Debashis Bhadra, Kolkata V. DCIT, Circle - 1, Midnapore, Midnapore

ITA 1562/KOL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 59636 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-03-2012
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2004-2005
• Appeal Filed On: 15-11-2011
• Court: TRIBUNAL
• Department Lawyers: D ROY
• Assessee Lawyers: K M ROY
• Keywords: Business income; Depreciation
• Section: 143(3); 142(1); 194C; 147; 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA () BEFORE , /AND , . . !' ) [BEFORE SRI MAHAVIR SINGH, JM & SHRI C. D. RAO, AM] # # # # /IN I.T.A NOS. 1562 & 1563/KOL/2011 $% &' $% &' $% &' $% &'/ // / ASSESSMENT YEARS: 2004-05 & 2005-06 DEBASHIS BHADRA VS. DEPUTY COMMISSIO NER OF INCOME-TAX, (PAN: AGGPB7434D) CIRCLE-1, MIDNAPORE. ()* /APPELLANT ) (+,)*/ RESPONDENT ) DATE OF HEARING: 12/03/2012 DATE OF PRONOUNCEMENT: 12/03/2012 )* - . ! /FOR THE APPELLANT: SHRI K. M. ROY +,)* - . ! /FOR THE RESPONDENT: SHRI D. ROY !/ / ORDER PER MAHAVIR SINGH, JM/ , : THESE TWO APPEALS BY ASSESSEE ARE ARISING OUT OF S EPARATE ORDERS OF CIT(A)-XXXVI, KOLKATA IN APPEAL NOS. 1051 & 1049/CIT(A)-XXXVI/KOL /CIRCLE-1,MID/09-10 DATED 24.06.2011. ASSESSMENTS FOR ASSESSMENT YEARS 2004-0 5 AND 2005-06 WERE FRAMED BY DCIT, CIRCLE-I, MIDNAPORE U/S. 143(3) AND 144 OF THE INCO ME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS SEPARATE ORDERS DATED 30.12. 2009 AND 31.12.2009 RESPECTIVELY. 2. THE FIRST COMMON ISSUE IN BOTH THE APPEALS OF AS SESEE IS AGAINST ORDER OF CIT(A) CONFIRMING THE ASSUMPTION OF JURISDICTION DISPUTED THAT THERE IS NO NOTICE U/S 143(2) OF THE ACT ISSUED BY AO. AT THE OUTSET, IT IS NOTICED THAT THE ASSESSMENTS WERE REOPENED U/S 147 OF THE ACT AFTER ISSUING NOTICE U/S 148 ON 24.03.2009. IN BOTH THE YEARS, ASSESSEE NEITHER FILED ANY RETURN OF INCOME NOR FILED ANY REPLY POINTING OUT T HE ORIGINAL RETURN BE TREATED AS RETURN FILED IN RESPONSE TO THE NOTICE ISSUED U/S 148 OF THE ACT . SINCE THERE IS NO REPLY OR RESPONSE FROM THE ASSESSEE, AO FOR BOTH THE YEARS ISSUED NOTICE U /S 142(1) OF THE ACT. ON QUERY FROM THE BENCH, THE LD. COUNSEL FOR ASSESSEE IN HIS REPLY TH AT AO WAS UNDER NO OBLIGATION TO ISSUE NOTICE U/S 143(2) OF THE ACT ONCE THERE IS NO RETUR N OF INCOME FILED IN RESPONSE TO NOTICE U/S 148 OR 142(1) OF THE ACT. ASSESSEE CONCEDED THE POS ITION