TMI Blog2011 (8) TMI 1309X X X X Extracts X X X X X X X X Extracts X X X X ..... n to P.F. following the decision of the Apex Court s decision in the case of Vijay Cement Ltd., 213 CTR 268 (SC) on the ground that the contribution towards P.F. has been made within the due date of filing return of income in terms of section 43B of the4 act. The ld. CIT(A) erred in not appreciating the fact that the provisions section 43B applied to employer s contribution and have no roll in deciding the issue of allowability of employees contribution which is governed by section 36(1)(va) r.w.s. 2(24)(x) of the Act. 2. Facts in brief as emerged from the corresponding assessment order passed u/s.143(3) of the I.T. Act, 1961 dated 04/04/2007 were that the assessee-company is in the business of manufacturing of polymers, compounds, etc. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the provisions of section 36(1)(va) are special provisions, therefore, prevail over the general provisions. Since the amount in question is employees contribution, therefore, the special provisions should apply and the amount should have been paid within the due date as prescribed. Since the payments were made belatedly, therefore, it was rightly disallowed by the Assessing Officer, he has concluded. 4. We have heard the submissions of ld.DR, however, we are governed by a decision of Hon'ble Supreme Court pronounced in the case of CIT vs. Alom Extrusions Ltd. (319 ITR 306) [SC]. Moreover, in a latest decision this controversy has been dealt with by a Respected Coordinate Bench ITAT Ahmedabad Bench D in the case of Agew Steel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1989, the assessees were entitled to deduction only if the contribution stood credited on or before the due date given in the Provident Funds Act. This created further difficulties and on a representation made to the Finance Ministry, one more amendment was made by the Finance Act, 2003. Though this amendment was made applicable with effect from April 1, 2004, the amendment was curative in nature and applied retrospectively with effect from April 1, 1988.It was clarified that when a proviso in a section is inserted to remedy unintended consequences and to make the section workable, the proviso which supplies an obvious omission therein is required to be read retrospectively in operation, particularly to give effect to the section as a wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which are paid after the due date under the PF law but before the due date for filing the return, held that (i) Though the Revenue has argued that a distinction is to be made between employers contribution and employees contribution and that employees contribution being in the nature of trust money in the hands of the assessee cannot be allowed as a deduction if not paid on or before the due date specified in the PF etc law, the scheme of the Act is that employees contribution is treated as income u/s 2 (24) (x) on receipt by the assessee and allowed as a deduction u/s 36 (1) (va) on making deposit with the concerned authorities. S. 43B (b) stipulates that such deduction would be permissible only on actual payment; (ii) The qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the due date of filing of the return u/s 139(1) of the Act. With these directions, ground nos. 1 2 in the appeal are allowed. 5. Respectfully following the aforesaid decision, we find no force in this ground of the Revenue, therefore, Revenue s first ground is dismissed. 6. Ground No.2 reads as under: 2. On the facts and in the circumstances of the case and in law, the ld. CIT(Appeals) erred in deleting the addition on account of disallowance of depreciation of `4,70,305/-, interest on vehicle loan of `87,056/- and, insurance premium on vehicle of `11,769/- without appreciating the fact that the assessee company is not the beneficial owner of the vehicles since the actual transfer of the vehicles were not taken place, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of vehicles for appellant s business. The claim has been disallowed only on the basis of ownership. It has been held by the Apex Court in Mysore Minerals v CIT, 239 ITR 775(SC), that depr4eciation is admissible in case the assessee is beneficial owner of the asset. Even otherwise the appellant has initiated action to transfer the asset in its name and the vehicles are already shown in its books. Ground No.4 is allowed. 9. Having heard the submission of Learned Departmental Representative, we find no force in this ground of the Revenue specially when the facts as well as the evidences have established that the vehicles in question were used for the purpose of the business of the assessee and the same were duly reflected in the books of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
