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Income Tax Appellate Tribunal, “D” BENCH: KOLKATA
The appeal filed by the revenue is against the order of Ld. CIT(A)-4, Kolkata dated 12.08.2016 for AY 2013-14.
Ground no. 1 of the revenue’s appeal reads as under:
1. Whether the Ld. CIT(A) was correct in allowing 30% of depreciation as claimed by the assessee despite the fact that the motor cars other than those used in a busin4ess of running them on hire, acquired or put to use on or after the 1st day of April, 1990 are entitled for depreciation @ 15% vide clause 2 under Schedule-III of Part A of the new Appendix-1 effective from AY 2006-07 read with Rule-5 of the I. T. Rules, 1962 notwithstanding the fact that the assessee used the motors cars in its own business?
We have heard rival submissions and gone through the facts and circumstances of the case. We note that the assessee claimed depreciation on motor car @ 30% but the AO
S&IB Services Pvt. Ltd., AY- 2013-14 restricted the same @ 15% on the ground that the main business of the assessee was not plying of motor cars or running them on hire. On appeal, the Ld. CIT(A) allowed the depreciation @ 30% on the vehicles as claimed by the assessee by following the decision of earlier year i.e. AY 2012-13 vide order dated 04.09.2015 in 10/Kol/14-15 which was also supported by the decision of Mumbai Tribunal in the case of CIT Vs. M/s. Brinks Arya India Pvt. Ltd. in ITA No. 8455/Mum/2010, Hon’ble Apex court Judgment in the case of Union of India & Ors. Vs. Kamlakshi Finance Corporation AIR 1992 SC 711. Aggrieved, revenue is before us.
We find that the factual finding as recorded by the Ld. CIT(A) was not controverted by the Ld. DR before us by providing any material, therefore, we do not find any justification to interfere in the aforesaid order of the Ld. CIT(A) and hence, the same is hereby confirmed. This ground of appeal of revenue is, therefore, dismissed.
5. Ground no.2 of revenue’s appeal is as under:
2. Whether the Ld. CIT(A) was correct in deleting the addition of Rs.30,87,301/- without appreciating that the employees’ contribution has to be deposited within the due date by which the assessee was required as employer to credit the employees contribution to the employees’ account in the relevant fund under any Act or Rule?
Brief facts of the case are that the AO made the disallowance of Rs.30,87,301/- by invoking sec. 36(1)(va) r.w.s. 2(24)(x) of the Income-tax Act, 1961 (hereinafter referred to as the “Act”) on account of making payment for the employee’s PF & ESI after the due date. On appeal, the Ld. CIT(A) deleted the disallowance on the ground that the contribution was claimed to have been deposited before the due date as provided u/s. 139(1) of the Act for filing return. Aggrieved, revenue is before us.
We have heard rival submissions and gone through facts and circumstances of the case. We find that the employees’ PF and ESI payments are within the due date of filing of return of income by the assessee u/s. 139(1) of the Act and once these payments are within the said due date, the issue is covered by the judgment of jurisdictional High Court in the S&IB Services Pvt. Ltd., AY- 2013-14 case of CIT Vs. M/s. Vijay Shree Limited vide ITAT No. 245 of 2011 in GA No.2607 of 2011 dated 7th September, 2011, wherein it has been held as under: “After hearing Mr. Sinha, learned advocate, appearing on behalf of the appellant and after going through the decision of the Supreme Court in the case of Commissioner of Income Tax vs. Alom Extrusion Ltd., we find that the Supreme Court in the aforesaid case has held that the amendment to the second proviso to the Sec. 43(B) of the Income Tax Act, as introduced by Finance Act, 2003, was curative in nature and is required to be applied retrospectively with effect from 1st April, 1988. Such being the position, the deletion of the amount paid by the Employees’ contribution beyond due date was deductible by invoking the aforesaid amended provisions of Section 43(B) of the Act. We, therefore, find that no substantial question of law is involved in this appeal and consequently, we dismiss this appeal.”
We note that the issue before us is no longer res integra because it has been decided by Hon’ble jurisdictional High Court in the case of Vijay Shree Ltd. Supra, that in case the assessee remitted the PF & ESI on or before the due date of filing of return u/s. 139(1) of the Act, deduction in respect to the remitted amount of PF & ESI deducted on account of employee’s contribution before due date of filing of return u/s. 139(1) of the Act, hence, we do not find any infirmity in the order of the Ld. CIT(A) which we uphold and, therefore, we dismiss this ground of appeal of revenue.
In the result, appeal of revenue is dismissed.
Order is pronounced in the open court on 14.02.2018
Sd/- Sd/- (J. Sudhakar Reddy) (Aby. T. Varkey) Accountant Member Judicial Member
Dated : 14th February, 2018 Jd.(Sr.P.S.)
S&IB Services Pvt. Ltd., AY- 2013-14 Copy of the order forwarded to:
Appellant – ACIT, Circle-10(2), Kolkata. 2 Respondent – M/s. S & I B Services Pvt. Ltd., 1, Adyanath Saha Road, Kolkata-700 048. 3. The CIT(A) Kolkata