TaxTMI 
TaxTMI 
2017 (12) TMI 1157
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....mercial purposes. The assessee was asked why such depreciation will not be restricted to 15% on WDV. Before the AO the assessee submitted that motor buses, motor lorries and motor taxies are used in a business running on hire and the assessee is entitled to avail such depreciation @ 30% vide sub-clause (ii) to the clause (3) under Schedule III, Part A of New Appendix, which came into effect from A.Y 2006-07 w.r.t Rule 5 of the IT Rules, 1962. The AO has not accepted such submission of assessee and disallowed @ 15 i.e. at Rs. 18,22,744/- and added the same to the total income of the assessee. 5. Before the CIT-A the ld.AR of the assessee has relied on following case laws in support of the contention:- In the case of Magma Fincorp Ltd Vs. ACIT Reported in (2010) 128 TTJ 715(Kol) of ITAT Kolkta. In the case of CIT Vs. Brinks Arya (I) P.Ltd In ITA No. 8455/Mum/2010 of ITAT Mumbai In the case of Union of India & Ors. Vs. Kamlakshi Finance Corporation Reported in AIR 1992 SC 711 (SC) running , which was used 6. The CIT-A after considering the above case laws and submissions of assessee directed the AO to apply the depreciation @....
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....rs are used by the assessee in the business of running them on hire, the claim of higher rate of depreciation is maintainable. We find that the assessee is engaged in the business of transportation of cash and valuables belonging to the third parties, for which it uses motor lorries customized as armoured vehicles. The security vans are customized, used for transportation of cash and valuables on hire and, therefore, we find the ratio of the decision of Calcutta High Court in the case of Agarwal Finance is applicable and the depreciation is allowable at higher rate. The CIT-A was justified in directing the AO and in allowing @ 30 depreciation as claimed by the assessee. We find no infirmity in the impugned order of the CIT-A and it is justified. Thus, ground no. 1 raised by the revenue is dismissed. 9. The next effective issue is to be decided as to whether the CITA is justified in deleting the impugned addition of Rs. 86,28,073/- made u/s. 2(24) r.w.s 36(1)(va) of the Act towards employees' contribution to PF in the facts and circumstances of the case. 10. The AO found that the assessee company received the sum of Rs. 86,28,073/- from its employees towards Employees 'Contrib....
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.... i.e from 01-04- 1988. 15. The Hon'ble Supreme Court found that the amendment to 1st proviso to Section 43B extended the benefit of deduction of tax to contributions to Employee's Provident Fund, superannuation fund and other welfare funds on par with duty, cess and fee and, whereby, the Hon'ble Supreme Court held that bringing the uniformity to the contributions of Employee's Provident Fund, superannuation fund and other welfare funds on par with duty, cess and fee came into force with effect from 01-04-2004 by Finance Act, 2003, was curative in nature and should be read as retrospective and shall operate from 01-04-1988 when the 1st proviso was actually inserted. The relevant portion of which is reproduced herein below: 9. We find no merit in these civil appeals filed by the Department for the following reasons: firstly, as stated above, Section 43-B [main section], which stood inserted by Finance Act, 1983, with effect from 1st April, 1984, expressly commences with a nonobstante clause, the underlying object being to disallow deductions claimed merely by making a Book entry based on Mercantile System of Accounting. At the same time, Section 43-B [main section] made i....
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....ccount of sales tax collected by the assessee for the last quarter of the relevant accounting year. The deduction was disallowed under Section 43-B which, as stated above, was inserted with effect from 1st April, 1984. It is also relevant to note that the first proviso which came into force with effect from 1st April, 1988 was not on the statute book when the assessments were made in the case of Allied Motors (P) Limited (supra). However, the assessee contended that even though the first proviso came to be inserted with effect from 1st April, 1988, it was entitled to the benefit of that proviso because it operated retrospectively from 1st April, 1984, when Section 43-B stood inserted. This is how the question of retrospectivity arose in Allied Motors (P) Limited (supra). This Court, in Allied Motors (P) Limited (supra) held that when a proviso is inserted to remedy unintended consequences and to make the section workable, a proviso which supplies an obvious omission in the section and which proviso is required to be read into the section to give the section a reasonable interpretation, it could be read retrospective in operation, particularly to give effect to the section as a whol....