The ACIT,(OSD) Range-1, Ahmedabad V. M/s. Anoli Hoildings Pvt.Ltd., Ahmedabad

ITA 1042/AHD/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0893 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2016
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 11-05-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: P M MEHTA
• Keywords: Revision of order; Depreciation; Deemed to accrue or arise in india; Revised return
• Section: 80IB; 10B; 32; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH (BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER & SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER) ITA. NO: 1042/AHD/2012 (ASSESSMENT YEAR: 2008-09) ACIT.(OSD), RANGE-1, AHMEDABAD V/S M/S. ANOLI HOLDING PVT. LTD. 101, MADHUBAN, NR. TOWN HALL UNDER BRIDGE, NR. INDER RESIDENCY, BUILDING, GUJARAT COLLEGE ROAD, AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AABCA2583L APPELLANT BY : SHRI K. MADHUSUDAN, SR. D. R. RESPONDENT BY : SHRI P.M. MEHTA, A.R. ( )/ ORDER DATE OF HEARING : 01 -08-201 6 DATE OF PRONOUNCEMENT : 03 -08-2016 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)- 6, AHMEDABAD DATED 20.03.2012 PERTAINING TO A.Y. 20 08-09. ITA NO. 1042 /AHD/2012 . A.Y. 2008-0 9 2 2. THE SUBSTANTIAL GRIEVANCE OF THE REVENUE READS AS U NDER:- 1. LD. CIT(A) ERRED IN LAW AND ON FACTS IN HOLDING THA T THE PROVISIONS OF SECTION 80AC ARE DIRECTORY, WHEREAS THE SECTION 80AC EXPRES SLY PROVIDES THAT THE DEDUCTION U/S.80IB IS NOT ALLOWABLE, IF THE ASSESSE E FAILS TO FILE THE RETURN OF INCOME BEFORE THE DUE DATE SPECIFIED IN SECTION 139 (1). 2. LD. CIT(A) ERRED IN DRAWING SIMILARITY BETWEEN SECT ION 10B DEDUCTION AND THE 80IB DEDUCTION, FOLLOWING THE ORDER OF THE ITAT IN ACIT V/S. DHIR GOLBAL INDUSTRIAL (P) LTD., WHEN SECTION 80AC EXPRESSLY PR OVIDES FOR DENIAL OF DEDUCTION. 3. THE ID. CIT(A) ERRED IN LAW AND ON FACTS IN DIRECTI NG THE AO TO ALLOW, IF THE EMPLOYEES CONTRIBUTIONS TO ESI IS PAID BEFORE THE D UE DATE OF FILING OF RETURN. EMPLOYEE CONTRIBUTIONS ARE NOT COVERED BY SECTION 4 3B OF THE ACT, BUT COVERED U/S 36(1)(V) R.W.S. 2(24)(X) OF THE ACT. PARLIAMENT HAS PROVIDED SEPARATE SECTION TO DISALLOWANCE FOR 'EMPLOYEES CONTRIBUTION', IF NOT P AID WITHIN THE TIME ALLOWED UNDER THE RELEVANT ACT. 4. THE ID. CIT(A) ERRED IN LAW AND ON FACTS IN DELETI NG THE DISALLOWANCE OF RS.1,80,634/- ON ACCOUNT OF DEPRECIATION ON ELECTRI CAL INSTALLATION. 3. THE ASSESSEE COMPANY IS RUNNING MULTIPLEX THEATRE A LONG WITH RELATED SERVICES. THE RETURN OF INCOME WAS FILED ON 31.03.2 010 DECLARING TOTAL INCOME OF RS. 86,28,840/-. THE RETURN WAS SELECTED FOR SCRUTINY ASSESSMENT AND ACCORDINGLY STATUTORY NOTICES WERE I SSUED AND SERVED UPON THE ASSESSEE. 