Itxa-568.Sxw v. Commissioner Of Income Tax Reported In (2006) 285 Itr 213

ASN IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.568 OF 2012 The Commissioner of Income Tax-5. ..Appellant. v.M/s. Suashish Diamonds Ltd...Respondent. Mr.Suresh Kumar with Mr. D.K.Kamwal for the Appellant.Mr.Ajay R.Singh for the Respondent. CORAM : J.P. DEVADHAR AND M.S. SANKLECHA, JJ. DATE : 1st March, 2013 PC: In this appeal by the revenue for assessment year 2005-06 following questions have been raised for our consideration. a)Whether on the facts and in the circumstances of the case and in law the Tribunal was right in setting aside the dis-allowance of Rs.83,23,082/- made by the Assessing Officer u/s.14A read with Rule 8D and further directing the A.O. to work out the dis-allowance in light of the decision of the jurisdictional High Court in the case of M/s. Godrej Boyce Mfg. Co. Ltd. reported in 328 ITR 81 (Bom.)? b)Whether on the facts and in the circumstances of the case and in law the Tribunal was justified in the addition made by the A.O. in view of specific provision of section 36(1)(iv) dealing with the question of deductibility of contribution by the employer to superannuation fund of Rs.21,32,437/- to be allowed u/s. 37 of the Income Tax Act, 1961? 2)So far as question (a) is concerned, the impugned order has remanded the issue to the Assessing officer for fresh decision in the light of the decision of this court in the matter of M/s. Godrej Boyce Mfg. Co. Ltd. reported in 328 ITR 81 (Bom.). In these circumstances, we find no reason to entertain question (a). 3)So far as question (b) is concerned, the Tribunal in the impugned order held that the employees' contribution towards the superannuation fund was not allowable as deduction u/s. 36(1)(iv) of the Income Tax Act, 1961 (“the Act”). However, as the same was an expenditure incurred exclusively for the purposes of business, it is allowable as a deduction under Section 37 of the Act. The grievance of the revenue is that once an expenditure specifically provided for in Section 36 of the Act and the assessee does not satisfy it then deduction under Section 37 of the Act is not allowable. In support the revenue relies upon the decision of the Delhi High Court in the matter of Sony India (P) Ltd. v. Commissioner of Income Tax reported in (2006) 285 ITR 213 (Delhi). 4)However, the Tribunal in the impugned order has followed the decision of this court in the matter of CIT v. Western India Paper and Board Mills Pvt. Ltd. reported in 189 ITR 309 wherein it has been held that even where the assessee is not entitled to the deduction under Section 36(1)(iv) of the Act, the deduction under Section 37 of the Act is available, if the expenditure was incurred exclusively only for the purpose of business. In the light of the decision of this Court in Western India Papers and Board Mills Pvt. Ltd. (supra) the issue was remanded to the Assessing officer to determine whether the expenditure has not been incurred fully and exclusively for the business before extending the benefits of Section 37 of the Act. In view of the above, we see no reason to entertain question (b). 5)Accordingly, the appeal is dismissed with no order as to costs. (M.S.SANKLECHA, J.) (J.P. DEVADHAR, J.)