Shri Rajendra Prasad Chwrasia, Hooghly V. ITO, Ward - 1(2), Hooghly, Hooghly

ITA 1783/KOL/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99932 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 9 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2015
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 30-12-2011
• Court: TRIBUNAL
• Department Lawyers: N O N E
• Assessee Lawyers: S P DUTTA
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA [BEFORE SHRI MAHAVIR SINGH, JM & SHRI WASEEM AHMED , AM] I.T.A NO.1783/KOL/2011 ASSESSMENT YEAR: 2008-09 SHRI RAJENDRA PRASAD CHAWRASIA VS. INCOME-TAX OF FICER, WD-1(2), HOOGHLY (PAN: ACEPC6478J) ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 26.10.2015 DATE OF PRONOUNCEMENT: 29 .10.2015 FOR THE APPELLANT: SHRI S. P. DUTTA, ADVOCATE FOR THE RESPONDENT: N O N E ORDER PER SHRI MAHAVIR SINGH, JM: THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A)-XXXVI, KOLKATA IN APPEAL NO.351/CIT(A)-XXXVI/KOL/WD-1(2),HG/10-11 DATED 12.1 0.2011. ASSESSMENT WAS FRAMED BY ITO, WARD-1(2), HOOGHLY U/S. 144 OF THE INCOME-T AX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2008-09 VIDE HIS ORD ER DATED 23.12.2010 2. AT THE OUTSET, IT IS NOTICED THAT THE REVENUE HA S MOVED ADJOURNED PETITION IN ALMOST 19 CASES OUT OF THE LISTED CASE OF 23. THIS EN BLOCK ADJOURNMENT IS NOT POSSIBLE AND HENCE, THE POSSIBLE CASE, WE HAVE TAKEN UP FOR HEARING AND DEC IDED THE ISSUE BY REJECTING THE ADJOURNMENT PETITION. IN THIS CASE ALSO, WE HAVE R EJECTED THE ADJOURNMENT PETITION AND HEARD THE APPEAL. 3. THE TWO INTER-CONNECTED ISSUES IN THIS APPEAL OF ASSESSEE IS AGAINST THE ORDER OF CIT(A) CONFIRMING THE DISALLOWANCE OF ESTIMATED EXP ENDITURE ON ACCOUNT OF REPAIR AND MAINTENANCE OF RENTED LORRIES TOTALING TO RS.3,63,5 89/- AND REPAIR AND MAINTENANCE AND REPLACEMENT OF TYRES OF ASSESSEES OWN LORRIES AT R S.3,41,708/- OUT OF TOTAL EXPENDITURE OF RS.6,83,416/-. FOR THIS, ASSESSEE HAS RAISED FOLLO WING THREE GROUNDS: 1.THAT THE DISALLOWANCE OF EXPENDITURE A SUM OF R S.3,63,589.00 WHICH WAS ORIGINALLY INCURRED BY YOUR APPELLANT WAS TOTALLY UNJUSTIFIED, ILLEGAL AND BAD IN LAW AND SO THE ENTIRE DISALLOWANCE SHALL BE ALLOWED IN FULL. 2. THAT OUT OF TOTAL EXPENDITURE A SUM OF RS.6,83, 416.00 FOR REPAIR AND MAINTENANCE AND THE AO ONLY ALLOWED 50% EXPENSES AND DISALLOWED REST 50 % WHICH WAS EXTREMELY BAD IN LAW AND ULTRAVIRES AND SO THE TOTAL EXPENDITURE SHALL BE AL LOWED. 3. THAT THE ITO PASSED IN HIS REMAND REPORT DATED 2 2.08.2011 AND CONTAINED A CERTAIN PERCENTAGE OF DISALLOWANCE OF THE REPAIR TO LORRY B UT WITHOUT COGNIZANCE OF SUCH REPORT, AO ALLOWED ONLY 50% OF TOTAL EXPENSES INCURRED BY YOUR APPELLANT AND DISALLOWED IN FULL AMOUNT OF RS.3,63,589.00 AGAINST REPAIR OF RENTED LORRY. 