1 IT(SS)A No. 08 to 13/Kol/2015 Rahee Track Technologies Pvt. Ltd., AY 2006-07 to 2011-12 IN INCOME TAX APPELLATE TRIBUNAL B BENCH: KOLKATA [Before Shri M. Balaganesh, AM & Shri S.S. Viswanethra Ravi, JM] I.T(SS).A Nos. 08 to 13/Kol/2015 Assessment Years: 2006-07 to 2011-12 Rahee Track Technologies Pvt. Ltd. Vs. Deputy Commissioner of Income-tax, (PAN: AAGCS1931D) Central Circle-XXI, Kolkata. (Appellant) (Respondent) Date of hearing: 04.10.2016 Date of pronouncement: 07.10.2016 For Appellant: Shri Manish Tiwari, FCA For Respondent: Shri G. Mallikarjuna, CIT, DR ORDER Per Bench: All these appeals by assessee are arising out of separate orders of CIT(A)-21, Kolkata dated 27.11.2014. Assessment was framed by DCIT, CC-XXI, Kolkata u/s.153A/143(3) of Income tax Act, 1961 (hereinafter referred to as Act ) for AYs 2006-07 to 2011-12 vide his separate orders dated 31.03.2014. Since grounds are common except variance in amount and for sake of brevity, we dispose of all appeals by this consolidated order. 2. first issue to be decided in these appeals is that as to whether ld CITA is justified in upholding various disallowances of expenses such as Commission, PF/ ESI , Fringe Benefit Tax u/s 40(a) and Bonus u/s 43B of Act in search assessments framed u/s 153A of Act in absence of any incriminating material found during course of search to that effect. 2.1. brief facts of this issue is that there was search and seizure operation conducted u/s 132 of Act on 22.9.2011 in residential and office premises of Rahee Group. group is primarily engaged in business of railway infrastructure, railway track product manufacturer (track installation and bridge) . historical background of assesseee remains that M/s Shalimar Fastening Pvt Ltd incorporated on 15.2.2002 was renamed as Rahee Track Technologies Pvt Ltd from 5.7.2005. It manufactures railway 2 IT(SS)A No. 08 to 13/Kol/2015 Rahee Track Technologies Pvt. Ltd., AY 2006-07 to 2011-12 products like Turnouts, carved switch, improved switch, expansion points, steel sleeper, crossing and switch devices for railway tracks including high speed. Consequent to search, notices u/s 153A of Act was issued and assessments were framed u/s 153A of Act for Asst Years 2006-07 to 2011-12 by making following disallowances :- (a) Disallowance of Commission for Asst Years 2006-07 to 2011-12 (b) Disallowance of Employees Contribution to PF / ESI for Asst Years 2006-07, 2007- 08 , 2008-09 and 2011-12 (c) Disallowance of FBT liability u/s 40(a) for Asst Years 2008-09 and 2009-10 (d) Disallowance of Bonus u/s 43B for Asst Years 2010-11 and 2011-12 2.2. assessee stated that original assessments for Asst Years 2006-07 to 2009- 10 were completed u/s 143(3) of Act as on date of search. Hence those years would fall under category of unabated assessments and hence income assessed originally thereon could not be disturbed unless there is any incriminating material found in course of search relatable to those assessment years. It was argued that admittedly no incriminating materials were found for those assessment years in course of search and accordingly pleaded not to disturb originally assessed income. ld AO however did not heed to contentions of assessee and proceeded to frame assessments u/s 153A of Act by making regular disallowance of expenses on plea that assessments to be framed u/s 153A of Act clears all decks and would enable ld AO to assess or reassess total income as per provisions of Act irrespective of incriminating materials found in search. This action of ld AO was also confirmed by ld CITA. Aggrieved, assessee is in appeals before us. 2.3. ld AR stated that assessments for Asst Years 2006-07 to 2009-10 were originally completed u/s 143(3) of Act on 31.12.2008 , 31.12.2009, 16.12.2010 & 21.12.2011 respectively, in support of which, he placed relevant assessment orders on record. He reiterated submissions made before ld CITA with regard to framing of additions in section 153A assessments without any incriminating material found thereon. Reliance was placed on following decisions in support of his contentions:- 3 IT(SS)A No. 08 to 13/Kol/2015 Rahee Track Technologies Pvt. Ltd., AY 2006-07 to 2011-12 (a) CIT vs Veerprabhu Marketing Ltd reported in (2016) 73 taxmann.com 149 (Cal HC) (b) Decision of this tribunal