Amar Singh Bhandari, BHILWARA V. ITO, BHILWARA

ITA 150/JODH/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1961 (ITAT-JODHPUR)
• Duration Of Justice: 1 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-05-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 20-03-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K MEENA
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, JODHPUR BENCH , JODHPUR BEFORE: SHRI BHAGCHAND, AM & SHRI PARTHA SARTHI CHA UDHARY, JM ITA NO. 150/JODH/2017 ASSESSMENT YEAR : 2011-12 AMAR SINGH BHANDARI, C/O- HOTEL HARSH PALACE, OLD RTO ROAD, GANDHI NAGAR, BHILWARA. VS. I.T.O., WARD-1, BHILWARA. PAN /TAN NO.: AAPPB 4005 P APPELLANT RESPONDENT ASSESSEE BY : NONE REVENUE BY: SHRI S.K. MEENA (JCIT D.R.) DATE OF HEARING : 02/05/2017 DATE OF PRONOUNCEMENT : 02/05/2017 ORDER PER: PARTHA SARTHI CHAUDHARY, J.M. THIS IS AN APPEAL FILED BY THE ASSESSEE EMANATES FR OM THE ORDER DATED 13/12/2016 PASSED BY THE LD. CIT(A), AJMER FOR THE ASSESSMENT YEAR 2011- 12, WHEREIN THE ASSESSEE HAS TAKEN FOLLOWING GROUND S OF APPEAL: 1. THAT A.O DISALLOWED HIGHER RATE OF DEPRECIATIO N CLAIMED ON DUMPER AND VOLVO BY STATING THAT 'ONLY VEHICLES WHICH ARE USED FOR THE BUSINESS OF GIVING THEM ON HIRE ARE ELIGIBLE RATE OF DEPRECIATION'. I T HAS REFERRED THE CASE LAW OF CIT VS BANSI WALA IRON & STEEL RE-ROLLING MILLS (2003) 185 CTR 280(RAJ). 2. THAT CIT(A) STATED THAT THE ASSESSEE CLAIMED DEP RECIATION ON DUMPERS AND VOLVO MACHINES' @30% WHICH IS NOT ALLOWABLE ASSUMING THE JURISDICTION UNDER NEW APPENDIX I GIVEN IN INCOME TAX RULE (EFFECTIVE FROM A. Y. 2006-07 ONWARDS) STATING THAT RATE OF 30% IS ONLY FOR MOTOR BUSES, MOTOR LORRIES AND MOTOR TAXIES USED IN A BUSINESS OF RUNNING THEM ON HIRE. ITA 150/JODH/2017_ AMAR SINGH BHANDARI VS. ITO 2 3. THAT ASSESSEE HAS GIVEN THE DUMPER AND VOLVO ON HIRE AND ALSO EARNED SUBSTANTIAL AMOUNT OF HIRE CHARGES AMOUNTING TO RS 8,23,530/- WHICH IS FULLY VERIFIABLE AND A.O TOO HAS NOT CONFLICTED WITH THAT FACT. 4. THAT FROM PLAIN READING OF NEW APPENDIX 1 GIVEN IN INCOME TAX RULE, IT CANNOT BE CONCLUDED THAT THE TRUCK AND LORRIES SHOULD BE U TILIZED EXCLUSIVELY FOR THE PURPOSE OF PLYING ON HIRE AND THAT VEHICLES WERE BE ING PARTLY USED FOR BUSINESS PURPOSES, WHICH ENTITLE THE ASSESSEE TO TH E HIGHER RATE OF DEPRECIATION. FURTHER HERE IT IS NOT THE FINDING THAT THE TRUCK WAS USED ONLY FOR THE PURPOSE OF CARRYING THE RAW MATERIAL AND OF THE MANUFACTURE D GOODS OF THE ASSESSEE. 5. THAT A.O RELIES ON CASE LAW OF CIT VS BANSI WALA IRON & STEEL RE-ROLLING MILLS (2003) 185 CTR 280(RAJ), IN THAT CASE LAW ITSELF, A SSESSEE IS ALLOWED HIGHER RATE OF DEPRECIATION ON ACCOUNT OF VEHICLE IS USED FOR EARNING RENTAL INCOME AND PARTLY FOR OWN BUSINESS PURPOSE. THUS CASE IS D ECIDED IN FAVOUR OF ASSESSEE. 6. THAT THERE IS NO DISPUTE OF SUBSTANTIAL RENTAL I NCOME EARNED FROM HIRING OF DUMPER & VOLVO FROM ORDERS BY A.O AND CIT(APPEAL) A ND THUS DISALLOWANCE OF RS 12,03,668/- ON ARBITRARY BASIS IS PURELY UNLA WFUL AND SO THE DISALLOWANCE SHOULD BE DELETED. 2. TODAY I.E. ON 02/5/2017, THIS CASE WAS FIXED FOR HEARING, BUT NOBODY WAS PRESENT ON BEHALF OF THE ASSESSEE, NEITHER ANY ADJOURNMENT WAS SOUGHT. IT, THEREFORE, APPEARS THAT THE ASSESSEE IS NOT INT ERESTED TO PROSECUTE THE MATTER. THE LAW AIDS THOSE WHO ARE VIGILANT, NOT TH OSE WHO SLEEP UPON THEIR RIGHTS. THIS PRINCIPLE IS EMBODIED IN WELL KNOWN DI CTUM, VIGILANTIBUS ET NON DORMIENTIBUS JURA SUB VENIUNT. CONSIDERING THE FACTS AND KEEPING IN VIEW THE PROVISIONS OF RULE 19(2) OF THE INCOME-TAX APPELLATE TRIBUNAL RULES AS WERE CONSIDERED IN THE CASE OF CI T VS. MULTIPLAN INDIA LTD., (38 ITD 320)(DEL), WE TREAT THIS APPEAL AS UNADMITT ED. ITA 150/JODH/2017_ AMAR SINGH BHANDARI VS. ITO 3 3. SIMILAR VIEW HAS BEEN TAKEN BY THE HONBLE MADH YA PRADESH HIGH COURT IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKA R VS. CWT (223 ITR 480) WHEREIN IT HAS BEEN HELD AS UNDER: IF THE PARTY, AT WHOSE INSTANCE THE REFERENCE IS M ADE, FAILS TO APPEAR AT THE HEARING, OR FAILS IN TAKING STEPS FOR PREPARATION OF THE PAPER BOOKS SO AS TO ENABLE HEAR ING OF THE REFERENCE, THE COURT IS NOT BOUND TO ANSWER THE REFERENCE. 4. SIMILARLY, HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF NEW DIWAN OIL MILLS VS. CIT (2008) 296 ITR 495) RETURNE D THE REFERENCE UNANSWERED SINCE THE ASSESSEE REMAINED ABSENT AND T HERE WAS NOT ANY ASSISTANCE FROM THE ASSESSEE. 5. THEIR LORDSHIPS OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. B. BHATTACHARGEE & ANOTHER (118 ITR 461 AT PAGE 477-4 78) HELD THAT THE APPEAL DOES NOT MEAN, MERE FILING OF THE MEMO OF AP PEAL BUT EFFECTIVELY PURSUING THE SAME. 6. IN THIS CASE, WE FIND THAT THE APPEAL IS TIME B ARRED BY 14 DAYS AND THE ASSESSEE HAS NOT FILED ANY CONDONATION PETITION. TH E NOTICE WAS DULY SERVED ON THE ASSESSEE REGARDING THE DATE OF HEARING OF TH IS APPEAL. THE GROUNDS OF APPEAL TAKEN BY THE ASSESSEE ARE ALSO DEFECTIVE. S O BY RESPECTFULLY FOLLOWING ITA 150/JODH/2017_ AMAR SINGH BHANDARI VS. ITO 4 THE VIEW TAKEN IN THE CASES CITED SUPRA, WE DISMISS THE APPEAL FOR NON- PROSECUTION. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 02/05/2017. SD/- SD/- (BHAGCHAND) (PARTHA SARTHI CHAUDHARY) ACCOUNTANT MEMBER JUDICIAL MEMBER JODHPUR DATED:- 02 ND MAY, 2017. *RANJAN COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SHRI AMAR SINGH BHANDARI, BHILWARA. 2. THE RESPONDENT- THE ITO, WARD-1, BHILWARA. 3. CIT 4. THE CIT(A) 5. DR, ITAT, JODHPUR 6. GUARD FILE (ITA NO. 150/JODH/2017) BY ORDER, ASST. REGISTRAR