AND STATED THAT IN THIS POSITION OF LAW THERE IS NO NEED TO ISSUE NOTICE U/S.143(2) OF THE ACT. ONCE THIS IS THE POSITION AND ITA 1562&1563/K/2011 DEBASHIS BHADRA A.Y.04-05 & 05-06 2 ADMITTED BY ASSESSEE, WE HAVE NO QUARREL ABOUT THE PROPOSITION AND WE DECIDE THE ISSUE IN BOTH THE YEARS AGAINST ASSESSEE. THIS ISSUE OF THE ASSESSEE IS DISMISSED. 3. THE NEXT ISSUE IN ITA NO.1563/KOL/2011 FOR A.Y. 2005-06 IS AS REGARDS TO DISALLOWANCE ON ACCOUNT OF WAGES, CARRYING HIRE CHA RGES AND HIRE CHARGES OF MACHINERY ON ACCOUNT OF NON DEDUCTION OF TAX AND BY INVOKING THE PROVISION OF SECTION 40(A)(IA) OF THE ACT. THE FOLLOWING CHART SHOWING DISALLOWANCES OF CERTAI N EXPENSES FOR NON DEDUCTION OF TAX AT SOURCE SL.NO. ON A/C OF AMOUNT 1. WAGES RS.73,08,335/- 2. CARRYING CHARGES RS.10,18,965/- 3. HIRE CHARGES OF MACHINERY RS.12,43,622/- BEFORE US AS WELL AS BEFORE CIT(A), ASSESSEES CONT ENTION WAS THAT WAGES REPRESENT AMOUNT PAID TO VARIOUS WORKERS, MASONS, CONSTRUCTION WORKE RS ENGAGED IN MISCELLANEOUS WORK IN CONNECTION WITH CONTRACT COMPLIED BY ASSESSEE. ACCO RDING TO ASSESSEE, THESE PERSONS ARE WORKING UNDER DIRECT SUPERVISION AND CONTROL OF ASS ESSEE AND NO CONTRACT HAS BEEN AWARDED TO ANY THIRD PARTY I.E. FOR EXECUTION OF CONTRACT. ASS ESSEE PRODUCED ATTENDANCE REGISTER, MEASUREMENT BOOK, PAYMENT REGISTERS BEFORE CIT(A) F OR HIS PERUSAL. ACCORDING TO ASSESSEE, IN VIEW OF THIS FACT THERE IS NO REQUIREMENT IN THE CA SE OF INDIVIDUAL TO DEDUCT TAX IN A.Y. 2005- 06 BECAUSE SECTION 194C(1) OF THE ACT IS AMENDED W. E.F. 01.06.2007 AND FROM THIS DATE THE INDIVIDUAL IS OBLIGED TO DEDUCT TAX. ADMITTEDLY, TH E POSITION IS THAT IN THE PRESENT CASE ASSESSEE IS AN INDIVIDUAL AND A CONTRACTOR AND NOT A SUB-CON TRACTOR. ONCE THIS IS THE POSITION, IN A.Y. 2005-06 HE IS NOT OBLIGED TO DEDUCT TAX AND THIS IS SUE HAS BEEN ADJUDICATED BY TRIBUNAL, WE FIND THAT THIS ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE BY THE DECISION OF COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE ACIT VS SMT. KEYA SETH IN ITA NO.842 & 843/K/2010 FOR ASSESSMENT YEARS 2006-07 & 2007-08 VIDE ORDER DATED 11.03.2011, WHEREIN EXACTLY THE SAME ISSUE HAS BEEN DECIDED AS UNDER: 5. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUG H FACTS AND CIRCUMSTANCES OF THE CASE. IT IS AN ADMITTED POSITION THAT THE ASSESSEE AN INDIVIDUA L CARRYING ON THE BUSINESS OF AYURVEDIC (COSMETIC DIVISION) AND THE CONSULTANCY ON BEAUTICI AN AND ALSO RELATED THERAPIES . AS CLAIMED BY THE ASSESSEE, WHETHER THE PROVISIONS OF SECTION 194(1) AS EXISTED IN ASSESSMENT YEARS 2006-07 & 2007-08 WILL APPLY TO THE ASSESSEE OR NOT? ADMITT EDLY, ASSESSEE HAS NOT DEDUCTED ANY TDS ON ADVERTISEMENT PAYMENT AND ACCORDING TO HER, PROVISI ONS OF SECTION 194C(1) AS EXISTED IN THE RELEVANT ASSESSMENT YEARS WILL NOT OBLITERATE ANY D UTY ON ASSESSEE TO DEDUCT TDS. NOW, WE HAVE TO EXAMINE THIS. THE RELEVANT PROVISIONS OF SECTION 194C(1) & (2) AS EXIST IN ASSESSMENT YEAR 2006-07 & 2007-08 READS AS UNDER :- (1) ANY PERSON RESPONSIBLE FOR PAYING ANY SUM TO A NY RESIDENT (HEREAFTER IN THIS SECTION REFERRED TO AS THE CONTRACTOR) FOR CAR RYING OUT ANY WORK (INCLUDING SUPPLY OF LABOUR FOR CARRYING OUT ANY WORK) IN PURS UANCE OF A CONTRACT BETWEEN THE CONTRACTOR AND-- ITA 1562&1563/K/2011 DEBASHIS BHADRA A.Y.04-05 & 05-06 3 (A) THE CENTRAL GOVERNMENT OR ANY STATE GOVERNMENT ; OR (B) ANY LOCAL AUTHORITY ; OR (C) ANY CORPORATION ESTABLISHED BY OR UNDER A CENTR AL, STATE OR PROVINCIAL ACT ; OR (D) ANY COMPANY, OR (E) ANY CO-OPERATIVE SOCIETY ; OR (F) ANY AUTHORITY, CONSTITUTED IN INDIA BY OR UNDER ANY LAW, ENGAGED EITHER FOR THE PURPOSE OF DEALING WITH AND SATISFYI NG THE NEED FOR HOUSING ACCOMMODATION OR FOR THE PURPOSE OF PLANNIN G, DEVELOPMENT OR IMPROVEMENT OF CITIES, TOWNS AND VIL LAGES, OR FOR BOTH ; OR (G) ANY SOCIETY REGISTERED UNDER THE SOCIETIES REGI STRATION ACT, 1860 (21 OF 1860), OR UNDER ANY LAW CORRESPONDING TO THA T ACT IN FORCE IN ANY PART OF INDIA ; OR (H) ANY TRUST ; OR (I) ANY UNIVERSITY ESTABLISHED OR INCORPORATED BY O R UNDER A CENTRAL, STATE OR PROVINCIAL ACT AND AN INSTITUTION DECLARED TO BE A UNIVERSITY UNDER SECTION 3 OF THE UNIVERSITY GRANTS COMMISSION ACT, 1956 (3 OF 1956), OR (J) ANY FIRM, SHALL, AT THE TIME OF CREDIT OF SUCH SUM TO THE ACC OUNT OF THE CONTRACTOR OR AT THE TIME OF PAYMENT THEREOF IN CASH OR BY ISSUE OF A CHEQUE OR DRAFT OR BY ANY OTHER MODE, WHICHEVER IS EARLIER, DEDUCT AN AMOUNT EQUAL TO-- (I) ONE PER CENT. IN CASE OF ADVERTISING, (II) IN ANY OTHER CASE TWO PER CENT. OF SUCH SUM AS INCOME-TAX ON INCOME COMPRISED THERE IN. (2) ANY PERSON (BEING A CONTRACTOR AND NOT BEING AN INDIVIDUAL OR A HINDU UNDIVIDED FAMILY) RESPONSIBLE