4. WHILE SCRUTINIZING THE RETURN OF INCOME, THE A.O. N OTICED THAT THE ASSESSEE HAS CLAIMED DEDUCTION U/S. 80IB OF THE ACT AT RS. 73,09,275/-. DRAWING SUPPORT FROM THE PROVISIONS OF SECTION 80AC, THE A.O. WAS OF THE FIRM BELIEF THAT THE DEDUCTION U/S. 80IB IS NOT ALLOWABLE UNLESS THE RETURN OF INCOME IS FURNISHED ON OR BEFORE DUE DATE SPECIFIED U/S. 139(1) OF THE ACT. THE A.O. NOT ICED THAT THE DUE DATE FOR FILING OF THE RETURN OF INCOME FOR THE IMP UGNED ASSESSMENT ITA NO. 1042 /AHD/2012 . A.Y. 2008-0 9 3 YEAR WAS 30.09.2008 WHEREAS THE RETURN WAS FILED ON 31.03.2010. THOUGH, THE CERTIFICATE OF THE CHARTERED ACCOUNTANT IN FORM 10CCBA IS DATED 30.09.2009. 5. THE A.O. ASKED THE ASSESSEE TO SHOW CAUSE WHY DEDUC TION U/S. 80IB SHOULD NOT BE DISALLOWED AS THE RETURN OF INCOME WA S NOT FURNISHED ON OR BEFORE THE DUE DATE OF FILING OF THE RETURN U/S. 139(1) OF THE ACT. THE ASSESSEE CHOSE NOT TO REPLY. THE A.O. ACCORDING LY DISMISSED THE CLAIM OF DEDUCTION U/S. 80IB OF THE ACT AND MADE AN ADDITION OF RS. 73,09,275/-. 6. THE A.O. FURTHER FOUND THAT THE ASSESSEE HAS NOT DE POSITED EMPLOYEES CONTRIBUTION TOWARDS ESIC WITHIN DUE DATE. THE ASSE SSEE WAS ASKED TO SHOW CAUSE WHY THE DELAYED PAYMENT OF EMPLOYEES CO NTRIBUTION SHOULD NOT BE TREATED AS DEEMED INCOME OF THE ASSES SEE. THE ASSESSEE STATED THAT IT HAS PAID THE SAME BEFORE FI LING THE RETURN OF INCOME AND, THEREFORE, IT HAS TO BE ALLOWED. THE SU BMISSION OF THE ASSESSEE DID NOT FIND FAVOUR WITH THE A.O. WHO WAS OF THE FIRM BELIEF THAT IF THE EMPLOYEES CONTRIBUTION IS NOT DEPOSITE D BEFORE THE DUE DATE, THE SAME IS TREATED AS INCOME U/S. 2(24)(X) O F THE ACT. THE A.O. MADE THE ADDITION OF RS. 44,070/-. 7. ON FURTHER PROBE, THE A.O. FOUND THAT THE ASSESSEE HAS CLAIMED DEPRECIATION ON ELECTRIC FITTINGS @ 15% WHEREAS THE ALLOWABLE DEPRECIATION RATE IS @ 10%. THE A.O. ACCORDINGLY DI SALLOWED THE CLAIM OF DEPRECIATION TO THE TUNE OF RS. 1,90,634/-. 8. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) A ND REITERATED ITS CLAIM OF DEDUCTION U/S. 80IB OF THE ACT. IT WAS STR ONGLY CONTENDED THAT ITA NO. 1042 /AHD/2012 . A.Y. 2008-0 9 4 THE PROVISIONS OF SECTION 80AC OF THE ACT ARE DISCR ETIONARY IN NATURE AND NOT MANDATORY. STRONG RELIANCE WAS PLACED ON TH E JUDGMENT OF THE CO-ORDINATE BENCH OF ITAT, DELHI IN THE CASE OF DHI R GLOBAL INDUSTRIAL PVT. LTD. 43 SOT 640. 