Pr. Commissioner Of Income Tax, Jaipur - Ii, Jaipur v. M/S Rajasthan Renewable Energy Corp. Ltd., E

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Income Tax Appeal No. 49/2019 Pr. Commissioner of Income Tax, Jaipur - II, Jaipur ----Appellant Versus M/s Rajasthan Renewable Energy Corp. Ltd., E-166, YudhisterMarg, C-Scheme, Jaipur ----Respondent For Appellant(s) : Shri Prateek KedawatFor Respondent(s): HON'BLE MR. JUSTICE MOHAMMAD RAFIQ HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA Judgment 06/08/2019 This appeal has been preferred by the revenue under Section260A of the Income Tax Act, 1961 urging the following 5substantial questions of law: i) Whether in the facts and circumstances of the case andin law the ITAT was justified in deleting the addition ofRs.20,00,000/- made on account of contribution made toState Renewal Fund ignoring the fact that contributiontowards fund is not connected with the business but it isdiversion of Income and not allowable u/s.37(1) of the ITAct. ii) Whether in the facts and circumstances of the case andin law the ITAT was justified in deleting the addition ofRs.860731/- made for depositing the employees’contribution to PF & ESI beyond the prescribed time limitprovided in the respective Acts. iii) Whether in the facts and circumstances of the caseand in law the ITAT was justified in holding that employees’ contribution to PF and ESI governed by theprovision of section 43B and not by section 36(1)(va) r.w.s. 2(24)(x) of the IT Act. iv) Whether on the facts and in the circumstances of thecase and in law the ITAT is justified in upholding thedeletion of disallowance of contribution to EnergyConservation Fund of Rs.10000000/- as made byAssessing Officer ignoring the fact that contributiontowards fund is diversion of income and not allowable u/s.37(1) of the Income Tax Act. v) Whether on the facts and in the circumstances of thecase and in law Hon’ble ITAT was justified in deleting thedisallowance of contribution to Rajasthan Bhawan of Rs.1,00,00,000 made by AO as the same was not abusiness expenditure.” So far as question nos.1, 4 and 5 are concerned, theypertain to disallowing the addition and upholding deletion of dis-allowance of contribution to Energy Conservation Fund. Thisexpense was claimed by the assessee under Section 37(1) of theAct of 1961. It is not in dispute that in respect of previous years, acommon judgement dated 2.8.2017 was passed in D.B. IncomeTax Appeal No.145/2015, Principal Commissioner of Income Taxvs. M/s. Rajasthan State Industrial Development & InvestmentCorporation Ltd., wherein this Court has upheld the expenditure,thus the judgement of the ITAT appears to be reasonable and doesnot call for any interference. As regards to the question nos.2 and 3, they are commonand identically worded and relates to contribution towardsprovident fund. It is not in dispute that this Court in Commissionerof Income Tax vs. M/s. State Bank of Bikaner and Jaipur-(2014) 363 ITR 70 (Raj.) decided on 6.1.2014 binds and covers thedispute against the revenue. However, the learned counsel for therevenue informs that the Special leave to Petition filed by therevenue against the aforesaid judgement is pending before theSupreme Court. Even though these questions with respect tointerpretation of Section 43B of the Act were answered against therevenue, but they are subject to the final order of the SupremeCourt on these questions. The appeal is disposed of, however, with the aforementionedobservations. (NARENDRA SINGH DHADDHA),J(MOHAMMAD RAFIQ),J RAVI SHARMA /58