DCIT, Circle -7, Kolkata, Kolkata V. M/s. Ripley & Company Stevedoring & handling(P) LtdLtd, Kolkata

ITA 1151/KOL/2012

• Counselvise Citation: 115123514 RSA 2012
• Duration Of Justice: 3 year(s) 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 09-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SARNATH GHOSH
• Keywords: Depreciation; Question of law
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C, KOLKATA (BEFORE SHRI M. BALAGANESH, A.M. & SHRI S.S.VISWANE THRA RAVI, J.M.) ITA NO. 1151/KOL/2012 : ASSTT. YEAR : 2009-2 010 DCIT, CIRCLE-7 KOLKATA VS M/S. REPLEY COMPANY STEVEDORING & HANDLING PVT. LTD. (PAN: AACCR 4027R) (APPELLANT) (RESPONDENT) DEPARTMENT BY : SHRI SANJAY MUKHERJEE, JCIT ASSESSEE BY : S/SHRI SOMNATH GHOSH & SARNATH GHOSH, ADVOCATES DATE OF HEARING : 13.10.2015 DATE OF PRONOUNCEMENT : 04-12-2015 ORDER PER SHRI S.S.VISWANETHRA RAVI, J.M . THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER DATED 10.05.2012 PASSED BY THE CIT(APPEALS)-VIII, KOLKATA IN APPEAL NO.140/CIT(A)-VIII/KOL/11-12 FOR THE ASSESSMENT YEA R 2009-10 FRAMED UNDER SECTION 143(3) OF THE I.T.ACT. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUND BEF ORE US. 1. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE C ASE, THE LD. CIT(APPEALS) HAS ERRED IN LAW AND ON FACT IN DE LETING THE DISALLOWANCE MADE BY THE A.O. OF RS.90,66,741 U NDER THE INCOME-TAX ACT, 1961. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A DOMESTIC COMPANY. THE ASSESSEES BUSINESS IS STEVEDORING, CL EARING AND FORWARDING. DURING THE COURSE OF ASSESSMENT PROCEED INGS, IT WAS OBSERVED BY THE AO THAT THE ASSESSEE CLAIMED DEPREC IATION AT 30% ON THE BLOCK OF ASSETS I.E. TIPPERS AND DUMPERS. THE A .R. CLAIMED THAT THE 2 ITA NO.1151/KOL/2012 M/S. REPLEY COMPANY STEVEDORING & HAN DLING PVT. LTD. ASSESSMENT YEAR: 2009-10 ASSESSEE IS USING THE VEHICLES FOR ITS OWN BUSINESS AND TRANSPORTATION OF GOODS ON HIRE. THE AO TOOK A VIEW THAT IN TERMS OF A CIRCULAR NO.652 DATED 14.06.1993 ISSUED BY THE C.B.D.T. WHICH PROVI DES HIGHER RATE OF DEPRECIATION ONLY FOR MOTOR BUSES AND MOTOR LORRIES . THEREBY, HE DISALLOWED THE DEPRECIATION AT 30% BUT HOWEVER REST RICTED THE DEPRECIATION AT 15% TREATING THE BLOCK ASSETS OF TH E ASSESSEE AS PLANT AND MACHINERY. 3.1 BEFORE THE LD. CIT(A), THE ASSESSEE CONTENDED T HAT THE VEHICLES WERE USED BY THE ASSESSEE IN TWO CAPACITIES I.E. TR ANSPORTATION OF GOODS FOR HIS OWN PURPOSE AND TRANSPORTATION OF GOODS ON HIRE. TO BE CLEAR FOR CLARITY, THE TRANSPORTATION OF GOODS DURING THE COU RSE OF CONTRACT, WORK TAKEN FOR PURPOSES OF TRANSPORTATION OF CERTAIN PRO DUCTS TO VARIOUS COMPANIES, THE LD. CIT(A) ALSO CONSIDERED THE EARLI ER ORDERS PASSED BY HIS PREDECESSOR FOR ASSESSMENT YEAR 2005-06 DATED 1 1.04.2008, 2006-07 DATED 26.06.2009 AND FOR ASSESSMENT YEAR 2008-09 DA TED 24.11.2011, THEREBY WHILE CONSIDERING THE ABOVE ORDERS, THE LD. CIT(A) DIRECTED THE AO TO ALLOW DEPRECIATION AT 30%. 