9. AFTER CONSIDERING THE FACTS AND THE SUBMISS IONS AND DRAWING SUPPORT FROM THE JUDICIAL DECISIONS RELIED UPON BY THE ASSESSEE. THE LD. CIT(A) WAS CONVINCED WITH THE CLAIM OF THE ASSESSEE AND DIRECTED THE A.O. TO ALLOW THE CLAIM OF DEDUCTION U/S. 80IB OF T HE ACT. 10. AGGRIEVED BY THIS, THE REVENUE IS BEFORE US. 11. THE LD. D.R. STRONGLY RELIED UPON THE DECISION OF T HE TRIBUNAL SPECIAL BENCH, RAJKOT IN THE CASE OF SAFFIRE GARMEN TS IN ITA NO. 397/RJT/2009 20 ITR (T) 623. THE LD. D.R. ALSO SUP PORTED THE FINDINGS OF THE SPECIAL BENCH BY THE JUDGMENT OF THE TRIBUNA L IN THE CASE OF LAKSHMI ENERGY & FOODS LTD. IT IS THE SAY OF THE LD . D.R. THAT THE DECISIONS RELIED UPON BY THE LD. CIT(A) RELATES TO THE FILING OF THE AUDIT REPORT DURING THE COURSE OF THE ASSESSMENT PROCEEDI NGS AND NOT RELATING TO THE DELAY IN FILING OF THE RETURN OF IN COME. THE LD. D.R. CONTINUED BY STATING THAT EVEN THE TRIBUNAL IN ASSE SSEES OWN CASE IN A.Y. 2005-06 ALLOWED THE CLAIM OF DEDUCTION BECAUSE THE AUDIT REPORT WAS FILED DURING THE COURSE OF THE ASSESSMENT PROCE EDINGS. RELYING UPON THE DECISION OF THE HONBLE JURISDICTIONAL HIG H COURT IN THE CASE OF GUJARAT OIL AND ALLIED INDUSTRIES 201 ITR 325. THE LD. D.R. POINTED OUT THAT IN NONE OF THESE CASES; THERE WAS A DELAY IN F ILING OF THE RETURN OF INCOME. THE LD. D.R. STRONGLY STATED THAT DURING TH E YEAR UNDER CONSIDERATION, THERE IS A DELAY IN FILING OF THE RE TURN OF INCOME AS THE RETURN HAS NOT BEEN FILED WITHIN THE DUE DATE PRESC RIBED BY THE ITA NO. 1042 /AHD/2012 . A.Y. 2008-0 9 5 PROVISIONS OF SECTION 139(1) OF THE ACT. THEREFORE, THE CLAIM OF DEDUCTION U/S. 80IB OF THE ACT IS DIRECTLY HIT BY T HE PROVISIONS OF SECTION 80AC OF THE ACT. 12. PER CONTRA, THE LD. COUNSEL FOR THE ASSESSEE REITER ATED WHAT HAS BEEN STATED BEFORE THE LOWER AUTHORITIES AND RELIED UPON THE VERY SAME DECISIONS WHICH WERE CONSIDERED BY THE FIRST A PPELLATE AUTHORITY. 13. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE RIV AL CONTENTIONS; WE HAVE ALSO CAREFULLY PERUSED THE ORD ERS OF THE AUTHORITIES BELOW. THE UNDISPUTED FACT IS THAT THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS NOT FURNISHED ON O R BEFORE THE DUE DATE AS PER THE PROVISIONS OF SECTION 139(1) OF THE ACT. IN OUR CONSIDERED OPINION, PROVISIONS OF SECTION 80AC OF T HE ACT SQUARELY APPLY ON THE FACTS OF THE CASE IN HAND, SECTION 80A C READS AS UNDER:- 80AC. WHERE IN COMPUTING THE TOTAL INCOME OF AN ASSESSEE OF THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR COMMENCING ON THE 1 ST DAY OF APRIL, 2006 OR ANY SUBSEQUENT ASSESSMENT YEAR, ANY DEDUCTION IS ADMISS IBLE UNDER SECTION 80IA OR SECTION 80-IAB OR SECTION 80-IB OR SECTION 80-IC [O R SECTION 80-ID OR SECTION 80- IE], NO SUCH DEDUCTION SHALL BE ALLOWED TO HIM UNLE SS HE FURNISHES A RETURN OF HIS INCOME FOR SUCH ASSESSMENT YEAR ON OR BEFORE THE DU E DATE SPECIFIED UNDER SUB- SECTION (1) OF SECTION 139]. 