in case of ACIT vs Kanchan Oil Industries Ltd in ITA No. 725/Kol/2011 dated 9.12.2015 (c ) CIT vs Kabul Chawla reported in (2016) 380 ITR 573 ( Delhi HC) (d)CIT vs Continental Warehousing Corporation (Nhava Sheva) Ltd and All Cargo Global Logistics Ltd reported in (2015) 374 ITR 645 ( Bom) 2.4. In response to this, ld DR argued that expression incriminating material is not found in provisions of Act and it is only Hon ble Courts which had imported those words while rendering decisions. He stated that Hon ble Courts are divided on this issue and placed reliance on decision of Hon ble Karnataka High Court in case of Canara Housing Development Co vs DCIT reported in (2014) 49 taxmann.com 98 (Kar HC) wherein it was held that search assessments could be framed even without existence of incriminating materials found in course of search. He argued that basic foundation for conducting search is governed by provisions of section 132 of Act which has to be read harmoniously with section 153A of Act. There are three conditions based on which search action could be initiated u/s 132 of Act on assessee. They are :- Section 132(1) - If concerned authority has in consequence of information in his possession, has reason to believe that - (a) where person fails to produce books of accounts and other documents in response to notice u/s 142(1) or summons issued u/s 131(1) of Act ; or (b) where person fails to comply with requirements of summons issued u/s 131(1) of Act ; or (c) where person is in possession of any money, bullion, jewellery or other valuable article or thing and such assets represents either wholly or partly income or property which has not been , or would not be, disclosed for purposes of Act (hereinafter referred to as undisclosed income or property) ; then officer , so authorized could conduct search and proceed as per requirements laid down in said section. He argued that aforesaid three primary conditions for 4 IT(SS)A No. 08 to 13/Kol/2015 Rahee Track Technologies Pvt. Ltd., AY 2006-07 to 2011-12 invoking search proceedings cannot be given go by while framing section 153A assessments and instant case falls under section 132(1)(c ) of Act. provisions of section 153A of Act use expression assess or reassess total income and hence search assessment could be framed u/s 153A of Act irrespective of any incriminating materials. 2.5. We have heard rival submissions. We find it would be necessary to address preliminary issue of whether addition could be framed u/s 153A of Act in respect of concluded proceeding without existence of any incriminating materials found in course of search. scheme of act provides for abatement of pending proceedings as on date of search. It is not in dispute that assessments for Asst Years 2006-07 to 2009-10 were originally completed u/s 143(3) of Act and hence it falls under concluded proceeding , as on date of search. Hence legislature does not differentiate whether assessments originally were framed u/s 143(1) or 143(3) or 147 of Act. Hence unless there is any incriminating material found during course of search relatable to those concluded years, statute does not confer any power on ld AO to disturb findings given thereon and income determined thereon, as finality had already been reached thereon, and those proceedings were not pending on date of search to get themselves abated. provisions of section 153A of Act are reproduced hereunder for sake of convenience :- [Assessment in case of search or requisition.77 153A. 78[(1)] Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, in case of person79 where search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A after 31st day of May, 2003, Assessing Officer shall (a) issue notice to such person requiring him to furnish within such period, as may be specified in notice, return of income in respect of each assessment year falling within six assessment years referred to in clause (b), in prescribed form and verified in prescribed manner and setting forth such other particulars as may be prescribed and provisions of this Act shall, so far as may be, apply accordingly as if such return were return required to be furnished under section 139; (b) assess or reassess total income of six assessment years immediately preceding assessment year relevant