Appeal Details
Counselvise Citation
[2016] 133 COUNSELVISE.COM (IT) 5887 (ITAT-INDORE)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 10 month(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
05-01-2016
Appeal Filed By
Assessee
Order Result
Partly Allowed
Bench Allotted
DB
Next Hearing Date
18-11-2015
Assessment Year
2008-2009
Appeal Filed On
05-03-2014
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI B.C.MEENA, ACCOUNTANT MEMBER I.T.A.NO. 178/IND/2014 A.Y. : 2008-09 SHRI DINESH KUMAR SHARMA, DY. CIT, CIRCLE 1(1), UJJAIN VS. UJJAIN APPELLANT RESPONDENT PAN NO. AGDPS8579F APPELLANTS BY : SHRI S.S. DESHPANDE, C. A. RESPONDENT BY : SHRI R. A. VERMA, DR O R D E R PER D.T.GARASIA, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A), UJJAIN, DATED 29.11.2013 FOR THE ASSESSM ENT YEAR 2008-09. DATE OF HEARING : 18. 1 1 .2015. DATE OF PRONOUNCEMENT : 05.01.2016 SHRI DINESH KUMAR SHARMA, UJJAIN VS. DY. CIR, CIRCL E 1(1), UJJAIN I.T.A.NO. 178/IND/2014 A.Y. 2008-09 2 2 2. THE ONLY GROUND RAISED BY THE ASSESSEE READS AS UND ER :- THE LD. CIT(A), UJJAIN, HAS ERRED ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW IN CONFIRMING ADDITION OF RS. 13,01,320/- ON ACCOUNT OF EXCESS. DEPRECIATION CLAIM IGNORING THE VERDICT OF HON'BLE I.T.A.T. GIVEN IN THE OWN CASE OF THE ASSESSEE FOR THE SAME ASSESSMENT YEAR TO CALCULATE PROFIT OF THE ASSESSEE @ 8% OF GROSS RECEIPTS. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE I S A CIVIL CONTRACTOR AND GENERATING INCOME FROM CIVIL C ONTRACTS OF GOVERNMENT DEPARTMENTS FOR DEVELOPMENT OF INFRASTRU CTURE ETC. DURING THE PREVIOUS YEAR RELEVANT TO THE ASSES SMENT YEAR 2008-09, THE ASSESSEE SUBMITTED HIS RETURN OF INCOM E CLAIMING INCOME FROM SUCH CONTRACT RECEIPTS. WHILE CALCULATING SUCH TAXABLE INCOME, THE ASSESSEE REDUCED CLAIM OF DEPRECIATION OF RS. 37,12,239/-. THIS CLAIM OF DEPR ECIATION WAS INCLUDING CLAIM OF RS. 13,01,320/- ON CERTAIN PLANT , MACHINERY AND VEHICLES WHICH WAS CLAIMED @ 30%. THE AO WAS OF THE SHRI DINESH KUMAR SHARMA, UJJAIN VS. DY. CIR, CIRCL E 1(1), UJJAIN I.T.A.NO. 178/IND/2014 A.Y. 2008-09 3 3 VIEW THAT DEPRECIATION ON SUCH CLAIM SHOULD BE ALLO WED AND REDUCED 15%, ON THE BASIS OF CALCULATION SHOWN AS U NDER :- S.NO . PARTICULARS OF ASSETS DEPRECIATI ON CLAIMED @ 30% DEPRECIATIO N ALLOWABLE @ 15% EXCESS CLAIM 1. PORCELENE MACHINE 7,54,290 3,77,145 3,77,145 2. PROCELENE MACHINE 7,54,290 3,77,145 3,77,145 3. VIBRATOR ROLLER 3,30,383 1,65,192 1,65,192 4. JCB 3D HYDRAULIC EXCAVATOR 2,75,329 1,37,664 1,37,664 5. JCB 4,07,235 2,03,618 2,03,618 6. ROAD ROLLER 42,488 21,244 21,244 7. ROAD ROLLER 38,525 19,312 19,312 TOTAL 26,02,640 13,01,320 13,01,320 4. ON THE BASIS OF ABOVE CALCULATION, THE AO DISALLOWE D CLAIM OF DEPRECIATION OF RS. 13,01,320/- AND RESTRI CTED ALLOWABLE CLAIM OF DEPRECIATION AT RS. 13,01,320/-. THE ASSESSEE WAS REQUIRED TO CALCULATE 8% OF THE GROSS CONTRACT RECEIPT AND THERE IS NO NEED FOR MAKING SEPARATE DI SALLOWANCE. THE AO HAS DISALLOWED THE EXCESS DEPRECIATION AND A DDED BACK TO THE TOTAL INCOME OF THE ASSESSEE AND HE HAS ADDED THIS AMOUNT AND CALCULATED THE TAX ACCORDINGLY. 5. THE MATTER CARRIED TO THE LD. CIT(A) AND THE LD. C IT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE. SHRI DINESH KUMAR SHARMA, UJJAIN VS. DY. CIR, CIRCL E 1(1), UJJAIN I.T.A.NO. 178/IND/2014 A.Y. 2008-09 4 4 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT THE ASSESSEE IS A CIVIL CONTRACTOR AND DURING THE YEAR SHOWN THE INCOME OF RS. 11,20,000/- UNDER THE HEAD INCOME FROM BUSINESS PROFESSION. THE AO HAS DISAL LOWED EXCESS DEPRECIATION OF RS. 13,01,320/-AGAINST WHICH THE AO WAS DIRECTED TO COMPUTE NET PROFIT AT 8% ON GROSS R ECEIPTS. WE FIND THAT THE AO HAS DISALLOWED THE ENTIRE DEPRECIA TION ON THE GROUND THAT IT HAS CLAIMED EXCESS DEPRECIATION. DEP RECIATION HAS TO BE ALLOWED FROM BUSINESS INCOME OF THE ASSES SEE, IF THE ASSESSEE HAS CLAIMED WRONG DEPRECIATION AND IF THE EXCESS DEPRECIATION IS WITHDRAWN, THEN THE ASSESSEES INCO ME WOULD BE INCREASED BY THAT AMOUNT. IN THIS CASE, THE ADDI TION OF RS. 13,01,320/- WAS ADDED ON ACCOUNT OF EXCESS DEPRECIA TION. THEREFORE, NATURALLY THE ASSESSEES BUSINESS INCOME OF RS. 13,01,320/- IS THE DIFFERENCE CALCULATED FOR TAXATI ON AND ON THE SAME AMOUNT PROFIT OF 8% HAS TO BE APPLIED. THE REFORE, WE DIRECT THE AO TO TAKE 8 % PROFIT ON THE AMOUNT I.E. RS. 13,01,320/-. SHRI DINESH KUMAR SHARMA, UJJAIN VS. DY. CIR, CIRCL E 1(1), UJJAIN I.T.A.NO. 178/IND/2014 A.Y. 2008-09 5 5 7. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED. THIS ORDER HAS BEEN PRONOUNCED IN THE OP EN COURT ON 5 TH JANUARY, 2016. SD/- (B.C.MEENA) ACCOUNTANT MEMBER SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 5 TH JANUARY, 2016. CPU* 19