14. THE SPECIAL BENCH OF THE TRIBUNAL AT RAJKOT HAD THE OCCASION TO CONSIDER THE FOLLOWING FACTS IN THE CASE OF SAFFIRE GARMENTS (SUPRA):- THE ASSESSEE, A PARTNERSHIP FIRM, FILED ITS RETURN OF INCOME CLAIMING DEDUCTION UNDER SECTION 10A IN RESPECT OF ITS PROFIT DERIVED FROM THE EXPORT OF ARTICLES PRODUCED IN SEZ. ITA NO. 1042 /AHD/2012 . A.Y. 2008-0 9 6 THE ASSESSING OFFICER, HOWEVER, NOTED THAT THE ASSE SSEE HAD FILED ITS RETURN ON 31.01.2007 WHEREAS THE EXTENDED DUE DATE FOR FILING RETURN OF INCOME FOR THE ASSESSEE, BEING A FIRM, UNDER THE PROVISIONS OF SEC TION 139(1) WAS 31.12.2006. THE ASSESSING OFFICER, FURTHER NOTED THAT AS PER PR OVISO TO SUB-SECTION (1A) OF SECTION 10A, INTRODUCED WITH EFFECT FROM 1-4-2006, NO DEDUCTION SHOULD BE ALLOWED TO ASSESSEE WHO DOES NOT FURNISH RETURN OF INCOME ON OR BEFORE THE DUE DATE. ACCORDINGLY, APPLYING PROVISO TO SECTION 10A(1A), A SSESSING OFFICER DENIED DEDUCTION UNDER SECTION 10A. ON APPEAL BY THE ASSESSEE, THE COMMISSIONER (APPEAL S) UPHELD THE ORDER OF ASSESSING OFFICER. ON FURTHER APPEAL BY THE ASSESSEE. THE TRIBUNAL HEL D PROVISIONS OF THE PROVISO TO SUBSECTION (1A) OF SECTION 10A TO BE MERELY DIRECTO RY AND NOT MANDATORY AND, THEREFORE, ON THAT BASIS HELD THAT EVEN IF RETURN O F INCOME WAS NOT FILED WITHIN THE TIME-LIMIT PRESCRIBED BY SECTION 139(1), THE ASSESS EE COULD NOT BE DENIED DEDUCTION UNDER SECTION 10A. INSTANT SPECIAL BENCH OF THE TRIBUNAL WAS CONSTITUT ED TO CONSIDER THE FOLLOWING QUESTIONS. 15. ON THE AFOREMENTIONED FACTS, THE SPECIAL BENCH HELD AS UNDER:- SCHEME OF THE ACT WITH REGARD TO FILING OF RETURNS IN ORDER TO DECIDE THE ISSUE, I HE WHOLE SCHEME OF THE ACT NEEDS TO BE CONSIDERED. THE ASSESSEE IS REQUIRED TO FILE THE RETURN OF INCOME W ITHIN THE PRESCRIBED TIME AS PER THE PROVISIONS OF SECTION 139(1). THIS PROVISION OF SEC TION 139(1) IS APPLICABLE TO ALL COMPANIES AND FIRMS IRRESPECTIVE OF THE FACT AS TO WHETHER THEY ARE EARNING TAXABLE INCOME OR NOT FOR THE CURRENT YEAR I.E. FROM 1-4-2006. IN RESPECT OF OTHER PERSONS SUCH AS INDIVIDUAL, HUF, AOP OR BOI AND ARTIFICIAL JURIDICAL PERSON, THE REQUIREMENT IS THAT IF SUCH A PERSON IS HAVING TAXA BLE INCOME BEFORE GIVING EFFECT TO THE PROVISIONS OF SECTION 10A, THEN ALSO, HE IS REQ UIRED TO FILE RETURN OF INCOME