आदेश/ORDER 

PER WASEEM AHMED, ACCOUNTANT MEMBER:

The captioned Cross appeals have been filed at the instance of the Assessee and Revenue against the order of the Commissioner of Income Tax (Appeals)- 9, Ahmedabad[CIT(A) in short] vide appeal no.CIT(A)- 9/406/DCIT Cir-8/14-15 dated 04/03/2015 arising in the matter of assessment order passed under s.143(3) of the Income Tax Act, 1961 (here-in-after referred to as "the Act") dated 28/02/2013 relevant to Assessment Year (AY) 2010-11.

2. First, we take assessee appeal in ITA No.1777/Ahd/2015 for A.Y. 2010-2011. The assessee has raised following grounds of appeal. 

‘’On the facts and circumstances of the case, the Hon"ble Members may kindly be pleased to hold that the addition made by the Learned Assessing Officer and confirmed by the Ld. CIT (Appeals)-9 is bad in law and on facts, on due appreciation of any one or more of the following contentions:

1. To delete the disallowance of late payment of employees’ contribution of PF of Rs.97,601/-

(i) That the Appellant Company has made the payment of employee’s contribution of PF of Rs. 97,601/-. The said payment was deposited by little delay of 1 - 2 days with respective department.

(ii) That in view of recent judgement of Hon’ble Supreme Court in the case of CIT Vs. Alom Extrusion Ltd. ( 319 ITR 306 ) even Deposit of Employee’s contribution towards ESI & PF before due date of filing of Income Tax Return is allowable expenses and cannot be treated as income of the Assessee U/s.36(l)(va) r.w.s. 2(24)(x).

(iii) That the judgement relied on by the Assessing Officer are of lower authority i.e. Tribunal and it appears before them, the decision of Hon’ble Supreme Court and various High Courts were not placed.

(iv) That disallowance made by the A.O. for delay in depositing of employees’ contribution should be allowed in full.

To delete disallowance of Commission of Rs.6,58,680/-

1. That the A.O. has arbitrarily disallowed the Commission expenses Rs.6,58,680/-.

2. That the Assessing Officer has ignored the basic requirements of Section 37(1) and arbitrarily made disallowance of expenses which is required to be deleted in full.

That your Honour may kindly be pleased to grant such further or alternative reliefs as are just and equitable on due appreciation of facts submitted & filed before your Honour and further it craves your Honour’s leave to add or amend any of the grounds of appeal either before or in the course of hearing.’’

3. The first issue raised by the assessee is that Ld.CIT(A) erred in confirming the disallowance made by the AO for Rs.97,601/- on account of delay in the deposit of employee’s contribution towards ESI and PF.

4. At the outset, Ld.AR for the assessee fairly conceded that the issue stands covered against the assessee by the judgment of Jurisdictional High Court in the case of Gujarat State Road Transport Corporation, 366 ITR 170. The jurisdictional High Court in the above case held that where assessee did not deposit employees' contribution in the relevant fund before the due date prescribed in Explanation to section 36(1)(va), no deduction would be admissible even though he deposits same before due date under section 43B. Hence we are not inclined to interfere in the order of the Revenue authorities on this issue. Thus the ground of appeal of the assessee is dismissed.

5. The second issue raised by the assessee is that Ld.CIT(A) erred in confirming the disallowance of Commission expenses for Rs.6,58,680/-

5.1. The assessee during the year has paid commission to 3 parties amounting to Rs.6,58,680/- only. The commission was paid in connection with the purchases of cotton through the involvement of commission agents.

5.2 The assessee in support of such commission expenses filed a copy of the ledger, pan, form 16A showing amount of TDS deducted, debit notes issued by the commission agents and details of purchases in respect of which the commission was paid.

5.3 However, the AO found that there was no agreement between the assessee and the com