to previous year in which such search is conducted or requisition is made : 5 IT(SS)A No. 08 to 13/Kol/2015 Rahee Track Technologies Pvt. Ltd., AY 2006-07 to 2011-12 Provided that Assessing Officer shall assess or reassess total income in respect of each assessment year falling within such six assessment years: 2.6. We find that Co-ordinate Bench of this tribunal in case of ACIT vs Kanchan Oil Industries Ltd in ITA No. 725/Kol/2011 dated 9.12.2015 reported in 2016-TIOL-167- ITAT-KOL had explained aforesaid provisions as below:- 6.4. In our opinion, scheme of assessment proceedings should be understood in following manner pursuant to search conducted u/s 132 of Act :- a) Notice u/s 153A of Act would be issued on person on whom warrant of authorization u/s 132 of Act was issued for six assessment years preceding year of search and assessments thereon would be completed u/s 153A of Act for those six assessment years. b) In respect of year of search, notice u/s 143(2) of Act would be issued and assessment thereon would be completed u/s 143(3) of Act. c) In respect of concluded assessments prior to year of search, no addition could be made in relevant assessment year unless any incriminating material is found during course of search with respect to relevant assessment year. d) Pursuant to search u/s 132 of Act, pending proceedings would get abated. In respect of abated assessments, total income needs to be determined afresh in accordance with provisions of section 153A and other provisions of Act. 6.4.1. concluded assessments for purpose of section 153A of Act shall be - (i) assessment years where assessments are already completed u/s 143(1) and time limit for issuance of notice u/s 143(2) of Act has expired or; (ii ) assessment years where assessments are already completed u/s 143(3) of Act ; unless they are reopened u/s 147 of Act for some other purpose in both scenarios stated above. 6.4.2. scheme of assessment proceedings contemplated u/s 153A of Act are totally different and distinct from proceedings contemplated u/s 147 of Act and these procedures of assessment operate in different fields and have different purposes to be fulfilled altogether. 6.4.3. expression assess or reassess stated in section 153A(1)(b) has to be understood as below:- assess means assessments to be framed in respect of abated assessment years irrespective of fact whether there are any incriminating materials found during course of search with respect to relevant assessment years ; reassess means assessments to be framed in respect of concluded assessment years where incriminating materials were found during course of search in respect of relevant assessment year. 6 IT(SS)A No. 08 to 13/Kol/2015 Rahee Track Technologies Pvt. Ltd., AY 2006-07 to 2011-12 2.7. We also find that recently Hon ble Delhi High Court in case of CIT vs Kabul Chawla reported in (2016) 380 ITR 573 (Del) held as under:- 37. On conspectus of section 153A(1) of Act, read with provisos thereto, and in light of law explained in aforementioned decisions, legal position that emerges is as under: i) Once search takes place under section 132 of act, notice under section 153A(1) will have to be mandatorily issued to person searched requiring him to file returns for six AYs immediately preceding previous year relevant to Ay in which search takes place. ii) Assessments and reassessments pending on date of search shall abate. total income for such AYs will have to be computed by AOs as fresh exercise. iii) AO will exercise normal assessment powers in respect of six years previous to relevant AY in which search takes place. AO has power to assess and reassess 'total income' of aforementioned six years in separate assessment orders for each of six years. In other words there will be only one assessment order in respect of each of six AYs "in which both disclosed and undisclosed income would be brought to tax". iv) Although Section 153 does not say that additions should be strictly made on basis of evidence found in course of search, or other post-search material or information available with AO which can be related to evidence found, it does not mean that assessment "can be arbitrary or made without any relevance or nexus with seized material. Obviously assessment has to be made under this