BEFORE THE DUE DATE EVEN IF THIS PERSON IS NOT HAVING TAXA BLE INCOME AFTER GIVING EFFECT TO THE PROVISIONS OF SECTION 10A. [PARA 11] ITA NO. 1042 /AHD/2012 . A.Y. 2008-0 9 7 CONSEQUENCES OF FAILURE TO FILE RETURN WITHIN DUE D ATE IT IS FOUND THAT THE PROVISIONS OF THE PROVISO TO S ECTION 10A(IA) IS NOTHING BUT A CONSEQUENCE OF FAILURE OF THE ASSESSEE LO FILE THE RETURN OF INCOME WITHIN THE DUE DATE PRESCRIBED UNDER SECTION 139(1). FOR SUCH A FAILURE OF THE ASSESSEE TO FILE HIS RETURN OF INCOME WITHIN THE DUE DATE PRESCRIBED UNDER SECT ION 139( 1), THIS IS NOT THE ONLY CONSEQUENCE. ONE CONSEQUENCE OF SUCH FAILURE IS PRE SCRIBED IN SECTION 234A ALSO AS PER WHICH, THE ASSESSEE IS LIABLE TO PAY INTEREST O N THE TAX PAYABLE BY HIM AFTER REDUCING ADVANCE TAX AND TDS/TCS IF ANY PAID BY HIM APART FROM SOME OTHER REDUCTIONS. SUCH INTEREST IS PAYABLE FROM THE DATE IMMEDIATELY FOLLOWING THE DUE DATE FOR FILING THE RETURN OF INCOME AND IS PAYABLE UP T O THE DATE ON WHICH SUCH RETURN OF INCOME WAS FURNISHED BY THE ASSESSEE AND IF THE ASS ESSEE HAS NOT FURNISHED ANY RETURN OF INCOME THEN THE INTEREST IS PAYABLE TILL THE DAT E OF COMPLETION OF THE ASSESSMENT UNDER SECTION 144. IT IS HELD THAT ABOVE IS ALSO O NE OF THE CONSEQUENCES OF NOT FILING RETURN OF INCOME BY THE ASSESSEE WITHIN THE DUE DAT E. [PARA 11] 16. A SIMILAR ISSUE WAS ALSO CONSIDERED BY THE CO-ORDIN ATE BENCH OF CHANDIGARH IN THE CASE OF LAKSHMI ENERGY & FOODS LT D. (SUPRA), THE RELEVANT FACTS AND FINDINGS OF THE CO-ORDINATE BENC H READ AS UNDER:- HOWEVER, HON'BLE SUPREME COURT IN CASE OF PREM NA TH KHANNA (SUPRA) HELD - THAT 'DUE DATE' WOULD MEAN DUE DATE AS PROVIDED U/S 139(1). THEREFORE WE ARE OF THE OPINION THAT THE DECISION OF CIT VS. MS JAGRITI AGGARWAL (SUPRA) IS NOT APPLICABLE PARTICULARLY BECAUSE THERE IS A SPECIFIC PROVISION U/S 80AC WHICH PROHIBITS DEDUCTION UNDER PART 'C' OF CHAPTER VI A UNLESS THE RETURNS ARE FILED WITHIN TIME PRESCRIBED U/S 139(1). W HEN A SPECIFIC PROVISION IS THERE IN THE STATUTE SAME CANNOT BE INTERPRETED IN A WAY TO MAKE THE PROVISION REDUNDANT. THEREFORE IN OUR OPINION, PRINCIPLE LAID DOWN BY TH E HON'BLE HIGH COURT IN CASE OF CIT VS. MS. JAGRITI AGGARWAL (SUPRA) CANNOT BE A PPLIED WHILE INTERPRETING THE PROVISION OF SEC 80AC. 32 THE LD. COUNSEL FOR THE ASSESSEE HAS ALSO RELIED ON THE DECISION OF ACIT VS. DHIR GLOBAL INDUSTRIAL PVT. LTD (SUPRA) WHEREIN IT WAS OBSERVED THAT THOUGH THE ITA NO. 1042 /AHD/2012 . A.Y. 2008-0 9 8 PROVISO TO SEC L0B FOR FILING OF RETURN U/S 139(1) FOR CLAIMING DEDUCTION BUT THE SAME WAS OF