The DCIT, Circle-1(1), Baroda V. Aims Industries Ltd., Baroda

ITA 1795/AHD/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5829 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 13-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation

Judgement Text

ITA NO. 1795 /AHD/2014 ASSESSMENT YEAR : 20 08 - 09 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH, AHMEDBAD [CORAM: PRAMOD KUMAR AM AND S.S. GODARA JM ] ITA NO. 1795 /AHD/2014 ASSESSMENT YEAR : 20 08 - 09 DY. COMMISSIONER OF INCOME TAX, CIRCLE 1(1), BARODA. .. ............ ......APPELLANT VS. AIMS INDUSTRIES LIMITED , .. .. .. . RESPONDENT AIMS HOUSE, OLD PADRA ROAD, BARODA 390 020. [PAN: AA CCA 3233 C ] APPEARANCES BY: JAMES KURIAN F OR THE A PPELLANT NONE FOR THE RESPONDENT DATE OF CONCLUDING THE HE ARING : 23.05 .2017 DATE OF PRONOUNCING THE ORDER : 25 . 05. 2017 O R D E R PER PRAMOD KUMAR AM: 1. BY WAY OF THIS APPEAL, THE ASSESSING OFFICER HAS CHALLENGED CORRECTNESS OF THE ORDER DATE 3 RD MARCH 2014, PASSED BY THE LEARNED CIT(A) , FOR T HE ASSESSMENT YEAR 20 08 - 09, ON THE FOLLOWING GROUND : - ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. CIT (APPEALS) ERRED IN NOT APPRECIATING THE RATIO LAID DOWN IN THE DECISION OF THE APEX COURT IN THE CASE OF ANAND THEATRES (09. 05.2000) 224 ITR 192 AND THEREBY DELETING THE ADDITION OF RS. 41,56,298/ - ON ACCOUNT OF DISALLOWANCE OF EXCESS CLAIM OF DEPRECIATION ON STORAGE TANKS MOUNTED ON THE VEHICLES AND THE STORAGE TANKS INSTALLED IN BUILDING. 2. AS EVIDENT FROM THE MATERIAL ON R ECORD, THE ISSUE IN APPEAL IS COVERED, IN FAVOUR OF THE ASSESSEE, BY O R DER DATED 31 ST JULY 2013 IN ASSESSEE S OWN CASE FOR THE ITA NO. 1795 /AHD/2014 ASSESSMENT YEAR : 20 08 - 09 PAGE 2 OF 4 ASSESSMENT YEARS 2007 - 08 & 2009 - 10. IN THE S A ID ORDER, THE CO - ORDINATE BENCH HAS OBSERVED A S FOLLOW S : - WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE DECISION RELIED UPON BY THE LD. SR. DR IN THE CASE OF GUJCO CARRIERS VS. CIT (SUPRA) WAS RENDERED ON THE DIFFERENT S ET OF FACTS WHEREIN THE HON'BLE HIGH COURT EXAMINED THE ALLOWABILITY OF DEPRECIATION IN THE CASE OF VEHICLES LIKE FIRE TRUCKS, FORKLIFT TRUCKS AND CRANE TRUCKS WHICH ARE DESIGNED FOR SPECIAL SERVICES BUT THE CASE IN HAND CYLINDER IS FITTED ON THE CHASSIS O F THE LORRY FOR THE PURPOSE OF TRANSPORTATION OF GASES. UNDER THE IDENTICAL FACTS AND CIRCUMSTANCES, THE HON'BLE HIGH COURT OF ANDHRA PRADESH IN THE CASE OF ANANTHA GAS SUPPLIES (SUPRA) HELD THAT THE CONTAINER MOUNTED ON THE CHASSIS OF THE TRUCK WAS NOTHIN G BUT A GAS CYLINDER AND IT FIT THE DESCRIPTION OF GAS CYLINDER IN APPENDIX - I, PART - I, ITEM III(II)F(4) READ WITH RULE 5 OF THE RULES AS INCLUDING VALVES AND REGULATORS. THE MERE FACT THAT THE CONTAINER WAS MOUNTED ON THE CHASSIS OF THE TRUCK DID NOT DEPRI VE IT OF THE CHARACTER OF GAS CYLINDER. IT HAD ALL THE ATTRIBUTES OF THE CYLINDER AND WAS NOT DIVESTED OF ITS BASIC CHARACTER AS CYLINDER ON ACCOUNT OF THE FACT THAT THE ITEM WAS REGISTERED AS A TRANSPORT VEHICLE. FOR THE