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Assessment Years referred to supra and it is noticed that the learned CIT(A) has followed judicial discipline in following the decision of the Co-ordinate Bench of this Tribunal, we find no reason to interfere in the order of the learned CIT(A) on this issue. Consequently, Ground No.2.1 to 2.3 of the Revenue's appeal stands dismissed.
In respect of Ground No.3.1 and 3.2, it was submitted that the ground was against the action of the learned CIT(A) in deleting the disallowance made u/s.40A(9) in respect of the assessee's contribution to the benevolent fund. It was fairly agreed by both the sides that the issue was squarely covered by the decision of the Co-ordinate Bench of this Tribunal in the assessee's own case referred to supra, wherein in page 25, paragraphs 12 to 12.4 it has been held as follows:
"12. The first common ground raised in the appeals of the Revenue is that the ld. CIT(A) has erred in directing the Assessing Officer to allow the contribution to benevolent fund under section 40A(9) of the Act.
12.1 In the assessment year 2003-04, the assessee has contributed an amount of ₹.1,14,114/- to a benevolent fund for the welfare of the employees. In the assessment order, the Assessing Officer has observed that as per provisions of section 40A(9) of the Act, no deduction should be allowed in respect of any sum paid by the assessee as an employer except in the case of recognized Provident Fund/Superannuation Fund or approved Gratuity Fund. As the assessee has contributed to a benevolent fund for the welfare of the employees which is neither a recognized provident fund nor an approved gratuity fund, the claim is not in accordance with the law. During the course of assessment proceedings, the assessee contended that an identical issue has been allowed in its favour in the appellate forum in its own case. However, the Assessing Officer has not accepted the submissions of the assessee since the fact remains that the issue has not reached finality.
decided the issue in favour of the assessee and the addition of ₹.1,14,115/- made by the Assessing Officer was deleted.
12.3 Aggrieved, the Revenue is in appeal before the Tribunal. Against the above deletion of addition under section 40A(9) of the Act, the Revenue has filed appeals for the assessment years 2004-05, 2005- 06, 2006-07 and 2007-08.
12.4 We have heard rival contentions and perused the materials available on record. Against the claim of the assessee towards contribution to benevolent fund, the Assessing Officer has made addition under section 40A(9) of the Act in the assessment year 1998-
99. By following the decision of Coordinate Bench of the Tribunal in the case of India Pistons Repco v. IAC 26 ITD 413), the ld. CIT(A) directed the Assessing Officer to allow contribution made by the assessee to benevolent fund by observing as under:
"5. I have carefully considered the facts of the case, case laws and the submissions of the Id. AR. It is clear that Memorandum of Settlement was executed in terms of section 18(1) of the Industrial Dispute Act, 1947 and is binding on both the parties i.e. the employer and the workmen. The contribution to the benevolent fund was made in terms of clause 3 of the said Memorandum of Settlement. Thus the fund was not created suo- mote by the appellant but was based on the Memorandum of Settlement between the employer and the workmen in terms of section 18(1) of the Industrial Dispute Act, 1947. The case relied by the Ld. AO supra is also not applicable to the case in hand as it pertained to payment of commission to managing agent. It was held in the said case by the Hon'ble Supreme Court that in view of section 326 of the Companies Act, 1956, which contained an absolute prohibition against the appointment or reappointment of a managing agent before approval of the Central Government was obtained, the appellant company's liability to pay the remuneration of the managing agents arose only when the Government conveyed its approval and not prior to that date. The facts of the appellant's case are different. In the present case the payment has been made pursuant to the Memorandum of Settlement u/s 18(1) of the Industrial Dispute Act, 1947. Further section 29 of the Industrial Dispute Act, 1947 prescribes penalty for any person breaching the settlement. Further, the Chennai Tribunal, in the case of India Pistons Repco Ltd v. lAC (Mad) (26 ITD 413), held that contribution made by the assessee towards the Death Relief Fund constituted under a memorandum of settlement u/s 18(1) of the Industrial Dispute Act between the assessee and the workmen was an allowable deduction inspite of Provisions of section 40A(9). I n view of the above reasons, the contention of the appellant that contribution made by it to the Benevolent Fund constituted under a memorandum of settlement u/s 18(1) of the Industrial Act is statutory in nature and hence covered by exception provided under section 40A(9) is acceptable. Accordingly, I direct the AO to allow contribution of Rs.97,335/- made by the appellant to the Benevolent Fund. The appellant, therefore, succeeds on this ground."