Section only on basis of seized material." v) In absence of any incriminating material, completed assessment can be reiterated and abated assessment or reassessment can be made. word 'assess' in Section 153 is relatable to abated proceedings (i.e. those pending on date of search) and word 'reassess' to completed assessment proceedings. vi) Insofar as pending assessments are concerned, jurisdiction to make original assessment and assessment under Section 153A merges into one. Only one assessment shall be made separately for each AY on basis of findings of search and any other material existing or brought on record of AO. vii) Completed assessments can be interfered with by AO while making assessment under section 153 only on basis of some incriminating material unearthed during course of search or requisition of documents or undisclosed income or property discovered in course of search which were not produced or not already disclosed or made known in course of original assessment. 38. present appeals concern AYs 2002-03, 2005-06 and 2006-07 , on date of search said assessments already stood completed. Since no incriminating material was unearthed during search, no additions could have been made to income already assessed. 2.8. We find that decision relied upon by ld DR in case of CIT vs Anil Kumar Bhatia reported in (2013) 352 ITR 493 (Del) does not in any manner advance case of revenue as admittedly Hon ble Delhi High Court in para 24 of its order had held as under:- 24. We are not concerned with case where no incriminating material was found during search conducted under section 132 of Act. We, therefore, express no opinion as to whether Section 153A can be invoked even in such situation. That question is therefore left open. 7 IT(SS)A No. 08 to 13/Kol/2015 Rahee Track Technologies Pvt. Ltd., AY 2006-07 to 2011-12 2.9. We find that decision of Hon ble Delhi High Court in case of CIT vs Kabul Chawla reported in (2016) 380 ITR 573 (Del) had duly considered decisions of CIT vs Anil Kumar Bhatia reported in (2013) 352 ITR 493 (Del) ; CIT vs Chetan Das Lachman Das reported in (2012) 211 Taxman 61 (Del HC) ; Madugula Venu vs DIT reported in (2013) 215 Taxman 298 (Del HC) ; Canara Housing Development Co. vs DCIT reported in (2014) 49 taxmann.com 98 (Kar HC) ; Filatex India Ltd vs CIT reported in (2014) 229 Taxman 555 (Del HC) ; Jai Steel (India) vs ACIT reported in (2013) 219 Taxman 223 (Del HC) ; CIT vs Murli Agro Products Ltd reported in (2014) 49 taxmann.com 172 (Bom HC) ; CIT vs Continental Warehousing Corporation (Nhava Sheva) Ltd reported in (2015) 374 ITR 645 (Bom HC) and All Cargo Global Logistics Ltd vs DCIT reported in (2012) 137 ITD 287 (Mum ITAT) (SB). Hence it could be safely concluded that decision of Hon ble Delhi HC in case of Kabul Chawla supra is latest one on impugned issue which had considered decisions that were quoted by ld DR and distinguished same. 2.10. We also find that Hon ble Jurisdictional High Court recently in case of Principal CIT vs M/s Salasar Stock Broking Ltd in G.A.No. 1929 of 2016 ITAT No. 264 of 2016 dated 24.8.2016 had endorsed aforesaid view of Hon ble Delhi High Court in Kabul Chawla s case and also placed reliance on its own decision in case of CIT vs Veerprabhu Marketing Ltd reported in (2016) 73 taxmann.com 149 (Cal HC). 2.11. We find that provisions of section 132 of Act relied upon by ld DR would be relevant only for purpose of conducting search action and initiating proceedings u/s 153A of Act. Once proceedings u/s 153A of Act are initiated, which are special proceedings, legislature in its wisdom bifurcates differential treatments for abated assessments and unabated assessments. At cost of repetition, we state that in respect of abated assessments (i.e pending proceedings on date of search) , fresh assessments are to be framed by ld AO u/s 153A of Act which would have bearing on determination of total income by considering all aspects, wherein existence of incriminating materials does not have any relevance. However, in respect of unabated assessments, legislature had conferred powers on ld AO to just follow 8 IT(SS)A No. 08 to 13/Kol/2015 Rahee Track Technologies Pvt. Ltd., AY 2006-07 to 2011-12 assessments already concluded unless there is incriminating material found in search to disturb said concluded assessment. In our considered opinion, this would be correct understanding of provisions of section 153A of Act , as otherwise, necessity of bifurcation of abated and unabated assessments in section 153A of Act would become redundant and would lose its relevance. Hence arguments advanced by ld DR in this regard deserves to be dismissed. 