FOR PAYING ANY SUM TO ANY RESIDENT (HEREAFTER IN THIS SECTION REFERRED TO AS THE SUB-C ONTRACTOR) IN PURSUANCE OF A CONTRACT WITH THE SUB-CONTRACTOR FOR CARRYING OUT , OR FOR THE SUPPLY OF LABOUR FOR CARRYING OUT, THE WHOLE OR ANY PART OF T HE WORK UNDERTAKEN BY THE CONTRACTOR OR FOR SUPPLYING WHETHER WHOLLY OR P ARTLY ANY LABOUR WHICH THE CONTRACTOR HAS UNDERTAKEN TO SUPPLY SHALL, AT T HE TIME OF CREDIT OF SUCH SUM TO THE ACCOUNT OF THE SUB-CONTRACTOR OR AT THE TIME OF PAYMENT THEREOF IN CASH OR BY ISSUE OF A CHEQUE OR DRAFT OR BY ANY OTHER MODE, WHICHEVER IS EARLIER, DEDUCT AN AMOUNT EQUAL TO ONE PER CENT OF SUCH SUM AS INCOME-TAX ON INCOME COMPRISED THEREIN. XXXX XXXX XXXX ITA 1562&1563/K/2011 DEBASHIS BHADRA A.Y.04-05 & 05-06 4 6. FROM THE ABOVE PROVISIONS OF SECTION 194C(1), IT IS CLEAR THAT THE PAYMENTS MADE BY INDIVIDUAL OR HINDU UNDIVIDED FAMILY DOES NOT COME WITHIN THE AMBIT OF TDS I.E. THE EXPENDITURE INCURRED FOR ADVERTISEMENT AS INDIVIDUA L AND HUF ARE SPECIFICALLY EXCLUDED IN THE ABOVE PROVISIONS. THE PROVISION OF SUB-SECTI ON (2) APPLIES ONLY TO PAYMENTS MADE TO SUB-CONTRACTORS AND NOT TO CONTRACTORS. ACCORDIN GLY, ASSESSING OFFICER CAN NOT MADE DISALLOWANCE BY INVOKING PROVISIONS OF SECTION 40A( IA), AS PRESENT ASSESSEE BEING AN INDIVIDUAL IS NOT LIABLE TO DEDUCT TAX IN VIEW OF P ROVISIONS OF SECTION 194C(1) AS EXISTED IN THE RELEVANT ASSESSMENT YEARS. NO DOUBT, ASSESSE ES TURNOVER EXCEEDS THE MONETARY LIMIT AS SPECIFIED UNDER CLAUSE (A) OR CLAUSE (B) O F SECTION 44AB AND THE ASSESSEES ACCOUNTS ARE SUBJECT TO AUDIT AND THE ASSESSEE HAS AUDITED HER ACCOUNTS AND FILED TAX AUDIT REPORT ALONG WITH RETURN OF INCOME. WE FIND T HAT THE ASSESSING OFFICER HAS MADE DISALLOWANCE IN VIEW OF THE AMENDED PROVISIONS OF S ECTION 194C(1) BY THE FINANCE ACT, 2007 WITH EFFECT FROM 01.06.2007 WHEREIN IT IS PRO POSED TO AMEND SUB-SECTION (1) IN SECTION 194C SO AS TO INCLUDE PAYMENTS MADE BY ANY INDIVIDUAL OR HINDU UNDIVIDED FAMILY WHOSE TOTAL SALES / GROSS RECEIPTS OR TURNOV ER FROM THE BUSINESS OR PROFESSION CARRIED ON BY HIM EXCEED MONETARY LIMIT SPECIFIED U NDER CLAUSE (A) OR CLAUSE (B) OR SECTION 44AB DURING THE FINANCIAL YEAR OR IMMEDIATE LY PRECEDING FINANCIAL YEAR IN WHICH SUCH SUM IS CREDITED OR PAID TO THE ACCOUNT OF THE CONTRACTOR. THIS AMENDMENT TAKES EFFECT FROM 1 ST DAY OF JUNE, 