TMI Blog2001 (11) TMI 257X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2. The learned CIT(A) erred in directing to reduce the excess depreciation added back amounting to Rs. 31,69,163 for the purpose of s. 115J. As per the provisions of Companies Act, the depreciation has to be worked out only on the pro rata basis. If this is done, depreciation will be less by Rs. 31,69,163. 3. The learned CIT(A) erred in directing to exclude excise duty and sales-tax from the turnover for the purpose of s. 80HHC. These clearly form part of the turnover as per the Supreme Court's decision in CIT vs. T. Naggi Reddy (1993) 115 CTR (SC) 418 : (1993) 202 ITR 253 (SC). We have heard the learned Departmental Representative as well as the counsel appearing for the respondent-assessee. 2. So far as Ground No. 1 is concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and not P.F. administrative charges and, therefore, the assessee's claim was not disallowable under the provisions of s. 43B of the Act, as has been held in the aforesaid decision of the Tribunal. 3. After careful consideration of the facts and circumstances of the case, rival submissions and the decisions relied upon by the parties, we are of the opinion that the decision relied upon by the learned Departmental Representative, instead of supporting the Revenue's case, supports the assessee's case because, the contribution towards P.F., etc. in respect of last month of the accounting year could be paid by the 15th of the next month and at the same time the Tribunal Bangalore Bench in the case of Hansur Plywood Works Ltd. having held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ea that s. 115J does not speak of such pro rata basis. 6. After careful consideration of the rival submissions, facts and circumstances of the case and the decision in the case of Vandana Rolling Mills ltd., we are in agreement with the submissions of the learned Departmental Representative that it is the profit arrived at by drawing P L a/c in terms of Parts II and III of Sch. VI to the Companies Act, which has to be considered for the purpose of s. 115J, but at the same time we find from the order of the CIT(A) as well as of the AO that none of the authorities have given a specific finding as to whether the assessee had drawn P L a/c in terms of Parts II and III of Sch. VI to the Companies Act or not. Under these circumstances, we, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. (2000) 163 CTR (Bom) 596 : (2000) 245 ITR 769 (Bom), submitted that the excise duty and sales-tax having no element of profit in them cannot be taken as part of total turnover for the purpose of s. 80HHC, and, therefore, supported the order of the CIT(A). 9. After careful consideration of the facts and circumstances of the case, rival submissions and the decisions relied upon by the parties, we are of the opinion that the decision of the Hon'ble Supreme Court relied upon by the learned Departmental Representative is distinguishable on facts and the issue raised by the Revenue is covered in favour of the assessee and against the Revenue by the decision of Hon'ble Bombay High Court in the case of Sudarshan Chemicals Industries Ltd. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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