3.2 THE LD. CIT(A) DELETED THE ADDITION WHILE CONSI DERING OF HIS PREDECESSORS AND ALSO HIS OWN DECISION RENDERED IN THE CASE OF M/S. REPLEY & COMPANY ON THE IDENTICAL ISSUE WHEREIN IT HAD BEEN HELD THAT THE BUSINESS OF THE ASSESSEE QUALIFIES THE CLAIM OF HIGHER DEPRECIATION ON MOTOR VEHICLES. THE LD. CIT(A) ALSO OBSERVED THA T THE FACTS OF THE CASE LAWS RELIED UPON BY THE AO IN THE ASSESSMENT O RDER ARE DISTINGUISHABLE FROM THAT OF THE ASSESSEES CASE. 4. THOUGH THE BATCH OF TWO APPEALS BEING FILED BY T HE REVENUE, THE LD. COUNSEL SUBMITTED THAT THE GROUND RAISED BY THE REVENUE IS COVERED BY AN ORDER DATED 10.01.2011 IN ITA NO.231 OF 2010 OF THE HONBLE 3 ITA NO.1151/KOL/2012 M/S. REPLEY COMPANY STEVEDORING & HAN DLING PVT. LTD. ASSESSMENT YEAR: 2009-10 JURISDICTIONAL HIGH COURT AT CALCUTTA FOR ASSESSMEN T YEAR 2006-07 WHEREIN IT HELD THAT THE ITAT RIGHTLY HELD THAT THE ASSESSEE WAS ENTITLED TO THE BENEFIT OF CIRCULAR NO.652 DATED 14.06.1993. THE RELEVANT PORTION OF THE ABOVE ORDER IS REPRODUCED BELOW. . THE ASSESSEE WAS ENTITLED TO THE BENEFIT BECAUS E OF THE FACT THAT THE ASSESSEE WAS USING THE VEHICLES IN BO TH THE CAPACITIES, THAT IS TO SAY, BUSINESS FOR TRANSPORTA TION OF GOODS ON HIRE AS WELL AS TRANSPORTATION OF GOODS. I T WAS ALSO POINTED OUT THAT IN THE PAST FOR THE ASSESSMENT YEA RS 2005- 2006 AND 2004-2005, THE LEARNED C.I.T.(A) HELD THAT THE ASSESSEE HAD THE BUSINESS OF TRANSPORTATION OF GOOD S ON HIERE AS WELL AS TRANSPORTING OTHER GOODS AND, AS S UCH, WAS ENTITLED TO HIGHER RATE OF DEPRECIATION AS PER THE SAID CIRCULAR NO.652. IT APPEARS THAT THE REVENUE DID NO T CHALLENGE THOSE DECISIONS. WE, THEREFORE, FIND THAT IN THE FACTS OF THE PRES ENT CASE, THE LEARNED APPELLATE TRIBUNAL RIGHTLY HELD THAT THE AS SESSEE WAS ENTITLED TO THE BENEFIT OF CIRCULAR NO.652. NO SUBSTANTIAL QUESTION OF LAW BEING INVOLVED, WE DISM ISS THIS APPEAL. 4.1 FURTHER, THE LD. COUNSEL SUBMITTED BEFORE US TH AT THE REVENUE DID NOT PREFER ANY APPEAL BEFORE THE APEX COURT AND THE LD. DR ALSO CONCEDED THE SAME. HENCE, THE JUDGMENT ON GROUND NO .1 OF THE HONBLE JURISDICTIONAL HIGH COURT AT CALCUTTA HAS BECOME FI NAL AND BINDING ON US. BY RESPECTFULLY FOLLOWING THE JUDGMENT MENTIONE D ( SUPRA ), WE CONFIRM THE ORDER OF THE LD. CIT(A) REGARDING THE G ROUND NO.1 AND DISMISS THE GROUND AGAINST THE REVENUE. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH DECEMBER, 2015. SD/- SD/- ( M. BALAGANESH) (S.S.VISWANETHRA RAVI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:04/12/2015 TALUKDAR/SR.PS 4 ITA NO.1151/KOL/2012 M/S. REPLEY COMPANY STEVEDORING & HAN DLING PVT. LTD. ASSESSMENT YEAR: 2009-10 COPY OF ORDER FORWARDED TO: 1 M/S. REPLEY COMPANY STEVEDORING & HANDLING PVT. LTD ., BLOCK-C, 1 ST FLOOR, 22, LEE ROAD, KOLKATA 700 020 2 ACIT, CIRCLE-7 , KOLKATA 3 THE CIT(A), 4 5 CIT, 5. D.R. TRUE COPY, BY ORDER, ASSTT. REGISTRAR , ITAT, KOLKATA