2007 AND IS APPLICABLE FOR AND FROM A SSESSMENT YEAR 2008-09. IN SECTION 194C(1) WITH EFFECT FROM 01.06.2007, BY THE FINANCE ACT, 2007, CLAUSE AS INSERTED, READS AS UNDER :- (K) ANY INDIVIDUAL OR A HINDU UNDIVIDED FAMILY, WH OSE TOTAL SALES, GROSS RECEIPTS OR TURNOVER FROM THE BUSINESS OR PRO FESSION CARRIED ON BY HIM EXCEED THE MONETARY LIMITS SPECIFIED UNDER CLAU SE (A) OR CLAUSE (B) OF SECTION 44AB DURING THE FINANCIAL YEAR IMMEDIATELY PRECEDING THE FINANCIAL YEAR IN WHICH SUCH SUM IS CREDITED OR PAI D TO THE ACCOUNT OF THE CONTRACTOR, SHALL, AT THE TIME OF CREDIT OF SUCH SU M TO THE ACCOUNT OF THE CONTRACTOR OR AT THE TIME OF PAYMENT THEREOF IN CAS H OR BY ISSUE OF A CHEQUE OR DRAFT OR BY ANY OTHER MODE, WHICHEVER IS EARLIER, DEDUCT AN AMOUNT EQUAL TO - (I) ONE PER CENT IN CASE OF ADVERTISING, (II)IN ANY OTHER CASE TWO PER CENT, OF SUCH SUM AS INCOME-TAX ON INCOME COMPRISED THERE IN : PROVIDED THAT NO INDIVIDUAL OR A HINDU UNDIVIDED FA MILY SHALL BE LIABLE TO DEDUCT INCOME-TAX ON THE SUM CREDITED OR PAID TO THE ACCOUNT OF THE CONTRACTOR WHERE SUCH SUM IS CREDITED OR PAID E XCLUSIVELY FOR PERSONAL PURPOSES OF SUCH INDIVIDUAL OR ANY MEMBER OF HINDU UNDIVIDED FAMILY. 7. WE FIND FROM THE ARGUMENTS OF LD.SR. DR THAT REV ENUE WANT TO INVOKE PROVISIONS OF SUB-SECTION (2) OF SECTION 194C FOR FURTHERANCE OF THIS CASE BUT WE ARE OF THE CONSIDERED VIEW THAT SECTION 194C(2) WILL APPLY TO THE PAYMENT S MADE TO SUB-CONTRACTORS BY THE CONTRACTOR AND NOT BY THE ASSESSEE. IN THE PRESENT CASE, IT IS AN ADMITTED POSITION THAT THE ASSESSEE HAS MADE PAYMENTS ON ADVERTISEMENT TO THE CONTRACTORS AND NOT TO SUB- CONTRACTORS. FURTHER AS REFERRED BY LD. COUNSEL FOR THE ASSESSEE, THIS PROVISION WAS EXPLAINED BY CBDT CIRCULAR NO.3 OF 2008 DATED 12.03 .2008 WHICH IS REPORTED IN (2008)299 ITR 8 (STATUTE) AND THE RELEVANT CIRCULAR AS REPORTED AT PAGE 71, READS AS UNDER :- 54. EXPANSION OF SCOPE OF THE PROVISIONS OF SECTIO N 194C. 54.1 THE EXISTING PROVISIONS OF SUB-SECTION (1) OF SECTION 194C PROVIDED FOR DEDUCTION OF INCOME-TAX AT SOURCE FROM ANY SUM CREDITED OR PAID TO THE RESIDENT CONTRACTOR FOR CARRYING OUT ANY WORK (INCL UDING SUPPLY OF LABOUR FOR CARRYING OUT ANY WORK) IN PURSUANCE OF A CONTRA CT BETWEEN THE CONTRACTOR AND THE GOVERNMENT, LOCAL AUTHORITIES, S TATUTORY CORPORATIONS, ITA 1562&1563/K/2011 DEBASHIS BHADRA A.Y.04-05 & 05-06 5 COMPANIES, CO-OPERATIVE SOCIETIES, STATUTORY AUTHOR ITIES ENGAGED IN PROVIDING HOUSING ACCOMMODATION, ETC., REGISTERED S OCIETIES, TRUSTS, UNIVERSITIES AND FIRMS. THE RATE OF TDS IS 1% IN RE SPECT OF ADVERTISING CONTRACTS AND 2% IN OTHER CASES. 