2.11. In view of aforesaid findings and respectfully following judicial precedents relied upon hereinabove, we hold that various disallowances made towards Commission, PF/ESI and FBT for Asst Years 2006-07 to 2009-10 , which were unabated / concluded assessments, on date of search, deserves to be undisturbed in absence of any incriminating material found in course of search and accordingly directed to be deleted. Hence we hold that ld AO ought to have only followed old assessed income u/s 143(3) for aforesaid Asst Years 2006-07 to 2009-10. Since issues are addressed on preliminary ground of absence of incriminating materials, we refrain to give our findings on merits of disallowances made towards Commission , PF/ESI and FBT for Asst Years 2006-07 to 2009-10. Accordingly grounds raised by assessee in this regard for those asst years are allowed. 3. next issue to be decided in appeals for Asst Years 2010-11 and 2011-12 are as to whether ld CITA is justified in upholding disallowance of commission paid in sums of Rs. 57,69,392/- and Rs. 3,47,000- respectively made by ld AO in facts and circumstances of case. 3.1. brief facts of this issue is that ld AO observed that assessee company paid commission to following parties for procuring sale orders for products manufactured by company:- Asst Year 2010-11 Asst Year 2011-12 Steel Crackers Pvt Ltd 86,23,684 9 IT(SS)A No. 08 to 13/Kol/2015 Rahee Track Technologies Pvt. Ltd., AY 2006-07 to 2011-12 Creators Corporation 29,15,100 6,94,000 ld AO observed following in his order:- From bills raised by commission agents like M/s Micky Metals & M/s Steel Crackers it appears that commission @ 3% on sales was charged by them and in case of M/s Creator Corporation commission was charged for policy decision resulting into sales of company's products which varied from Rs.450/- to Rs.2,000/-on sale of each product. As bulk of purchase of company's product has been Indian Railways which is Government Agency commission paid to these brokers appears to be excessive as government agency calls for tender and lowest bidder are given contract for either works contract or supply of goods or materials after being assured of quality of goods is as per specification. In doing so commission charged appears to be on very higher side because may be for preparation of tenders, official works, estimate, market survey, feasibility report and travelling may cost some expenses but it is not likely that it should be 3% of gross sales made or per set of sales Rs.450/- to Rs. 2,000/-. Keeping in view that by inflating expenses assessee company may reduce its profit at least to some extent. So, in order to restrict that, 50% of expenditure booked on account of brokerage and commission paid to these parties on estimate basis is being disallowed and added back to total income of assessee in respective assessment years. Accordingly, ld AO disallowed commission paid to extent of 50% to tune of Rs. 57,69,392/- and Rs. 3,47,000/- for Asst Years 2010-11 and 2011-12 respectively. 3.2. assessee pleaded before ld CITA that commission was paid to parties for rendering services in matter of procurement of railway contract and same were made under terms and conditions as per written agreements with parties. assessee also submitted following documents in support of its claim :- (a) Agreement copy (b) Ledger Account (c ) TDS details on commission payments (d) Copy of bills raised by parties (e) IT return and accounts including balance sheet of recipient companies wherein said commission income has been duly offered to tax by them. It was also submitted that aforesaid details were also submitted by assessee before ld AO who did not make any comments regarding same. It was argued that addition has been made by ld AO merely based on guess work dehors materials on record. Reliance in this regard was placed on decision of Hon ble Supreme Court in 10 IT(SS)A No. 08 to 13/Kol/2015 Rahee Track Technologies Pvt. Ltd., AY 2006-07 to 2011-12 case of Dhakeshwari Cotton Mills Ltd vs CIT reported in 26 ITR 775 (SC) wherein it was held that no addition can be made without material and on mere suspicion. 3.3. ld CITA observed that assessee was asked to submit evidences regarding services rendered by persons to whom commission was paid. ld CITA took cognizance of aforesaid documents filed by assessee before him. He however concluded that assessee did not submit any evidence of quantum of services rendered by persons and also failed to establish that quantum of commission payment is commensurate with services rendered by parties. Accordingly, he upheld disallowances made by ld AO. Aggrieved, assessee is in appeals before us on following grounds:- AY 2010-11 1b) That without prejudice to ground No. 1(a) and on facts and in circumstances of case, action of Ld. CIT(A) to confirm disallowance of commission of Rs.57,69,392/- is erroneous, arbitrary and bad in law even on merits. AY 2011-12 1b) that without prejudice to ground No. 1(a) and on facts and in circumstances of case, action of Ld. CIT(A) to confirm disallowance of commission of rs.3,47,000/- is erroneous, arbitrary and bad in law even on merit. 3.4. ld AR argued that entire details of commission payments to parties were filed before lower authorities. ld AO did not dispute nature of services rendered by those parties to assessee in lieu of receipt of commission. Infact ld AO himself had elaborated in his assessment order various activities to be carried out by respective parties but simply stated that commission payment seems to be on higher side. He argued that both ld AO and ld CITA failed to bring in comparable cases to establish that commission payments made by assessee is on higher side. assessee had duly established that commission payments were made pursuant to agreements entered into with parties, tax was duly deducted and remitted on commission payments, invoices raised by those parties on assessee in that regard were filed and those parties had also duly offered commission income in their respective returns, proof for which was also filed before authorities. Hence he argued that assessee had duly established its onus in full in support of claim of expenditure. He further argued that assessee has been 11 IT(SS)A No. 08 to 13/Kol/2015 Rahee Track Technologies Pvt. Ltd., AY 2006-07 to 2011-12 paying commission to parties on regular basis and this has been regular practice of assessee . 3.5. In response to this, ld DR argued that there is no need to bring comparable cases in instant case as it had been found during search that assessee had been engaged in practice of inflating expenditure. Moreover assessee had not proved with evidences to justify quantum of commission payments made by it and hence ld AO had reasonably granted deduction to extent of 50% of claim made by assessee which does not require any interference. 3.6. We have heard rival submissions. We find that ld AO had disallowed commission payment at 50% of claim made by assessee on ground that same is on higher side. We find that assessee had duly furnished evidences in support of claim of commission payments , nature of services rendered by those parties by way of filing agreements entered into by assessee with them, compliance to TDS provisions made by assessee on commission payments and assessee had also furnished income tax returns together with balance sheets and profit and loss account of those parties wherein commission income had been duly offered to tax by respective parties. We find that assessee had discharged its complete onus to establish genuineness of claim of commission payments. We are not in agreement with argument of ld DR that no comparable cases need to be brought on record by ld AO in instant case, for which purpose , he placed reliance on observation of ld AO that assessee group was involved in inflation of expenditure in order to reduce taxable profits as found in course of search. Infact ld AO in order to make this observation had placed reliance on observation made by investigation wing in their appraisal report. But we find that same ld AO had not made any other disallowance of expenditure on ground of inflation of expenditure and more so, there is no iota of