Jawahar Lal Gupta, J.

1. The dispute relates to the assessment year 1983-84. The assessee filed a return, declaring a loss of Rs. 37,88,24,824. The Assessing Officer finalised the assessment under Section 143(3) of the Income Tax Act, 1961. The deductions claimed by the assessee under various heads, including on account of the forfeiture of contributory provident fund and depreciation on spare engines were disallowed. It was observed that the assessee had forfeited a sum of Rs. 12,038 during the assessment year on account of the contributory provident fund. This amount was liable to be added to the income of the assessee. As for depreciation on spare engines, the assessee had claimed an amount of Rs. 35,326. Even this claim was disallowed. Claims on other counts were also rejected. Ultimately, it was held that the total loss was Rs. 6,84,05,800.

2. Aggrieved by the order, the assessee filed an appeal. Vide his order dated March 21, 1994, the Commissioner of Income Tax (Appeals) allowed the appeal partly. It was held that the amount of contributory provident fund forfeited by the assessee is "the property of the trust only and not that of the corporation". Thus, the claim of the assessee was accepted. Similarly, the claim even with regard to depreciation was accepted.

3. Aggrieved by the order of the Commissioner, the Revenue filed an appeal. Various grounds were raised. However, the claim in respect of the aforesaid two items was declined. The appeal having been dismissed, the Revenue has now filed this second appeal under Section 260A of the Income Tax Act, 1961.

4. The Revenue maintains that the following two substantial questions of law arise for consideration of this court:

"1. Whether, on the facts and circumstances of the case, the Income Tax Appellate Tribunal was right in holding that mere forfeiture of contributory provident fund did not give the amount the colour of income in the hands of the assessee and thus the amount has to be treated in accordance with the provident fund scheme rules

2. Whether, on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in law in allowing depreciation on spare engines lying in the stock of the assessee"

5. Mr. Sawhney contends that the Tribunal has erred in upholding the claim of the assessee in respect of the deduction on account of forfeiture of the contributory provident fund as well as depreciation. Is it so

6. As already noticed, the Commissioner has recorded a firm finding that the amount of provident fund, forfeited by the employer goes to the trust and not to the assessee. Nothing has been produced before us to show that it is not so. Resultantly, it is clear that the finding of fact recorded by the Commissioner and affirmed by the Tribunal calls for no interference. In any event, no substantial question of law arises.

7. Mr. Sawhney contends that the view taken by the authorities that the assessee was entitled to depreciation is untenable. He submits that it is only when the machinery is used by the assessee that the claim for depreciation can be sustained, not otherwise.

8. Admittedly, the assessee is a transport corporation. It has a large fleet of buses. These can normally be seen standing by the road side. Thus, it has to keep spare engines in store. The engines are meant to be used in case of need. Thus, it cannot be said that the spare engines purchased by the assessee and kept in store are not meant for use.

9. Mr. Sawhney contends that actual user has to be proved. In the absence of a clear proof of user, the claim for depreciation cannot be sustained.

10. Every thing ages with the passage of time, including engines which gather dust in the store room. There is a normal depreciation of value even when a machine or equipment is merely kept in a store. Secondly, keeping in view the nature of the assessees business, it has to necessarily keep certain spare engines in store to meet an emergent situation. There is nothing on record to indicate that an engine, which was purchased a year or two earlier, will fetch the same price in the open market even today. In this situation, it is clear that the authorities have taken a possible view. Nothing has been pointed out to show that the opinion is perverse or untenable. Resultantly, it cannot be said that a substantial question of law arises for consideration of this court within the meaning of Section 260A of the.

11. No other point has been raised.

12. In view of the above, both the questions, as posed by the Revenue, are answered against it. The appeal is dismissed in limine.