TMI Blog2011 (4) TMI 1345X X X X Extracts X X X X X X X X Extracts X X X X ..... ution to PF deducted and not paid before the due date but paid before filing of the return. 2.2 In appeal, the CIT(A) upheld the action of the Assessing Officer for which the assessee is in appeal before us. 3 The ld counsel for the assessee, referring to the decision of the Tribunal in the case of Metro Entertainment (Bombay) Pvt Ltd vs ITO vide ITA No.1970/Mum/209 order dated 16.2.2010 for Assessment Year 2004-05 submitted that the Tribunal after considering the decision of the Hon ble Supreme Court in the case of CIT vs Alom Extrusions Ltd reported in 319 ITR 306(SC) and the decision of the Hon ble Delhi High Court in the case of CIT vs AIMIL Ltd reported in 321 ITR 508 has held that employees contribution towards PF and ESIC etc., deposited after the due date but before the time allowed for filing of return u/s 139(1) will not call for any disallowance u/s 36(1)(va) of the Act. Referring to the decision of the Hon ble Karnataka High Court in the case of CIT vs Sabari Enterprises reported in (2008) 298 ITR 141, he submitted that the Hon ble High Court has held that contributions made by the assessee to PF and ESIC were allowable deduction even though these were made beyond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Explanation to sec. 36(1)(va) of the Act. Accordingly, the order of the CIT(A) on this issue is set aside and the ground raised by the assessee is allowed. 7 Ground of appeal no.3 by the assessee reads as under: On the facts and in the circumstances of the case, the ld CIT(A) erred in upholding the decision of the Assessing Officer of allowing depreciation on Dumpers @ 25% only, as against 50% claimed by the appellant, being new commercial vehicles as per clause III(3)(vi) of Old Appendix r.w.r of the I T Rules 1962.. 7.1 Facts of the case, in brief, are that the assessee claimed depreciation @ 40% and 50% on commercial vehicles respectively as per the chart showing working of depreciation furnished along with the tax audit report. On being questioned by the Assessing Officer to substantiate the claim of higher rate of deprecation on dumpers which according to him are not commercial vehicles, the assessee replied that depreciation has been claimed @ 40% and 50% on commercial vhicle acquired during the FY 1989-99 to 2001-02 respectively. Such claim is as per clause III-(3) of the Depreciation rates. The definition of commercial vehicle was also explained to the Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts of the present case since in that case the issue was the claim of investment allowance u/s 32A in respect of Dumpers used in the business of mining operations. Here, the dumpers are not used for mining business and there is no claim of investment allowance. Accordingly, the order of the CIT(A) on this issue is set aside and the Assessing Officer is directed to allow depreciation on Dumpers at the rate applicable to new commercial vehicles as claimed by the assessee. The ground raised by the assessee is accordingly allowed. 11 Ground of appeal no.4 by the assessee reads as under: On the facts and in the circumstances of the case, the ld CIT(A) erred in upholding the disallowance of penalty of ₹ 47,235/-. 12 At the time of hearing, the ld counsel for the assessee did not press this ground due to smallness of the amount. The ld DR has no objection for the same. Accordingly, this ground of the assessee is dismissed as not pressed. 13 Ground of appeal no.5 by the assessee reads as under: On the facts and in the circumstances of the case, the ld CIT(A) erred in upholding the decision of the Assessing Officer to dismiss the claim of the appellant for deduction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ides, we find this ground by the assessee is identical to the grounds of appeal no.1 in ITA No.5149/Mum/2007. We have already decided this issue and the ground raised by the assessee has been allowed. Following the same ratio, this ground is also allowed. 22 Grounds of appeal no.2 reads as under: On the facts and in the circumstances of the case, the CIT(A) erred in upholding the decision of the AO of disallowing prior period expenses of ₹ 93,00,907/- 23 After hearing both the parties, we find the prior period expenditure of ₹ 93,00,907/- has been disallowed in Assessment Year 2004-05 and the same has been directed to be allowed in Assessment Year 2003-04 as per the additional ground raised in ITA No.5149/Mum/2007. Accordingly, this ground is dismissed. 24 Ground of appeal no.3 by the assessee reads as under: On the facts and in the circumstances of the case, the ld CIT(A) erred in upholding the decision of the Assessing Officer of allowing depreciation on Dumpers @ 25% only, as against 50% claimed by the appellant, being new commercial vehicles as per clause III(3)(vi) of Old Appendix r.w.r of the I T Rules 1962.. 25 After hearing both the sides ..... 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