2 ITA NO.1783/K/2011 SH. RAJENDRA PRASAD CHAWRASIA AY 2008-09 4. BRIEFLY STATED FACTS ARE THAT THE AO WITHOUT ANY REASON DISALLOWED THE CLAIM OUT OF OTHER EXPENSES OF RS.26,70,426/- AT 50% I.E. RS.13, 35,213/-. THESE EXPENSES INCLUDE REPAIR AND MAINTENANCE ON ACCOUNT OF REPLACEMENT OF TYRES OF RENTED LORRIES, OWN LORRIES AND OTHER EXPENSES OF RS.10,47,005/-, WHICH INCLUDES EXPENSES INCURRED FOR REPAIR AND REPLACEMENT OF TYRES OF RENTED LORRIES AT RS.3,63,589/-. APART FR OM THIS, THE AO ALSO DISALLOWED EXPENDITURE ON REPLACEMENT OF TYRES AND REPAIRS OF ASSESSEES O WN LORRIES AT RS.6,83,416/-, THEREBY THE TOTAL EXPENDITURE UNDER THIS HEAD DISALLOWED AT RS. 10,47,005/-. THE CIT(A) CONFIRMED THE DISALLOWANCE OF REPAIRS AND REPLACEMENT OF TYRES OF RENTED LORRIES AT RS.3,63,589/- BUT RESTRICTED THE DISALLOWANCE OF EXPENSES OF OWN LORR IES AT RS.3,41,708/- I.E. 50% OF THE TOTAL EXPENDITURE OF RS.6,83,416/-. ACCORDINGLY, THE CIT (A) CONFIRMED THE ADDITION ON ACCOUNT OF RENTED LORRIES OF RS.3,63,589/- PLUS EXPENSES ON OWN LORRIES AT RS.3,41,708/- TOTALING TO RS.7,05,297/-. AGGRIEVED, ASSESSEE CAME IN APPEAL BEFORE TRIBUNAL. 5. WE HAVE HEARD LD. A.R. OF THE ASSESSEE AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE ASSESSMENT IS EX PARTE U/S. 144 OF THE ACT AND AO HAS DISALLOWED THE ENTIRE EXPENSES ON ACCOUNT OF REPLACEMENT OF TY RES AND REPAIR OF LORRIES EITHER RENTED OR OWN LORRIES. FIRST OF ALL, THERE IS NO BASIS FOR D ISALLOWANCE OF EXPENSES OF OWN LORRIES, WHICH IS RESTRICTED BY CIT(A) AT RS.3,41,708/-. THIS ADDI TION MADE BY AO AND CONFIRMED BY CIT(A) ON THE BASIS OF CONJECTURE AND SURMISES AND TOTALLY ON AD HOC BASIS. WE FIND NO REASON TO SUSTAIN THIS ADDITION. ACCORDINGLY, THE SAME IS DELETED. HOWEVER, THE ASSESSEE HAS CLAIMED TO HAVE INCURRED EXPENSES ON RENTED LORRIES TOTALING TO RS.3,63,589/-. EVEN NOW BEFORE US ASSESSEE COULD NOT EXPLAIN AS TO WHY HE H AS INCURRED SUBSTANTIAL REPAIR FOR HIRED LORRIES I.E. REPLACEMENT OF TYRES OF THESE SEVEN RE NTED LORRIES. ON HIRED LORRIES REPAIR IS TO BE DONE BY THE OWNER AND NOT THE HIRER. ACCORDINGLY, WE ARE OF THE VIEW THAT THE CIT(A) HAS RIGHTLY CONFIRMED THIS ADDITION AND WE ALSO CONFIRM THE SAME. HENCE, THIS ISSUE OF ASSESSEES APPEAL IS PARTLY ALLOWED. 6. IN THE RESULT, THE APPEAL OF ASSESSEE IS PARTLY ALLOWED. 7. ORDER IS PRONOUNCED IN THE OPEN COURT ON 29.10.2 015 SD/- SD/- (WASEEM AHMED) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 29TH OCTOBER, 2015 JD. SR. P.S 3 ITA NO.1783/K/2011 SH. RAJENDRA PRASAD CHAWRASIA AY 2008-09 COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT - SHRI RAJENDRA PRASAD CHAWRASIA, VILL. P AR DANKUNI, PIN- 712138, P.O. DANKUNI, CHAKUNDI, DCC-HOOGHLY. 2 RESPONDENT ITO, WARD-1(2), HOOGHLY. 3 . THE CIT(A), KOLKATA 4. 5. CIT KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR . 4 ITA NO.1783/K/2011 SH. RAJENDRA PRASAD CHAWRASIA AY 2008-09