DIRECTORY NATURE AND NOT MANDATORY. IN OUR OPINION, THIS JUDGMENT OF DIVISION BENCHES IS NO MORE VALID AFTER PRONOUNCEME NT OF THE DECISION OF SPECIAL BENCH IN CASE OFF SAFFIRE GARMENTS VS. ITO (SUPRA). SIMILARLY IN ITO VS. S. VENKTAYA(SUPRA), HYDERABAD BENCH OF THE TRIBUNAL HE LD THAT IF RETURN WAS FILED LATE THEN DESPITE THE PROVISIONS OF SECTION 80AC TH E DEDUCTION WAS HELD TO BE ALLOWABLE IF SUCH DELAY IS BEYOND THE CONTROL OF TH E ASSESSEE. THIS POSITION ALSO STANDS REVERSED AFTER THE DECISION OF SPECIAL BENCH IN CASE OF SAFFIRE GARMENTS VS. 1TO (SUPRA) WHEREIN IT IS CLEARLY HELD THAT THE PROVISIONS OF SECTION 8OAC ARE OF MANDATORY NATURE. AS FAR AS DECISION OF HON'BLE DELHI HIGH COURT IS CONCERNED, THE SAME IS DISTINGUISHABLE ON FACTS BEC AUSE IN THAT CASE THE ASSESSEE DID NOT HAVE POSITIVE GROSS TOTAL INCOME IN THE INI TIAL YEAR, THEREFORE COULD NOT CLAIM THE DEDUCTION FOR SUCH INITIAL YEAR. THEREAFT ER FOR ASSESSMENT YEAR 2001-02 THE ASSESSEE DID NOT CLAIM DEDUCTION DESPITE OF THE POSITIVE PROFITS. THIS OMISSION WAS NOTICED SOMEWHERE IN 2004 BY WHICH TIME FILING OF REVISED RETURN HAS ELAPSED AND THE ASSESSEE MOVED A PETITION U/S 264 WHICH WAS HELD TO BE MAINTAINABLE BECAUSE THE DEDUCTION WAS NOT CLAIMED BECAUSE OF BO NAFIDE MISTAKE. THEREFORE CLEARLY ON THESE FACTS THE APPLICABILITY OF PROVISI ONS OF SECTION 8OAC WAS NOT THERE FOR CONSIDERATION BECAUSE THIS PROVISION WAS INTROD UCED ONLY FROM ASSESSMENT YEAR 2006-07 AND THEREFORE THIS CASE IS DISTINGUISH ABLE. 33 THE LD. D.R. FOR THE REVENUE HAS RIGHTLY POINTED OUT TO THE DECISION OF AMRITSAR BENCH OF THE TRIBUNAL IN CASE OF BALKISHAN VS. ITO (SUPRA) WHEREIN IT WAS CLEARLY OBSERVED THAT PROVISIONS OF SECTION 80AC ARE MANDATORY. HEAD NOTE READS AS UNDER: 'SEC 80IB R.W.S. 80AC OF THE INCOME-TAX ACT, 1961 D EDUCTION - PROFITS AND GAINS FROM INDUSTRIAL UNDERTAKING OTHER THAN INFRAS TRUCTURE DEVELOPMENT UNDERTAKINGS -ASSESSMENT YEAR 2006-07 AND 2007-08 - WHERE AN ASSESSEE WANTS TO AVAIL DEDUCTION U/S 80IB, HE HAS TO NECESS ARILY FURNISH HIS RETURN OF INCOME CONTAINING SUCH CLAIM BEFORE DUE DATE SPE CIFIED IN SEC 139(1) - HELD YES' ITA NO. 1042 /AHD/2012 . A.Y. 2008-0 9 9 THEREFORE IN VIEW OF THE ABOVE LEGAL POSITION AND D ISCUSSION IT IS CLEAR THAT ONCE THE RETURN IS FILED LATE BEYOND DUE DATE PROVIDED U /S .139(1) IN SECTION 80AC THEN DEDUCTION U/S 8OIB CANNOT BE ALLOWED. 17. IF, WE CONSIDER THE FACTS OF THE CASE IN HAND IN TH E LIGHT OF THE DECISIONS MENTIONED HEREINABOVE, WE FIND SIMILARITY IN THE FACTS. THEREFORE, RESPECTFULLY FOLLOWING THE DECISIONS OF THE SPECIAL BENCH AND THE CO-ORDINATE BENCH (SUPRA), WE SET ASIDE THE FIN DINGS OF THE LD. CIT(A) AND RESTORE THAT OF THE A.O. GROUND NOS. 1 & 2 TAKEN TOGETHER ARE ALLOWED. 