54.2 THE EXISTING PROVISIONS OF SUB-SECTION (1) OF SECTION 194C DID NOT PROVIDE FOR DEDUCTION OF TAX AT SOURCE ON PAYMENTS MADE BY AN INDIVIDUAL OR A HINDU UNDIVIDED FAMILY TO A CONTRACTOR. 54.3 CONSIDERING THE RISING NUMBER OF CONTRACTS BEI NG AWARDED BY INDIVIDUALS AND HUFS CARRYING ON BUSINESS OR PROFES SION AND THE INCREASING VOLUME OF SUCH PAYMENTS TO CONTRACTORS, IT WAS FELT THAT THERE IS NEED TO REQUIRE SUCH PERSONS TO DEDUCT TAX AT SOURC E FROM PAYMENTS MADE BY THEM TO CONTRACTORS. 54.4 THERE WOULD BE GENUINE DIFFICULTIES IF INDIVID UALS OR HUFS WITH SMALL BUSINESS TURNOVERS OR GROSS RECEIPTS OF PROFESSION ARE REQUIRED TO DEDUCT TAX AT SOURCE. AN EXCEPTION IN SUCH CASES WOULD BE JUSTIFIED. SIMILARLY THE CONTRACTS AWARDED BY AN INDIVIDUAL OR A MEMBER OF H UF OF HUF EXCLUSIVELY FOR PERSONAL PURPOSES MERIT EXCLUSION. 54.5 ACCORDINGLY, THE FINANCE ACT, 2007, HAS SUBSTI TUTED THE SAID SUB-SECTION (1) TO INCLUDE IN ITS AMBIT SUCH INDIVI DUAL OR A HINDU UNDIVIDED WHOSE TOTAL SALES, GROSS RECEIPTS OR TURN OVER FROM THE BUSINESS OR PROFESSION CARRIED ON EXCEED THE MONETARY LIMITS SPECIFIED UNDER CLAUSE (A) OR CLAUSE (B) OF SECTION 44AB DURING THE FINANC IAL YEAR IMMEDIATELY PRECEDING FINANCIAL YEAR IN WHICH SUM IS CREDITED O R PAID TO THE ACCOUNT OF THE CONTRACTOR. THIS AMENDMENT SHALL NOT APPLY IN R ESPECT OF PAYMENTS MADE TO A CONTRACTOR BY ANY INDIVIDUAL OR A MEMBER OF A HINDU UNDIVIDED FAMILY EXCLUSIVELY FOR THEIR PERSONAL PURPOSES. 54.6 APPLICABILITY - THIS AMENDMENT WILL TAKE EFFEC T FROM THE 1ST DAY OF JUNE, 2007. 8. IN VIEW OF THE ABOVE CLEAR PROVISIONS OF SECTION 194(1) AS EXISTING IN ASSESSMENT YEARS 2006-07 & 2007-08, I.E. RELEVANT ASSESSMENT Y EARS IN THE PRESENT APPEALS, IT IS CLEAR THAT THE ASSESSEE IS UNDER NO OBLIGATION T O DEDUCT TDS ON THE EXPENDITURE OF ADVERTISEMENT, AS THE ASSESSEE BEING AN INDIVIDU AL, AND THE CLAIM OF THE ASSESSEE IS AS PER PROVISIONS OF LAW. ONCE THE ASSESSEE IS N OT LIABLE TO DEDUCT TDS UNDER THE PROVISION OF SECTION 194C(1), THE PROVISIONS OF SEC TION 40A(IA) FOR MAKING DISALLOWANCE