotech Ltd., Alwar.

before making addition u/s 40(a)(ia) onus is cast upon the AO for making disallowance u/s 40(a)(ia) of the Act, 1961, which was not done at all the fair market value of services rendered were not compared. 10.8 Having considered the material available on record, I find that the claim of remuneration payment of Rs. 12 lacs to Smt. Lekha Rajani has been allowed by the AO in AY 2012-13, by order passed u/s 143(3) of the IT Act. Therefore, considering her experience of more than 30 years, I hold that there is no justification in making a disallowance of remuneration paid to her. Accordingly, I delete the disallowance of Rs. 1,20,000 made by the AO u/s 40A(2) of the IT Act.”

Thus, in view of the facts that the AO has not carried out any exercise

to determine the fair market value of service and further the

remuneration of Rs. 12 lacs paid Smt. Lekha Rajani for the assessment

year 2012-13 was allowed, we do not find any error or illegality in the

order of the ld. CIT(A) qua this issue.

40(a)(ia) in respect of commission paid to Nectar Drugs Pvt. Ltd. The

AO noted that the assessee has paid a sum of Rs. 33,086/- to M/s

Nectar Drugs Pvt. Ltd. without deduction of tax at source. The AO has

referred to the reply of the assessee wherein the assessee admitted

that TDS on the above payment was required to be deducted but it was

not deducted thus, the assessee offered the said amount for disallowed.

ITA No.180/JP/2016 ACIT v M/s Dalas Biotech Ltd., Alwar.

On appeal, the ld.CIT(A) deleted the disallowance made by the AO on

the ground that this was not a payment of commission but it represents

the amount of rebate and discount allowed by the assessee to Nectar

Drugs Pvt. Ltd.

Officer and submitted that the assessee itself agreed to the

disallowance.

assessee furnished the complete details before the AO as well as ld.

CIT(A) and also details of the TDS deducted as per rate applicable. He

has supported the order of the ld. CIT(A).

material on record. Though the Assessing Officer has disallowed a sum

of Rs. 33,086/- by treating the same as commission payment u/s

40(a)(ia) of the Act however, the ld. CIT(A) found that this payment

does not pertains to the commission but it represents rebate and

discount. Relevant finding of the ld. CIT(A) in para 11.7 is as under:-

“During the course of assessment proceedings details of salary paid to employees were also sought and provided with TDS details. AO found that the employees are getting higher salary than remuneration paid to Smt. Lekha Rajani, Director of the assessee company. The AO was required to compare the 17

ITA No.180/JP/2016 ACIT v M/s Dalas Biotech Ltd., Alwar.

remuneration with employee who has lesser responsibility than director getting higher salary but it was not done. Therefore before making addition u/s 40A(2) of the IT Act, 1961, which was not done at all the fair market value of services rendered were not compared.”

The ld. CIT(A) has given a finding of fact that the nature of payment is

rebate and discount and not commission and therefore, no TDS is

required on this amount. In the absence of contrary fact brought before

us, we do not find any reasons to interfere with the order of the ld.

CIT(A) qua this issue.

account of late payment of ESI & PF.

material on record. The ld. CIT(A) has deleted the disallowance made

by the AO by following the decision of Hon’ble jurisdiction High Court in

case of CIT Vs. State Bank of Bikaner & Jaipur 363 ITR 70 as well as

the other decision of the Hon’ble High Court. The relevant finding of ld.

CIT(A) in paras 13.5 to 13.7 is as under:-

“13.5 I have perused the assessment order as well as remand report of the AO, submissions made including judicial citations and cross reply of the appellant and find that an addition of Rs.45,916/- has been made by the AO, based on the ground that

ITA No.180/JP/2016 ACIT v M/s Dalas Biotech Ltd., Alwar.

payments for ESI and PF have been deposited after the due date specified in the respective Acts.

13.6 The appellant has stated that the payments of ESI & PF were made before the due date of filing of income tax return and AO has made the addition after ignoring the applicable judgments of Hon’ble Supreme Court in the case of Alom Extrusions 319 ITR 0306 and Vinay Cement Ltd. 213 CTR 268 on this issue, which are squarely applicable in this case. Further, AO has also ignored the judgments of Hon’ble Rajasthan High Court in the case of CIT V/s State Bank of Bikaner and Jaipur as reported in 360 ITR 70, CIT vs Udaipur Dugdh Utpadak Sahkari Sangh Ltd. 265 CTR 59, etc; came to the similar conclusion vide order dated 06, January, 2014 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), cannot be disallowed.

13.7 In view of the above facts and after considering the judgment of Hon’ble Supreme Court and of Hon’ble Rajasthan High Court, I find no justification in the action of the AO in making the said addition and therefore the addition of Rs.45,916/- is deleted.”

We further note that the Hon’ble jurisdiction High Court has reiterated

this view in case of Jaipur Vidyut Vitran Nigam Ltd. 49 taxmann.com

540 wherein the Hon’ble High Court has held in para 6 is as under:- “6. We have considered the arguments advanced by the learned counsel for the Revenue and have also gone through the impugned orders. In our view no substantial question of law arises out of the orders of the Tribunal as it is an admitted fact that the entire amount was deposited by the respondent- assessee at least on or before the due date of filing of the returns under s. 139 of the IT Act and being a concurrent finding of fact 19

ITA No.180/JP/2016 ACIT v M/s Dalas Biotech Ltd., Alwar.

by the respective authorities and in the light of the judgments rendered by this Court in the case of CIT v. State Bank of Bikaner & Jaipur/ jaipur Vidyut Vitran Nigam Ltd. [2014] 363 ITR 70/43 taxmann.com 411 of even date wherein it has been held that if the amount has been deposited on or before the due date of filing the return under s. 139 and admittedlv it was deposited on or before the due date then the amount cannot be disallowed under s. 43B of the IT Act or under s. 36(1)(va) of the Act. In fact in the above matters one of the parties is same as in the present appeals, therefore, the issue is no more res Integra in the light of judgments of this Court referred to supra and, in our view, no substantial question of law arises out of the impugned orders of the Tribunal, which may require attention of this Court.

Thus, when the payment was undisputedly deposited before the due of

filing of return u/s 139 of the Act then no disallowance is called for in

view of the binding precedent of Hon’ble jurisdiction High Court.

Accordingly, we do not find any error or illegality in the order of the ld.

CIT(A) qua this issue.

In the result, the appeal of the Revenue is partly allowed.

Order pronounced in the open court on 19/02/2018 Sd/- Sd/- ¼Hkkxpan ½ ¼fot; iky jko½ (Bhagchand) (Vijay Pal Rao) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 19/02/2018. *Santosh. आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 20

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