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TMI Blog2017 (12) TMI 1157X X X X Extracts X X X X X X X X Extracts X X X X ..... jay Shree Ltd [2011 (9) TMI 30 - CALCUTTA HIGH COURT], we hold that the Assessee is entitled to claim deduction as per 1st proviso to Section 43B of the Act and the order of the CIT-A is justified and needs no interference. Therefore, the employees’ contribution to PF can be paid before the due date of filing of return of income. We find no infirmity in the impugned order of the CIT-A and it was justified. - Decided against revenue - ITA No. 1401/Kol/2015 - - - Dated:- 6-12-2017 - Shri P.M. Jagtap, Accountant Member And Shri S.S.Viswanethra Ravi, Judicial Member For The Appellant : Shri Kalyan Nath,Addl.CIT, ld.Sr.DR For The Respondent : None appeared ORDER Shri S.S.Viswanethra Ravi, JM: This appeal by the Revenue is against the order dt. 04-09- 2015 of the CIT-A, 4, Kolkata for the A.Y 2012-13 in allowing the relief to the assessee on the issue of depreciation/PF contribution. 2. It is noticed that neither the assessee nor any one appeared for the assessee nor any application filed seeking adjournment. Therefore, we proceed to hear the ld.DR for the appellant and dispose of the appeal on merits and by perusing the material available on record. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Apex Court in the case of Union of India and Others vs. Kamlakshi Finance Corporation reported in AIR 1992 SC 711 as referred to by the AR has also been considered. I find the findings of the AO on this point in his order to be not in consonance with the decision of the Hon'ble Mumbai Tribunal in case of CIT v M/s. Brinks Arya India Pvt. Ltd. [I.T.A. No. 8455/Mum/2010 supra. Therefore, going by the judicial precedence. I do not find any avenue to sustain the action of the AO in charging 15% as depreciation on the vehicles used for the purpose as discussed in the foregoing as against the claim @ 30% by the appellant. In view of this the AO is directed to apply the rate of 30% on account of depreciation on the vehicles as discussed in the foregoing. The addition made on this count is deleted. This ground is therefore allowed. 7. Before us the ld. DR relied on the order of the AO in adopting the rate of deprecation @ 15% on WDV of motor cars. He also submits that the CIT-A has erred in allowing the same @ 30% instead of 15% as applied by the AO. 8. Heard the ld. DR and perused the record. We find that the case law relied on by the assessee in the case of Magma Fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also held that amounts on account of Employees Contribution to Provident Fund were deposited well before the date of filing of return of income u/s. 139(1) of the Act and directed to be deleted on this issue. 13. Before us the ld. DR relied on the order of the AO in making the impugned addition on this issue. He also relied on the judgment of Hon ble Gujarat High Court in the case of CIT Vs. GSRTC and prayed to allow the appeal of revenue. 14. Heard the ld. DR and perused the record. We find that the issue in hand is squarely covered by the decisions of the Hon ble Supreme Court and High Court of Calcutta High Court in the cases of Vinay Cement Ltd, Alom Extrusions Ltd reported in (2009) 313 ITR (St.1)(SC), in (2009) 319 ITR 306(SC) respectively and Vijay Shree Ltd. We find that the impugned amount towards employees contribution to Provident Fund were deposited well before the due date of filing of return. We find that the Hon ble High Court of Calcutta in the case of Vijay Shree Ltd supra has upheld the finding of the Tribunal basing on same identical facts on the ratio of decision as laid down by the Hon ble Supreme Court in the case of Alom Extrusion Ltd reported in 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egislations by delaying payment of contributions to the welfare funds. However, as stated above, the second proviso resulted in implementation problems, which have been mentioned hereinabove, and which resulted in the enactment of Finance Act, 2003, deleting the second proviso and bringing about uniformity in the first proviso by equating tax, duty, cess and fee with contributions to welfare funds. Once this uniformity is brought about in the first proviso, then, in our view, the Finance Act, 2003, which is made applicable by the Parliament only with effect from 1st April, 2004, would become curative in nature, hence, it would apply retrospectively with effect from 1st April, 1988. Secondly, it may be noted that, in the case of Allied Motors (P) Limited vs. Commissioner of Income Tax, reported in [1997] 224 I.T.R.677, the Scheme of Section 43-B of the Act came to be examined. In that case, the question which arose for determination was, whether sales tax collected by the assessee and paid after the end of the relevant previous year but within the time allowed under the relevant Sales Tax law should be disallowed under Section 43-B of the Act while computing the business income of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontention of the Department is to be accepted that Finance Act, 2003, to the above extent, operated prospectively. Take an example - in the present case, the respondents have deposited the contributions with the R.P.F.C. after 31st March [end of accounting year] but before filing of the Returns under the Income Tax Act and the date of payment falls after the due date under the Employees' Provident Fund Act, they will be denied deduction for all times. In view of the second proviso, which stood on the statute book at the relevant time, each of such assessee(s) would not be entitled to deduction under Section 43-B of the Act for all times. They would lose the benefit of deduction even in the year of account in which they pay the contributions to the welfare funds, whereas a defaulter, who fails to pay the contribution to the welfare fund right upto 1st April, 2004, and who pays the contribution after 1st April, 2004, would get the benefit of deduction under Section 43-B of the Act. In our view, therefore, Finance Act, 2003, to the extent indicated above, should be read as retrospective. It would, therefore, operate from 1st April, 1988, when the first proviso was introduced. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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