The ITO,S.K. Ward-3, Himatnagar V. Shri Sanjay B.Mehta, Himatnagar

ITA 1542/AHD/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 5872 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 11-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P R SHAH
• Assessee Lawyers: P R GHOSH
• Keywords: Depreciation; Audit objection; Tax effect
• Section: 154

Judgement Text

- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH SMC AHMEDABAD BEFORE SHRI D.C.AGRAWAL, ACCOUNTANT MEMBER INCOME-TAX OFFICER, WARD-3, S.K. WARD-3, HIMATNAGAR. VS. SHRI SANJAY B. MEHTA, PROP. SANJAY ENTERPRISE, B.A. MEHTA ESTATE, DHANDHA ROAD, HIMATNAGAR -383 001. (APPELLANT) .. (RESPONDENT) ASSESSEE BY :- SHRI P. R. GHOSH, DR REVENUE BY:- SHRI P. R. SHAH, AR O R D E R PER D. C. AGRAWAL, ACCOUNTANT MEMBER . THIS IS AN APPEAL FILED BY THE REVENUE RAISING FOL LOWING GROUNDS:- 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DEL ETING THE DISALLOWANCE OF EXCESS DEPRECIATION OF RS.67,427/- 1.2 THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE FACT THAT THE ASSESSEE HAD CLAIMED DEPRECIATION ON LOADING TRUCK AT 40% AS AGAINST 20% ALLOWABLE AS PER THE AC T. THEREFORE, THE AO HAS RIGHTLY DISALLOWED THE EXCESS CLAIM OF D EPRECIATION @ 20%. 2. THE LD. DR CONTENDED THAT THIS IS A CASE WHERE R EVENUE AUDIT OBJECTION HAS BEEN ACCEPTED BY THE DEPARTMENT AND, THEREFORE, SUCH APPEAL IS PREFERABLE BY THE REVENUE. HE REFERRED TO PARA 8 FROM INSTRUCTION NO.5/2008 DATED 15.5.2008 WHICH IS AS U NDER :- ITA NO.1542/AHD/2010 ASST. YEAR :2005-06 2 8. ADVERSE JUDGMENTS RELATING TO THE FOLLOWING SHO ULD BE CONTESTED IRRESPECTIVE OF THE TAX EFFECT. (A) WHERE THE CONSTITUTIONAL VALIDITY OF THE PROVISIONS OF AN ACT OR RULE ARE UNDER CHALLENGE. (B) WHERE BOARDS ORDER, NOTIFICATION, INSTRUCTION OR C IRCULAR HAS BEEN HELD TO BE ILLEGAL OR ULTRA VIRES. (C) WHERE REVENUE AUDIT OBJECTION IN THE CASE HAS BEEN ACCEPTED BY THE DEPARTMENT. 3. ON THE OTHER HAND, THE LD. AR SUBMITTED THAT TAX EFFECT INVOLVED IN THIS APPEAL IS LESS THAN RS.2 LACS. AS PER THE INST RUCTION OF CBDT NO/5 OF 2008 DATED 15.05.2008 THE APPEAL IS NOT MAINTAINABL E. EVEN ON MERITS, THE ISSUE OF ALLOWING DEPRECIATION ON THE COMMERCIAL VE HICLE USED FOR COMMERCIAL PURPOSE IS A DEBATABLE ISSUE AND HENCE A CTION U/S 154 CANNOT BE TAKEN. THEREFORE, THE DEPARTMENTAL APPEAL BE DIS MISSED. 4. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE MATERIAL ON RECORD. IN MY CONSIDERED VIEW THE LD. CIT(A) HAS RI GHTLY DELETED THE ADDITION. THE REVENUE EFFECT IN THIS APPEAL IS LESS THAN RS.2 LACS. DEPARTMENT OUGHT NOT HAVE FILED THE APPEAL WHERE TH E TAX EFFECT IS BELOW RS.2 LACS. MY VIEW IS SUPPORTED BY THE DECISION OF HON. DELHI HIGH COURT IN THE CASE OF CIT VS. MANGLAM RICINUS LTD. ( 2008) 174 TAXMAN 186 (DEL) AND OTHERS. THE EXECUTIVE INSTRUCTIONS UN DER WHICH APPEAL IS FILED, ARE BINDING ON THE DEPARTMENT AND NOT ON COU RTS OR TRIBUNAL. THEREFORE, I DISMISS THE APPEAL FILED BY THE REVENU E IN LIMINE. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER WAS PRONOUNCED IN OPEN COURT ON 8/7/2010. SD/- (D.C.AGRAWAL) ACCOUNTANT MEMBER AHMEDABAD, DATED : 8/7/2010 3 MAHATA/- COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD