2007 (8) TMI 644 - AT - Income Tax

Summary

Issues Involved:
1. Taxability of insurance claim u/s 41(2) of the Income-tax Act, 1961.
2. Disallowance u/s 43B read with section 36(1)(va) for delayed payments towards provident fund and Employees State Insurance Scheme.
3. Disallowance u/s 35D for pre-operative expenses.

Summary:

1. Taxability of Insurance Claim u/s 41(2):
The primary issue was whether the sum of Rs. 2,25,37,301 received by the assessee as an insurance claim should be taxed u/s 41(2) of the Income-tax Act, 1961. The assessee argued that the depreciation was claimed under clause (ii) of section 32(1) and not under clause (i), hence section 41(2) was not applicable. The Tribunal agreed with the assessee, stating that section 41(2) applies only to cases where depreciation is claimed under clause (i) of section 32(1) effective from April 1, 1998. Since the depreciation was claimed under clause (ii) in the assessment year 1996-97, section 41(2) could not be invoked. Consequently, the addition of Rs. 2,25,37,301 was deleted.

2. Disallowance u/s 43B read with section 36(1)(va):
The issue pertained to the disallowance of Rs. 3,40,770 for payments made towards provident fund and Employees State Insurance Scheme beyond the due dates. The Tribunal held that payments made within the grace period are allowable as deductions u/s 43B and section 36(1)(va), supported by the judgment of the Madras High Court in CIT v. Shri Ganapathy Mills Co. Ltd. Consequently, the disallowance was restricted to Rs. 51,268, which was the amount paid beyond the grace period.

3. Disallowance u/s 35D for Pre-operative Expenses:
The Revenue's appeal involved the disallowance of Rs. 3,00,818 u/s 35D, which was deleted by the Commissioner of Income-tax (Appeals). The Tribunal noted that if the expenditure is not covered by section 35D, it could not be allowed in the year under consideration as it was incurred in the assessment year 1996-97. The Tribunal held that the maximum allowable deduction u/s 35D was 2.5% of the total project cost, which was Rs. 7,50,000, and only 1/10th of this amount could be allowed annually. Therefore, the disallowance of Rs. 3,00,818 by the Assessing Officer was restored.

Conclusion:
The appeal of the assessee was partly allowed, and the appeal of the Revenue was allowed. The order was pronounced on August 28, 2007.