John Oakey & Mohan Ltd.Employees Provident Fund Trust Mohan Nagar Ghaziabad vs. ITO, Ward 4(2) New Delhi
January, 30th 2014
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCHES : "E" NEW DELHI
BEFORE SMT. DIVA SINGH, JM AND
SHRI J.SUDHAKAR REDDY, A.M.
ITA no. 367/Del/2013
Assessment Year : 2009-10
John Oakey & Mohan Ltd. vs. ITO, Ward 4(2)
Employees Provident Fund Trust New Delhi
PAN: AAACJ 1608 A
Appellant by:- Shri C.S.Aggarwal, Sr.Counsel
Shri Ravi Pratap Mall, Adv.
Respondent by:- Shri Keyur Patel, Sr.D.R.
PER J.SUDHAKAR REDDY, AM
This is an appeal filed by the assessee directed against the order of the
Ld.Commissioner of Income Tax (Appeals)-VIII, New Delhi dated 18.10.2012
pertaining to the AY 2009-10 on the following revised grounds.
1. That the learned CIT(A) has erred both on facts and in law in upholding the
order of the assessment.
2. That the learned CIT(A) has erred both on facts and in law in upholding
the findings of the A.O. in treating John Oakey & Mohan Limited
Employees Provident Fund Trust as unrecognized on an assumption that
the assessee had not made compliance to the provisions of Sub-Rule 5 of
Rule 77 of the Income Tax Rules 1962. Such a finding of learned A.O. and
learned CIT(A) were erroneous when it overlooked the fact that, the
assessee had filed an application for recognition of provident fund trust,
in Form No. 40C of the Income Tax Rules and was pending with the CIT
the prescribed authority.
3. That the learned CIT(A) has further erred in upholding the addition made
by the learned A.O. of Rs. 11,85,747/- representing an interest earned on
investment on the basis that the provident fund trust was not recognized.
3.1 That the learned CIT(A) has overlooked the provisions of section 10(25) of
the Act before sustaining the addition of Rs. 11 ,85,7471- and ignoring the
factual substratum of the case.
4. Further, the learned CIT(A) has erred in upholding the addition made on
account of interest distributed to the members out of the income earned of
Rs. 11,85,7471- since he treated the trust as unrecognized.
4.1 The findings of the learned A.O. and learned CIT(A) in the order of
assessment and appellate order both are misconceived and contrary to
the evidence on record and the statutory provisions.
5. That in any case and without prejudice, on one hand the learned CIT(A)
upheld the addition made of Rs. 11,85,747/- and on the other hand again
brought to tax Rs. 11,75,9001-. The said action in sustaining both the
additions are erroneous when none of them were sustainable both on facts
and in law.
6. That the learned CIT(A) has further erred in sustaining an addition of Rs.
11,75,900/- paid as interest on incorrect assumption of fact and in law
7. That, the learned CIT(A) has erred in confirming the addition ofRs.
25,65,0001- the non-refundable loans on the ground that, funds has been
treated as unrecognized by the A.O. The learned CIT(A) has overlooked
that the assessee did comply with the statutory provisions of law. Further
in sustaining the addition learned CIT(A) has completely overlooked the
facts on record.
8. That the learned CIT(A) has erred in holding that the assessee had failed
to comply with the provisions laid down in Rule 74(4) of the Income Tax
Rules and in any case and without prejudice the same could not have
been held as sufficient to hold that the amounts aggregating to Rs.
49,26,6471- is income taxable of the assessee for the instant
9. In any case and without prejudice addition sustained by the learned
CIT(A) aggregating to Rs. 49,26,647/- be directed to be deleted and it be
held that, the learned A.O. had misconceived the facts.
2. The Ld.Counsel for the assessee moved an application u/s 29 of the
Income Tax Appellate Tribunal Rules, 1963 for the admission of additional
evidence, which is an order of the Ld.CIT(A) dated 24.10.2013, wherein he
being the prescribed authority, granted recognition to the assessee as a
recognized Provident Fund. It was submitted that the said order was passed
on 24.10.2013 i.e. after the disposal of the appeal by the Ld.CIT(A) on
18.10.2012 and as such the assessee could not file the above order of Ld.CIT
and the Ld.Commissioner of Income Tax (Appeals) had no benefit of this order.
3. The Ld.D.R. opposed the contentions of the assessee and submitted that
this additional evidence should not be admitted.
4. After hearing rival contentions we are of the considered opinion that this
is a fit case for admission of additional evidence in the form of an office order
dt. 24.10.2013, wherein the Ld.CIT(A), Delhi II, New Delhi accorded recognition
of the assessee's P.F.Trust with effect from 1st April,2007. This order goes to
the root of the matter. Hence we admit the same and restore the issue to the
file of the AO to take into consideration this new development and adjudicate
the issue de novo in accordance with law.
5. In the result the appeal of the assessee is allowed for statistical
Order pronounced in the Open Court on 23rd January, 2014.
(DIVA SINGH) (J.SUDHAKAR REDDY)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Dated: the 23rd January, 2014
Copy of the Order forwarded to:
1. Appellant; 2.Respondent; 3.CIT; 4.CIT(A); 5.DR; 6.Guard File