OF EXPENDITURE FOR NON-DEDUCTION OF TD S WILL NOT APPLY. WE FURTHER FIND THAT, IT IS NOT THE CASE OF THE REVENUE THAT T HE EXPENSES ARE BOGUS OR UNREASONABLE OR EXCESSIVE BUT THE DISALLOWANCE IS M ADE MERELY FOR NON-DEDUCTION OF TDS. ACCORDINGLY, WE ARE OF THE CONSIDERED VIEW THAT CIT(A) HAS RIGHTLY DELETED THE DISALLOWANCE AND WE CONFIRM THE SAME. 10. AS THE ISSUE RAISED BY THE ASSESSEE AND REVENUE IS EXACTLY ON SIMILAR FACTS IN THE PRESENT CASE, TAKING A CONSISTENT VIEW, WE ARE OF T HE VIEW THAT THE AMENDED PROVISIONS OF SECTION 194C(1) OF THE ACT WILL NOT APPLY TO THE PR ESENT ASSESSMENT YEAR ON THE ASSESSEE. ACCORDINGLY, THIS ISSUE OF THE ASSESSEES APPEAL IS ALLOWED AND THAT OF THE REVENUE IS DISMISSED. IN VIEW OF THE ABOVE AND RESPECTFULLY FOLLOWING DEC ISION CITED SUPRA, WE ALLOW THIS GROUND IN FAVOUR OF ASSESSEE. ITA 1562&1563/K/2011 DEBASHIS BHADRA A.Y.04-05 & 05-06 6 4. THE NEXT ISSUE IN THIS APPEAL OF THE ASSESSEE IS AGAINST THE ORDER OF CIT(A) CONFIRMING THE DISALLOWANCE OF DEPRECIATION ON CAR AND FUEL CH ARGES AT 20%. 5. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT AO MADE DISALLOWANCE OF DEPRECIATION O N CAR AND FUEL AND LUBRICANTS OUT OF THE CLAIM OF ASSESSEE AT RS.75,583/- AND RS.87,137/- RE SPECTIVELY AT 20% THEREBY EFFECTIVELY AO MADE DISALLOWANCE OF RS.32,544/-. THE ASSESSEE CONT ENDED THAT THIS DISALLOWANCE IS ON THE HIGHER SIDE AND THERE IS NO BASIS EVEN. WE FIND THA T THERE IS NO DENIAL THAT THERE IS NO PERSONAL USE OF VEHICLE. IN SUCH A POSITION, WE ARE OF THE V IEW THAT REASONABLE 10% WILL BE JUSTIFIED. ACCORDINGLY, WE DIRECT AO TO RESTRICT THE DISALLOWA NCE AT 10% AND RE-COMPUTE THE INCOME ACCORDINGLY. 6. IN THE RESULT, ASSESSEES APPEAL IN ITA NO.1562/ KOL/2011 IS DISMISSED AND ITA NO.1563/KOL/2001 IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE COURT. SD/- SD/- [ . ., !' ] [ , ] [ C.D.RAO ] [ MAHAVIR SINGH ] ACCOUNTANT MEMBER JUDICIAL MEMBER ( (( ( ' ' ' ') )) ) DATE: 12 TH MARCH, 2012 R.G.(.P.S.) !/ - +1 2!1&3- COPY OF THE ORDER FORWARDED TO: 1 . SHRI DEBASHIS BHADRA, SUN CITY COMPLEX BLOCK-E, FLA T NO.701, 105/1, BIDHAN NAGAR STATION ROAD, KOLKATA-700067. 2 THE D.C.I.T., CIRCLE-1, MIDNAPORE. 3 . THE CIT, 4. THE CIT(A)-XXXVI, KOLKATA 5 . DR, KOLKATA BENCHES, KOLKATA ,1 +/ TRUE COPY, !/$9/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES