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TMI Blog2018 (8) TMI 1184X X X X Extracts X X X X X X X X Extracts X X X X ..... ution and Rs. 60,982/- of PF Contribution which is paid before the due date of filing of the return. 2. The ld. CIT(A) ought to have restricted the disallowance of car depreciation as personal use to the extent of 1/5th instead of 1/10th." Additional Ground of appeal: "The ld. CIT(A) has erred in confirming disallowance being 1/10th of vehicle depreciation on the ground that it is personal in nature in as much as in case of the assessee company there is no question of any personal expense." 3. The first issue raised by the assessee in this appeal is that ld.CIT(A) erred in confirming the order of AO by sustaining the disallowance of Rs. 3,04,007.00 u/s 36(1)(va) r.w.s. 2(24)(x) of the Act. 4. Briefly stated facts are that the assessee is a private limited company and engaged in the business of Manufacturing and Trading of Pharmaceutical Products. The AO during assessment proceedings observed that the assessee failed to deposit the employee's contribution to PF/ESI within the due date as specified under the relevant Act, Rule or Notification issued thereunder. Therefore, the AO disallowed the same after having reliance on the judgment of Hon'ble Gujarat High Court, in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f PF/ESI is to be disallowed, in terms of Hon'ble Gujarat High Court's judgment in the case of Gujarat State Road Transport Corporation (supra), the question as to whether there is a delay or not may be decided by the Assessing Officer in the light of above observations by the coordinate bench. The assessee will get relief, if found admissible, on that basis. 5. In the result, appeals of the assessee are allowed for statistical purposes. Pronounced in the open court today on the 27th June, 2018." In view of the above, the AR for the assessee before us submitted that the matter could be restored back to the file of AO for fresh adjudication in terms of the above the above order. On the other hand, ld DR submitted that the jurisdictional ITAT in the case of Suzlon Energy Ltd. (supra) has relied on the order of Hon'ble ITAT, Kolkata Benches in the case of Kanoi Paper & Industries Ltd. vs. ACIT reported in 75 TTJ 448, wherein, the issue was decided with regard to employees provident fund. As such, there was no issue about the payment of employee's contribution towards ESI. Therefore, the disallowance of the contribution towards ESI should be seen from the month in which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... count / ESI Account made by the AO as, as such, such sums were not credited by the respective assessee to the employees' accounts in the relevant fund or funds (in the present case Provident Fund and/or ESI Fund on or before the due date as per the explanation to section 36(1)(va) of the Act i.e. date by which the concerned assessee was required as an employer to credit employees' contribution to the employees' account in the Provident Fund under the Provident Fund Act and/or in the ESI Fund under the ESI Act." However, the ld. AR before us has submitted that the due date for depositing the employee's contribution towards PF/ESI should be seen from the date of the payment and not from the due date. In this regard, we note that the Jurisdictional Tribunal in the identical facts and circumstance in the case of Suzlon Energy Ltd.(supra) has restored this issue to the file of the AO for fresh adjudication. Therefore, respectfully following the same we are inclined to restore the issue on hand to the file of AO for fresh adjudication and in accordance to the provision of law as well as after considering the order of this Tribunal in the case of Suzlon Energy Ltd. (Supra). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the year can be made. The ld. AR in support of his claim relied on the judgment of Hon'ble Gujarat High Court in the case of Sayaji Iron & Engg. Co. vs. CIT reported in 121 taxman 43. On the other hand, the ld DR vehemently supported the order of authorities below. 10. We have heard the rival contentions and perused the materials available on record. The issue in the instant case relates to the disallowance made by the AO for the depreciation on the vehicles on account of personal use. The assessee during the assessment proceedings failed to furnish the details for the usage of the vehicles. Therefore, the AO disallowed 10% of the depreciation claimed by the assessee. The Ld. CIT-A subsequently confirmed the view taken by the AO. It is an undisputed fact that the assessee has not furnished any supporting evidence justifying the usage of the vehicles. Therefore, the depreciation to the tune of 10% of the total amount was disallowed. However we note that there cannot be the question of any personal use of the vehicles in the case body corporate as held by the Hon'ble jurisdictional High Court in the case of Sayaji Iron & Engg. Co.(supra) wherein it was held as under : "There was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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