evidence brought on record to prove that assessee had indeed involved in inflation of expenditure to reduce taxable profits and it only remained as wild allegation. Hence in these facts and circumstances, we have no other option but to dismiss arguments of ld DR advanced in that regard. If that be so, there is absolutely no basis for ld AO to allow 50% of claim of assessee. We find that ld AO himself in his order had 12 IT(SS)A No. 08 to 13/Kol/2015 Rahee Track Technologies Pvt. Ltd., AY 2006-07 to 2011-12 mentioned various activities to be carried out by parties justifying payment of commission. It is not in dispute that commission @ 3% is paid to M/s Steel Crackers Pvt Ltd on sales made through them and in respect of Creators Corporation , commission was paid for policy decision resulting into sales of company s products which varied from Rs 450 to Rs 2000 on sale of each product. All these facts are brought out clearly in assessment order itself. We find that in addition to above, assessee had also provided agreement copy , Ledger Account , TDS details on commission payments , Copy of bills raised by parties and IT return and accounts including balance sheet of recipient companies wherein said commission income has been duly offered to tax by them. All these evidences clearly prove beyond doubt claim of expenditure on account of commission. We find that disallowance has been made merely based on wild allegation and on surmise and conjecture. In this regard, support drawn by ld AR by placing reliance on decision of Hon ble Supreme Court in case of Dhakeshwari Cotton Mills Ltd vs CIT reported in 26 ITR 775 (SC) is well founded. Hence in facts and circumstances, we hold that there is absolutely no material brought on record to disallow 50% of claim made by assessee and accordingly entire disallowance made on this account deserves to be deleted. Accordingly, Ground No. 1(b) raised for Asst Years 2010-11 and 2011-12 are allowed. 4. next issue to be decided in this appeal is as to whether ld CITA is justified in upholding disallowance made on account of employees contribution to PF / ESI in sum of Rs. 23,846/- for Asst Year 2011-12 in facts and circumstances of case. 4.1. brief facts of this issue is that ld AO observed that as per Clause 16(b) of Tax Audit Report , there was delayed deposit of Rs. 3,871/- towards employees contribution to PF and Rs. 19,975/- on ESI. Since same was not remitted to PF/ESI authorities within due date prescribed under respective Acts, ld AO disallowed same in accordance with section 36(1)(va) of Act, which was also upheld by ld CITA . Aggrieved, assessee is in appeal before us on following ground:- 2. (a) That on facts and in circumstances of case, Ld. CIT(A) is wrong and unjustified in confirming addition in respect of employee's contribution to PF/ESI of Rs. 23,846/- U/s 36(1)va) read with section 2(24)(x) of Income Tax Act, 1961 without proper appreciation of ratio of decision of ITAT, Special Bench, Mumbai in All Cargo Global 13 IT(SS)A No. 08 to 13/Kol/2015 Rahee Track Technologies Pvt. Ltd., AY 2006-07 to 2011-12 Logistics Ltd. - Vs - DCIT (ITA No. 5018 to 5022 & 5059/M/2010) and by misreading facts of present case. (b) That without prejudice to ground No.2(a) and on facts and in circumstances of case, action of Ld. CIT(A) to confirm addition U/s 36(1)(va) read with section 2(24)(x) is erroneous, arbitrary and bad in law even on merit. 4.2. ld AR argued that PF / ESI was remitted before due date of filing return of income and hence placed reliance on decision of this Tribunal in case of Vijay Shree Cement wherein it was held that if payments were made before due date of filing return of income, even employees contribution would be allowed as deduction. However, he fairly agreed that same may be directed to be verified by ld AO and prayed for set aside of this to file of ld AO for verification of dates which was also accepted by ld DR. 4.3. We have heard rival submissions. We find that issue is squarely covered in favour of assessee by following decisions :- Akzo Nobel India Ltd vs CIT in ITA NO. 110 of 2011 dated 14.6.2016 (Cal HC) CIT vs Vijay Shree Limited in ITA No. 245 of 2011 dated 6.9.2011 (Cal HC) CIT vs P.M.Electronics Ltd reported in (2008) 220 CTR 635 (Del) CIT vs Sabari Enterprises reported in (2008) 298 ITR 141 (Kar) CIT vs Alom Extrusions Ltd reported in (2009) 319 ITR 306 (SC) CIT vs Nexus Computer P Ltd reported in (2008) 219 CTR 54 (Mad) CIT vs Vinay Cement Ltd reported in (2007) 213 CTR 268 (SC) CIT vs AIMIL Ltd reported in 2010-TIOL-125-HC-DEL-IT CIT vs Dharmendra Sharma reported in 297 ITR 320 (Del) However, it needs to be verified whether employees contribution to PF / ESI have been remitted before due date of filing return of income by assessee. Hence we deem it fit and appropriate to set aside this issue to file of ld AO to verify said dates and if same are remitted before due date of filing return of income, deduction is to be granted to assessee. Accordingly, Ground No. 2(a) and (b) raised by assessee for Asst Year 2011-12 are allowed for statistical purposes. 5. last issue to be decided in these appeals is as to whether ld CITA is justified in upholding disallowance of bonus, leave salary u/s 43B of Act in facts and circumstances of case for Asst Years 2010-11 and 2011-12. 14 IT(SS)A No. 08 to 13/Kol/2015 Rahee Track Technologies Pvt. Ltd., AY 2006-07 to 2011-12 5.1. brief facts of this issue is that ld AO observed from tax audit report that bonus payable of Rs. 5,22,670/- for Asst Year 2010-11 and Bonus, Leave salary & leave wages payable of Rs. 12,79,715/- were not paid by assessee and accordingly disallowance u/s 43B of Act was warranted. This action of ld AO was upheld by ld CITA. Aggrieved , assessee is in appeals before us on following grounds:- AY 2010-11 2. (a) That on facts and in circumstances of case, Ld. CIT(A) is wrong and unjustified in confirming disallowance of Bonus of Rs. 5,22,670/- U/s 43B of Income Tax Act, 1961 without proper appreciation of ratio of decision of ITAT, Special Bench, Mumbai in All Cargo Global Logistics Ltd. - Vs - DCIT. (b) That without prejudice to Ground No. 2(a) and on facts and in circumstances of case, action of Ld. CIT(A) to confirm disallowance U / s 43B of Income Tax Act, 1961 is erroneous, arbitrary and bad even on merit. AY 2011-12 3. (a) That on facts and in circumstances of case, Ld. CIT(A) is wrong and unjustified in confirming disallowance of Bonus, leave salary etc of Rs. 12,79,715/- U/s 43B of Income Tax Act, 1961 without proper appreciation of ratio of decision of ITAT, Special Bench, Mumbai in All Cargo Global Logistics Ltd. - Vs - DCIT. (b) That without prejudice to Ground No. 3(a) and on facts and in circumstances of case, action of Ld. CIT(A) to confirm disallowance U / s 43B of Income Tax Act, 1961 is erroneous, arbitrary and bad even on merit. 5.2. ld AR argued that at time of signing of tax audit report, bonus and leave salary were not paid and accordingly tax auditor had reported that same were not paid by assessee. But same were paid by assessee before due date of filing return of income which may kindly be directed to be verified by ld AO and accordingly decide issue. ld DR fairly agreed for this verification by ld AO. 5.3. We have heard rival submissions. We find that matter requires to be verified by ld AO with regard to actual date of remittance of aforesaid expenditure which would have bearing on allowability of expenditure in terms of section 43B of Act. We direct ld AO to verify same and decide issue in accordance with law. Accordingly, these grounds are allowed for statistical purposes. 6. Ground No. 3 for Asst Year 2010-11 and Ground No. 4 for Asst Year 2011-12 are general in nature and does not require any adjudication. 15 IT(SS)A No. 08 to 13/Kol/2015 Rahee Track Technologies Pvt. Ltd., AY 2006-07 to 2011-12 7. To sum up, Assessee appeals for Asst Years 2006-07 to 2009-10 are allowed Assessee appeals for Asst Year 2010-11 and Asst Year 2011-12 are allowed for statistical purposes. Order pronounced in open court on 07.10.2016 Sd/- Sd/- (S.S. Viswanethra Ravi) (M. Balaganesh) Judicial Member Accountant Member Dated : 7th October, 2016 Jd.(Sr.P.S.) Copy of order forwarded to: 1. APPELLANT Rahee Track Technologies Pvt. Ltd.N.H. 6, P.O. Argori, Vill Jangalpur, Howrah-711302 2 Respondent DCIT, CC-XXI, Kolkata. 3. CIT(A), Kolkata 4. CIT , Kolkata 5. DR, Kolkata Benches, Kolkata /True Copy, By order, Asstt. Registrar. Rahee Track Technologies Pvt. Ltd. v. Deputy Commissioner of Income-tax, Central Circle-XXI, Kolkata