- (1.) The Court : This appeal is directed against a judgement and order dated 26th November, 2010 passed by the learned Income Tax Appellate Tribunal, "B" Bench, Kolkata in ITA 1620/Kol/2008 and ITA 1721 (Kol)/2008 both pertaining to the assessment year 2004 -05. What had happened was that the earlier appeal was an appeal by the assessee and the subsequent appeal was an appeal by the revenue. Both the appeals were disposed of by the impugned judgement and order. The assessee has once again come up in appeal.
(2.) At the time of admission of the appeal, three questions were formulated, of which two are relevant for our purpose as submitted by Mr. Bajoria, learned Senior Advocate appearing on behalf of the assessee, which are as follows : "1. Whether the learned Tribunal below committed substantial error of law in holding that the appellant was not entitled to deduction under section 36(1)(va) of the employees' contribution to the provident fund as the said amount had not been paid within the due date but before the filing of the return under section 139(1) in view of the proviso to Section 43B by taking a view which is contrary to the decision of the Supreme Court in the case of Commissioner of Income Tax vs. alom Extrusions Ltd. reported in (2009) 319 ITR 306. 3. Whether the learned Tribunal below committed substantial error of law in reversing the finding of the CIT(Appeals) on the question of transaction cost on capital gain on sale of property which is a perverse finding of fact without any material or evidence."
(3.) Both Mr.Dutta, learned advocate for the revenue and Mr.Bajoria, learned Senior Advocate appearing for the assessee submitted that the first question is already covered by a judgement of this court in the case of Commissioner of Income Tax, Circle -I, Kolkata vs. M/s.Vijay Shree Limited (ITAT NO.245 OF 2011, G.A.NO.2607 OF 201) against the revenue. In that view of the matter, the question no.1 is answered in the affirmative and against the revenue.;