18. INSOFAR AS THE ADDITION MADE ON ACCOUNT OF DELAY IN THE DEPOSIT OF EMPLOYEES CONTRIBUTION IS CONCERNED, WE FIND TH AT THE LD. CIT(A) HAS DELETED THE ADDITION FOLLOWING THE DECISIONS OF HONBLE HIGH COURT OF DELHI BY HOLDING THAT IF EMPLOYEES CONTRIBUTION IS DEPOSITED BEFORE THE DUE DATE OF FILING OF THE RETURN OF THE SAME IS ALLOWABLE. ON IDENTICAL ISSUE, THE HONBLE JURISDICTIONAL HIGH CO URT HAS DECIDED THE MATTER AGAINST THE ASSESSEE AND IN FAVOUR OF THE RE VENUE IN THE CASE OF CIT VS. GUJARAT STATE ROAD CORPORATION 366 ITR 1 70. 19. WITH OUR UTMOST RESPECT TO THE HONBLE HIGH COURT O F DELHI, WE ARE GOVERNED BY THE HONBLE HIGH COURT OF GUJARAT, THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT (SUPRA), WE SET ASIDE THE FINDINGS OF THE LD. CIT(A) AND RESTORE THAT OF THE A.O. GROUND NO. 3 IS ACCORDINGLY ALLOWE D. 20. INSOFAR AS THE CLAIM OF DEPRECIATION @ 15% IS CONCE RNED, WE FIND THAT THE LD. CIT(A) HAS ALLOWED THE CLAIM BY HOLDIN G THAT ELECTRIC FITTINGS ARE ELIGIBLE TO DEPRECIATION AS PLANT AND MACHINERY. FOR THIS ITA NO. 1042 /AHD/2012 . A.Y. 2008-0 9 10 PROPOSITION, WE FIND THAT THE LD. CIT(A) HAS FOLLOW ED THE DECISION OF THE HONBLE HIGH COURT OF RAJASTHAN IN THE CASE OF RG I SPAT LTD. 272 ITR 383 AND ALSO THE DECISION OF THE TRIBUNAL IN THE CA SE OF AHMEDABAD BENCHES IN THE CASE OF MARWAR HOTELS LTD. 21. WE FIND THAT AN IDENTICAL ISSUE WAS CONSIDERED BY T HE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO. 3175/AHD/2010 FOR A. Y. 2005-06, THE RELEVANT FINDINGS OF THE TRIBUNAL READ AS UNDER:- 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. IT IS UNDISPUTED THAT ELECTRICAL ITEMS ARE FITTED WITH PR OJECTOR AND OTHER FILM EXHIBITION SYSTEMS. WITHOUT ELECTRICAL ITEMS, THE PROJECTOR AS WELL AS EXHIBITION SYSTEMS CANNOT BE RUN. THEREFORE, IT IS A PART AND PARCEL O F THE PLANT AND MACHINERY. THUS, THE ASSESSEE IS ENTITLED TO HIGHER RATE @ 25%. WE C ONFIRM THE ORDER OF THE CIT(A) AND DISMISS THE REVENUES APPEAL ON THIS GROUND. 22. RESPECTFULLY FOLLOWING THE FINDINGS OF THE CO-ORDIN ATE BENCH, WE DECLINE TO INTERFERE WITH THE FINDINGS OF THE LD. C IT(A). GROUND NO. 4 IS ACCORDINGLY DISMISSED. 23. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS P ARTLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 03- 08- 2016. SD/- SD/- (R.P. TOLANI) (N. K. BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED.