Shri Rajubhai M. Patel, Tapi V. The Income Tax Officer, Ward-8(4), Surat

ITA 1479/AHD/2015

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 1570 (ITAT-SURAT)
• Duration Of Justice: 6 year(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-06-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 25-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income; Depreciation; Salary income; Competent authority

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER ITA NO.1479/AHD/2015 (AY 2010-11) (H EARING IN VIRTUAL COURT) RAJUBHAI M PATEL, CHANDRALOK SOCIETY, NISHAL FALIA, STATION ROAD, VYARA DISTRICT TAPI. VS THE INCOME TAX OFFICER, WARD-8(4), SURAT. APPLICANT RESPONDENT ASSESSEE BY SHRI RUSHI PAREKH ADVOCATE REVENUE BY MS. USHA SHROTE - SR.DR DATE OF HEARING 24 . 0 3 .2021 DATE OF PRONOUNCEMENT 11 .0 6 .2021 ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER: 1. THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-3, [LD.CIT(A)] SURAT DATED 05.03.2015 FOR THE ASSESSMENT YEAR (AY) 2010-11. THE ASSESSEE RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF ASSESSING OFFICER IN MAKING ADDITION OF RS.21,35,877/- AS SHORT TERM CAPITAL GAIN. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF ASSESSING OFFICER IN MAKING DISALLOWANCES OUT OF VARIOUS EXPENSES CLAIMED AGAINST INCOME FROM PARTNERSHIP FIRM BY SUSTAINING DISALLOWANCES TO THE EXTENT OF RS.31,690/- AS AGAINST RS.58,769/- MADE BY ASSESSING OFFICER. 3. IT IS THEREFORE PRAYED THAT ABOVE DISALLOWANCES / ADDITIONS MADE BY ASSESSING OFFICER AND CONFIRMED BY COMMISSIONER OF INCOME-TAX(APPEALS) MAY PLEASE BE DELETED. ITA NO.1479/AHD/2021 SHRI RAJUBHAI M PATEL (AY 2010-11) 2 4. APPELLANT CRAVES LEAVE TO ADD, ALTER OR DELETE ANY GROUND(S) EITHER BEFORE OR IN THE COURSE OF HEARING OF THE APPEAL. 2. FACTS IN BRIEF AS GATHERED FROM THE ORDERS OF THE LOWER AUTHORITIES ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND DERIVED INCOME FROM SALARY, INTEREST INCOME AND FRO HOUSE PROPERTY. THE ASSESSEE FILED HAS FILED E-RETURN OF INCOME ON 29.03.2011 DECLARING TOTAL INCOME OF RS.2,40,610/-. THE CASE WAS SELECTED FOR SCRUTINY. DURING THE ASSESSMENT, THE LD. ASSESSING OFFICER (AO) NOTED THAT HE HAS RECEIVED AIR INFORMATION THAT ASSESSEE HAS SOLD IMMOVABLE PROPERTY / LAND FOR A SALE CONSIDERATION OF RS.95 LAKHS OUT OF SURVEY NO.368/A, BLOCK NO.428 OF VILLAGE KANBHA, TALUKA DASKI, DIST AHMEDABAD. THE CONVEYANCE DEED OF SALE TRANSACTION WAS REGISTERED ON 15.10.2009 AT SUB-REGISTRAR OFFICE, ODHAV AHMEDABAD. THE ASSESSING OFFICER ASKED THE ASSESSEE TO FURNISH THE COPY OF SALE CONSIDERATION TRANSACTION OF SAID PROPERTY. THE ASSESSEE FURNISHED THE REQUIRED DETAILS AND INFORMATION. ON THE BASIS OF INFORMATION PROVIDED BY THE ASSESSEE THE A.O. NOTED THAT THE ASSESSEE ALONG WITH CO-OWNER PURCHASED THE SAID PROPERTY ON 16.04.2007 AND IT WAS SOLD ON 15.01.2009, THE ASSESSEE WAS HAVING 1/4 TH SHARE. THE AO ISSUED SHOW CAUSE NOTICE AS TO WHY INCOME EARNED ON THE SALE CONSIDERATION AND RECEIVED BY ASSESSEE SHOULD NOT BE TREATED AS SHORT TERM CAPITAL GAIN. THE ASSESSEE FILED ITS REPLY AND STATED THAT THE SALE TRANSACTION WAS NOT COMPLETED AS THERE IS DISPUTE BETWEEN SELLER AND THE PURCHASER. THE ASSESSEE ALONG WITH HIS CO-OWNER STILL OCCUPYING THE SAID ITA NO.1479/AHD/2021 SHRI RAJUBHAI M PATEL (AY 2010-11) 3 LAND. THE CHEQUES OF THE SALE CONSIDERATION REFLECTED IN THE SALE DEEDS WERE DISHONORED BY THE BANKERS OF THE PURCHASERS. THE PARTIES ARE LITIGATING IN CIVIL COURT. ON THE BASIS OF OBJECTION OF ASSESSEE AND HIS CO-OWNER, THE REGISTRATION OF CONVEYANCE DEED WAS HOLD BY SUB-REGISTRAR. THE EXPLANATION FURNISHED BY ASSESSEE WAS NOT ACCEPTED BY THE AO BY TAKING VIEW THAT THE DOCUMENT WAS REGISTERED WITH THE OFFICE OF SUB-REGISTRAR AND THE ASSESSEE HAS RECEIVED SALE CONSIDERATION. THE AO TREATED THE SALE CONSIDERATION AS A SHORT TERM CAPITAL GAIN AND TAXED ACCORDINGLY. 3. THE A.O. FURTHER ALSO NOTED THAT IN THE PROFIT AND LOSS ACCOUNT, THE ASSESSEE HAS DEBITED EXPENSES OF RS.58,769/- AGAINST THE INCOME FROM REMUNERATION AND INTEREST INCOME. THE ASSESSEE WAS SHOW CAUSED AS TO WHY THE SAID EXPENSES SHOULD NOT BE DISALLOWED AS THE ASSESSEE HAS NOT CARRIED OUT ANY BUSINESS ACTIVITIES. THE ASSESSEE FILED HIS REPLY AND STATED THAT HE IS A PARTNER IN THREE FIRMS NAMELY M/S. SHREE LAXMI TRADERS, M/S. SURBHI CONSTRUCTION CO AND SHREE AMBICA NAGAR. THE ASSESSEE FILED ITS REPLY AND CONTENDED THAT THE ASSESSEE HAS CLAIMED DEPRECIATION ON VEHICLES OF RS.40,809/- AND VEHICLE EXPENSES OF RS.47,960/-. THE ASSESSEE CLAIMED EXPENSES ONLY FOR ONE CAR AND ONE MOTOR CYCLE. THESE VEHICLES ARE USED FOR VISITING SITES OF THE FIRM AND FOR BUSINESS PURPOSE ONLY. THE EXPLANATION FURNISHED BY THE ASSESSEE WAS NOT ACCEPTED BY THE AO, AND DISALLOWED THE ENTIRE EXPENSES WHICH CONSIST OF ITA NO.1479/AHD/2021 SHRI RAJUBHAI M PATEL (AY 2010-11) 4 DEPRECIATION AND VEHICLES EXPENSES. ON APPEAL BEFORE THE LD.CIT(A), BOTH THE ADDITIONS/DISALLOWANCE WAS UPHELD. FURTHER AGGRIEVED, THE ASSESSEE HAS FILED APPEAL BEFORE THIS TRIBUNAL. 4. WE HAVE HEARD THE SUBMISSION OF LD. AUTHORISED REPRESENTATIVE (AR) OF THE ASSESSEE AND LD. DEPARTMENTAL REPRESENTATIVE (SR.DR) FOR THE REVENUE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. GROUND NO.1 RELATES TO ADDITION IN SHORT TERM CAPITAL GAIN OF RS.21,35,877/-. THE LD.AR OF THE ASSESSEE SUBMITS THAT THE AO MADE ADDITION SOLELY ON THE BASIS OF AIR INFORMATION THAT ASSESSEE SOLD PIECE OF LAND ALONG WITH CO-OWNER. THE ASSESSEE IS HAVING 1/4 TH SHARE IN PROPERTY IN SURVEY NO.368/A, BLOCK NO.428 OF VILLAGE KANBHA, DISTRICT AHMEDABAD. THE ASSESSEE EXPLAINED BEFORE AO THAT THE SALE TRANSACTION WAS NOT COMPLETED. THE PARTIES ARE LITIGATING IN THE CIVIL COURT. THE PURCHASER ISSUED CHEQUES FOR SALE CONSIDERATION, WHICH WERE DISHONORED. THE ASSESSEE ALONG WITH CO-OWNER MADE OBJECTION BEFORE SUB-REGISTRAR AND THE CONVEYANCE DEED OF SALE TRANSACTION WAS HOLD AND NOT RELEASED TO THE PURCHASER. THE ASSESSEE AND HIS CO-OWNER HAS ALREADY FILED A CIVIL SUIT FOR DECLARATION FOR CANCELLATION OF CONVEYANCE DEED OF SALE TRANSACTION. THE COPY OF CERTIFIED COPY OF CIVIL SUIT IS PLACED ON RECORD. THE LD. AR SUBMITS THAT LD.AO MADE ADDITION SOLELY ON THE BASIS OF AIR INFORMATION HAS NOT CONSIDERED THAT NEITHER THE PROPERTY WAS TRANSFERRED NOR THE SALE CONSIDERATION WAS RECEIVED BY THE ITA NO.1479/AHD/2021 SHRI RAJUBHAI M PATEL (AY 2010-11) 5 ASSESSEE. THE PART OF SALE CONSIDERATION RECEIVED BY ASSESSEE IS SHOWN AS LIABILITIES IN HIS BOOKS OF ACCOUNTS. THE ASSESSEE IS STILL IN POSSESSION OF THE SAID PROPERTY. THE ASSESSEE HAS ALSO FILED AFFIDAVIT BEFORE THIS TRIBUNAL THAT THE ASSESSEE IS STILL IN POSSESSION OF THE SAID PROPERTY. 5. IN SECOND ALTERNATIVE SUBMISSION, THE LD.AR OF THE ASSESSEE SUBMITS THAT SIMILAR ADDITION ON ACCOUNT OF SHORT TERM CAPITAL GAIN WAS MADE AGAINST THE CO-OWNER OF ASSESSEE. HOWEVER, ON APPEAL BEFORE THE LD. CIT(A), IN APPEAL NO.CAS/3/ TRFD/V/137/2014-15 DATED 05.03.2015 THE ENTIRE ADDITION OF CAPITAL GAIN WAS DELETED. THE LD.AR SUBMITS THAT FACTS IN ASSESSEES CASE AND OF HIS CO-OWNERS ARE COMMON. THE LD.CIT(A) DELETED THE ENTIRE ADDITION IN HIS CO-OWNERS BY HOLDING THAT AIR INFORMATION CAN BE USED FOR THE PURPOSE OF INVESTIGATION AND NOT OF ADDITION. THE LD.AR PLACED COPY OF ORDER OF LD.CIT(A) APPEAL NO.CAS/3/TRFD/V/137/2014-15 DATED 05.03.2015. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF THE PARTIES AND HAVE GONE THROUGH THE ORDER OF THE LOWER AUTHORITIES. WE FIND THAT THE ASSESSING OFFICER MADE ADDITION ON THE BASIS OF AIR INFORMATION DESPITE THE FACTS THAT THE ASSESSEE EXPLAINED THAT THE ASSET/ LAND IS NOT TRANSFERRED THE PURCHASER AND THE ASSESSEE IS STILL OCCUPYING THE SAID LAND. THE LD. CIT(A) AFFIRMED THE ACTION OF THE A.O. BY TAKING VIEW THAT TRANSACTION OF SALE ROOK PLACE IN A.Y. 2010- 11AND THAT IN CASE THE ASSESSEE SUCCEED IN CIVIL SUIT AND INCASE INTEREST OR ITA NO.1479/AHD/2021 SHRI RAJUBHAI M PATEL (AY 2010-11) 6 DAMAGE IS AWARDED TO THE ASSESSEE WOULD BE TREATED UNDER THE HEAD OTHER SOURCES. IN OUR VIEW THE ADDITION ON THE SOLE BASIS OF AIR IS NOT SUSTAINABLE UNLESS THE SAME ARE NOT SUPPORTED SOME OTHER CORROBORATED EVIDENCES. THE ASSESSING OFFICER HAS NOT BROUGHT ANY EVIDENCE ON RECORD THAT THE TRANSACTION OF THE LAND IS COMPLETED, PARTICULARLY, WHEN THE ASSESSEE REIGHT FROM THE BEGINNING TOOK HIS STAND THAT THE SALE CONSIDERATION WAS NOT PASSED TO THE ASSESSEE AND THE ASSESSEE HAS FILED CIVIL SUIT FOR DECLARATION AND CANCELLATION OF INSTRUMENT OF SALE. 7. FURTHER, WE FIND THAT ON COMMON SET OF FACTS IN ASSESSEES CO-OWNERS CASE THE LD. CIT(A) IN APPEAL NO.CAS/3/TRFD/V/137/2014-15 DATED 05.03.2015, AFTER SEEKING REMAND REPORT FROM THE AO, DELETED THE ENTIRE ADDITION BY TAKING VIEW THAT 6.1.2 ON THE PERUSAL OF THE DETAILS, IT IS OBSERVED THAT THE APPELLANT HAD CONTENDED DURING THE APPELLATE PROCEEDINGS THAT THE STATE DEED WAS NEVER RELEASED BY THE DISTRICT REGISTRAR OFFICE DUE TO THE DISPUTE BETWEEN APPELLANT AND THE PURCHASER. THE AO WAS DIRECTED VIDE THIS OFFICE LETTER DATED 24.12.2014 TO OBTAIN THE COPY OF THE SALE DEED FROM THE CONCERNED SUB-REGISTRAR OFFICE AS THE APPELLANT HAD EXPRESSED HIS INABILITY TO OBTAIN THE SALE DEED. THE AO VIDE HIS REMAND REPORT DATED 29.03.2015 SUBMITTED THAT THE SUB-REGISTRAR, ODHAV, AHMEDABAD HAS INFORMED THAT THE SALE DEED IS NOT AVAILABLE WITH THEM. THE APPELLANT WAS PROVIDED THE COPY OF THE REMAND REPORT ON 08.04.2015. THE APPELLANT SUBMITTED THAT IT HAD ALREADY INFORMED THE AO DURING THE ASSESSMENT PROCEEDINGS THAT THE SALE DEED HAD ITA NO.1479/AHD/2021 SHRI RAJUBHAI M PATEL (AY 2010-11) 7 NOT BEEN RELEASED BY THE COMPETENT AUTHORITY AS THE TRANSACTION WAS DISPUTED. 6.1.3 THE ABOVE FACTS SHOW THAT DURING THE ASSESSMENT PROCEEDINGS THE APPELLANT HAD INFORMED THE AO VIDE HIS LETTER DATED 07.03.2013 THAT THE LAND SALE TRANSACTION WAS A SUBJECT MATTER OF DISPUTE AND THE SALE DEED HAS OF THE ACT BEEN RELEASED BY THE DISTRICT REGISTRAR OFFICE. THE APPELLANT CONTINUES TO BE IN POSSESSION OF THE LAND EVEN TODAY AS PER THE 7/12 AND 8A REPORT. THE APPELLANT DID NOT RECEIVE THE ENTIRE CONSIDERATION TOWARDS THE SALE AS THE CERTAIN CHEQUES GOT DISHONORED DUE TO THE DISPUTE. THE APPELLANT HAD ALSO FILED A CIVIL SUIT BEFORE THE CIVIL COURT. THE APPELLANT WAS NOT PAID THE ENTIRE SALE CONSIDERATION AS PER THE CIVIL SUIT AND THE CHEQUE NO. 002635 OF ORIENTAL BANK OF COMMERCE OF RS. 2,45,625/- & CHEQUE NO. 002637 OF RS. 2,45,625/- OR CHEQUE NO. 002638 OF RS. 2,45,625/- AND TOTALING RS. 9,82,500/- WERE DISHONORED. THE APPELLANT SUBMITTED THE CERTIFICATES FROM DENA BANK AND SBI REGARDING THE DISHONORING OF THE CHEQUE. IT IS SETTLED LAW THAT ANY TRANSACTION OF IMMOVABLE PROPERTY WITHOUT ADEQUATE CONSIDERATION IS AB-INITIO VOID. THE APEX COURT HAS UPHELD THIS ISSUE OF INADEQUATE CONSIDERATION FOR TRANSFER OF IMMOVABLE PROPERTY BEING AN INVALID TRANSFER IN THE CASE OF (1994) SUPPL 2 SCC 545 BALBIR SINGH VS GURBACHAN KAUR(SC). SIMILAR VIEW HAS BEEN UPHELD IN THE CASE OF (1999) 3 SCC 573 VIDHYADHAR VS MANIKRAO. 8. CONSIDERING THE FACTS THAT ON COMMON SET OF FACTS THE REVENUE HAS GRANTED RELIEF TO THE CO-OWNER, THEREFORE, IN OUR VIEW, THE REVENUE CANNOT TREAT THE ASSESSEE INDIFFERENTLY AS OF HIS CO-OWNER. THIS BENCH ON THE SIMILAR SUBMISSIONS IN CASE OF LATE SHRI MOHANLAL AMBELAL DESAI VS. ITO IN ITA NO.1870/AHD/2015 FOR A.Y.2009-10 HAS TAKEN A VIEW THAT ON SIMILAR SET OF ITA NO.1479/AHD/2021 SHRI RAJUBHAI M PATEL (AY 2010-11) 8 FACTS THE CO-OWNER CAN OF THE ACT BE TREATED INDIFFERENTLY. THE RELEVANT PART OF OUR OBSERVATION IN THE SAID CASE ARE EXTRACTED BELOW; 8. THE HON'BLE MADRAS HIGH COURT IN CIT VS. KUMARARANI MEENAKSHI ACHI (SUPRA) HELD THAT DURING THE SAME ASSESSMENT YEAR SAME QUANTITY OF WEALTH IN POSSESSION OF CO-SHARER IS SUBJECTED TO A LOWER RATE OF TAXATION, IT WOULD BE HIGHLY IMPROPER TO BURDEN A SIMILARLY SITUATED CO-SHARER WITH A HIGHER RATE OF TAX. IF SUCH AN ACTION ON THE PART OF THE ASSESSING AUTHORITIES IS SANCTIONED IT WOULD MILITATE AGAINST THE PRINCIPLE OF EQUALITY OF LAWS ENSHRINED IN ARTICLE 14 OF THE CONSTITUTION. BY FOLLOWING THE SAME PRINCIPLE, THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN CHETANBHAI PRAHLADBHAI GAMI VS. ITO IN ITA NO.2082/AHD/2013 DATED 19.07.2019, THE TRIBUNAL GRANTED RELIEF TO THE ASSESSEE HOLDING THAT WHILE MAKING THE ASSESSMENT OF THE SAME PROPERTY THE SIMILAR TREATMENT SHOULD BE GRANTED. 9. IN VIEW OF THE AFORESAID FACTUAL AND LEGAL DISCUSSION, THE GROUND NO.1 OF THE ASSESSEE ALLOWED. 10. GROUND NO. 2 RELATES TO THE ADDITION OF RS.31,690/- ON ACCOUNT OF DISALLOWANCE OF VEHICLE EXPENSES. THE LD.AR OF THE ASSESSEE SUBMITS THAT ASSESSING OFFICER MADE THE DISALLOWANCE OF DEPRECIATION OF MOTOR VEHICLE OF RS.40,809/- AND VEHICLE EXPENSES OF RS.17,690/- BY TAKING VIEW THAT ASSESSEE HAS NOT CARRIED OUT ANY BUSINESS ACTIVITIES. THE LD.AR FOR THE ASSESSEE SUBMITS THAT ASSESSEE IS A PARTNER IN THREE FIRMS AND DERIVED INCOME FROM REMUNERATION, ITA NO.1479/AHD/2021 SHRI RAJUBHAI M PATEL (AY 2010-11) 9 INTEREST AND PROFIT FROM SUCH FIRMS. REMUNERATION AND INTEREST INCOME EARNED FROM THE PARTNERSHIP FIRM IS TAXABLE UNDER THE HEAD BUSINESS INCOME AND THE ASSESSEE HAS CLAIMED SUCH EXPENSES FOR DISCHARGING HIS DUTIES AS A PARTNER OF A FIRM. THE ASSESSING OFFICER ERRED IN LAW IN NOT TREATING PARTNERS CAPITAL INTEREST AND REMUNERATION AS BUSINESS INCOME. THE ASSESSING OFFICER HAS NOT DISPUTED THE NATURE OF EXPENSES AND NOT POINTED OUT THE UNREASONABLENESS OR EXCESS PAYMENT OF EXPENSES. THE ASSESSING OFFICER SIMPLY DISALLOWED THE DEPRECIATION AND VEHICLE EXPENSE BY TAKING VIEW THAT NO BUSINESS IS CARRIED OUT BY THE ASSESSEE. THE LD. CIT(A) PARTLY UPHELD THE ACTION OF ASSESSING OFFICER TO THE EXTENT OF RS.31,690/-. THE LD. CIT(A) ALLOWED THE DEPRECIATION OF RS.18,099/- AGAINST THE CLAIM OF RS.36,199/- ON THE GROUND THAT BRAKE-UP OF VEHICLE EXPENSES IS NOT GIVEN IN THE ASSESSMENT ORDER AND FURTHER ALLOWED 50% OF VEHICLE EXPENSES. THE LD.AR FOR THE ASSESSEE FURTHER SUBMITS THAT IN ASSESSEES PARTNERS CASE SIMILAR DISALLOWANCE WAS MADE BY THE ASSESSING OFFICER. HOWEVER, ON APPEAL THE LD. CIT(A) IN APPEAL NO.CAS/3/TRFD/V/137/2014-15 DATED 05.03.2015 DELETED THE ENTIRE ADDITION ALONG WITH THE ADDITION ON ACCOUNT OF SHORT TERM CAPITAL GAIN. 11. ON THE OTHER HAND, THE LD. SR.DR FOR THE REVENUE SUPPORTED THE ORDER OF LD. CIT(A). THE LD. SR. DR SUBMITS THAT LD. CIT(A) HAS ALREADY GRANTED SUFFICIENT LEAD TO THE ASSESSEE, DESPITE THE FACT THAT THE ASSESSEE HAS NOT ITA NO.1479/AHD/2021 SHRI RAJUBHAI M PATEL (AY 2010-11) 10 PROVIDED BRAKE-UP OF VEHICLE EXPENSES. 12. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF THE PARTIES AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. WE HAVE NOTED THAT THE ASSESSING OFFICER DISALLOWED THE DEPRECIATION ON VEHICLES AND EXPENDITURE THEREON BY TAKING VIEW THAT ASSESSEE HAS NOT SHOWN ANY BUSINESS ACTIVITY. THE LD. CIT(A) AFTER APPRECIATING THE FACT THAT ASSESSEE HAS DERIVED REMUNERATION FROM THREE PARTNERSHIP FIRMS NAMELY, M/S. SHREE LAXMI TRADERS, M/S. SURBHI CONSTRUCTION CO AND SHREE AMBICA NAGAR OF RS.45,223/- HELD THAT DEPRECIATION ON BIKE CANNOT BE ALLOWED THAT CAR IS BEING SUED BY ASSESSEE FOR EARNING REMUNERATION. THE LD. CIT(A) ALLOWED DEPRECIATION @ 50% ON MOTOR CAR. FURTHER THE DISALLOWANCE ON EXPENSES WERE RESTRICTED TO 50% BY TAKING VIEW THAT NO BREAK UP VEHICLE IS USED FOR EARNING THE REMUNERATION INCOME. WE HAVE NOTED THAT ON SIMILAR DISALLOWANCES, THE REVENUE HAS ALLOWED FULL RELIEF IN CASE OF OTHER PARTNERS OF COMMON FIRMS. THEREFORE, KEEPING IN VIEW OUR FINDING ON GROUND NO.1, THAT THE ASSESSEE CANNOT BE TREATED INDIFFERENTLY ON SIMILAR RELIEF, THEREFORE, THIS GROUND OF APPEAL IS ALLOWED. HOWEVER, BEFORE ALLOWING RELIEF TO THE ASSESSEE THE A.O. IS DIRECTED TO VERIFY THE FACTS THAT SIMILAR DEPRECIATION AND EXPENSES ARE NOT CLAIMED BY THE ASSESSEE AGAINST THE INCOME OF THREE FIRMS, WHERE THE ASSESSEE IS PARTNER. IN THE RESULT, GROUND NO.2 IS ALLOWED. ITA NO.1479/AHD/2021 SHRI RAJUBHAI M PATEL (AY 2010-11) 11 13. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER ANNOUNCED ON 14 JUNE, 2021 BY PLACING RESULT ON THE NOTICE BOARD. SD/- SD/- ( DR ARJUN LAL SAINI) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER SURAT, DATED: 14/06/2021 / SGR COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR 6. GUARD FILE TRUE COPY/ BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, ITAT, SURAT