PURPOSE OF MOVING THE CONTAINER FR OM ONE PLACE TO THE OTHER IT WAS ANNEXED TO THE CHASSIS OF THE TRUCK. IN THE ABSENCE OF ANY AMBIGUITY, THE PLAIN LANGUAGE OF THE STATUTORY PROVISION AND THE OBVIOUS INTENTION OF THE LEGISLATURE IN USING SUCH A PLAN LANGUAGE ARE TO BE TAKEN INTO CONSIDERATI ON. THE LEGISLATURE HAD NOT SPELT OUT ANY QUALIFICATION AS TO THE SIZE OF THE GAS CYLINDER. THE DECISIVE FACTOR BEING THE LANGUAGE EMPLOYED IN THE STATUTORY PROVISION, THE VIEW THAT ON ACCOUNT OF THE CYLINDER BEING MOUNTED ON THE CHASSIS OF THE TRUCK, THE ENTIRE ITEM HAD TO BE TREATED AS TRANSPORT VEHICLE FOR WHICH THE DEPRECIATION WAS ALLOWABLE AT 40 PER CENT WAS NOT TENABLE. THE ASSESSEE WAS THEREFORE ENTITLED TO CLAIM DEPRECIATION AT 100 PER CENT ON THE LIQUEFIED PETROLEUM GAS CYLINDER MOUNTED ON THE BAS IS OF THE TRUCK. THE SIMILAR RATIO WAS LAID DOWN BY THE HON'BLE DELHI HIGH COURT FOLLOWING ITS EARLIER DECISION RENDERED IN THE CASE OF CIT VS. GOYAL MG GASES LTD . (2008) 296 ITR 72 (DELHI). THE DECISION RELIED UPON BY THE LD. SR. DR IS, THEREFORE, NOT APPLICABLE ON THE FACTS OF THE PRESENT CASE. THE RATIO OF JUDGEMENTS OF HON'BLE HIGH COURT OF ANDHRA PRADESH RENDERED IN THE CASE OF ANANTHA GAS SUPPLIES AND THE HON'BLE HIGH COURT OF DELHI REN DERED IN THE CASE OF CIT DELHI VS. H.B. LEASING & FINANCE LTD .(SUPRA) ARE SQUARELY APPLICABLE ON THE FACTS OF THE PRESENT CASE. THEREFORE, RESPECTFULLY FOLLOWING THE SAME, WE DO NOT FIND A NY INFIRMITY IN THE ORDER OF THE LD. CIT(A), THE SAME IS HEREBY UPHELD. 3. LEARNED DEPARTMENTAL REPRESENTATIVE DOES NOT DISPUTE TH A T THE ISSUE IS COVERED, IN FAVOUR OF THE ASSESSEE , BY THE ORDER OF THE T RIBUNAL WHICH H A S BEEN FOLLOWED BY THE ITA NO. 1795 /AHD/2014 ASSESSMENT YEAR : 20 08 - 09 PAGE 3 OF 4 LEARNED C I T ( A ) IN THE IMPUGNED O R DER. HE HOWEVER CONTEN D S T HAT IT DOES NOT TAKE INTO ACCOUNT HON BLE S UPREME COURT S JUDGEMENT IN T HE CA S E OF C I T VS . ANAND THEATRES [(2000) 244 ITR 192 (SC)] WHICH COVERS THE ISSUE AGAINST THE ASSESSEE. HE THUS URGES US TO REVERSE TH E RELIEF GRANT E D BY THE LEARNED C IT(A) AND RESTORE THE ORDER OF THE ASSESSING O FFICER ON THIS POINT. 4. WE HAVE NOTED THAT T HE LIMITED QUESTION DECIDED BY HON BLE S UPREME C OURT IN ANAND THEATRES CASE (SUPRA ) WAS WHETHER OR NOT A BUILDING FOR THEATRE WILL QUALIFY FOR BEING TREATED AS A PLANT FOR THE PURPOSES OF GRANT OF DEPRECIATION. THEIR LORDSHIPS DECIDED THIS ISSUE AGAINST THE ASSESSEE, AND WHILE DOING SO, OBSERVED THAT TO DIFFERENTIATE A BUILDING FOR GRANT OF DEPRECIATION BY HOLDING TO BE A PLANT IN ONE C A SE WHERE THE BUILDING IS SPECIALLY DESIGNED AND CONSTRUCTED WITH SOME SPECIAL FEATURES TO ATTRACT THE CUSTOMERS AND A BU I LDING SO CONSTRUCTED BUT USED FOR THE SAME PURPOSE, NAMELY, AS A HOTEL AND THEATRE, WOULD BE UNREASONABLE . WE ARE UNABLE TO SE E HOW THIS ASSISTS THE CASE OF THE REVENUE IN DEALING WITH THE QUESTION A S TO WHETHER PLANT WOULD INCLUDE C RYOGENIC TRANSPORT TANK, LIQUID S TORAGE TANK L IQUID STORAGE TANK CO2, MOBILE STORAGE TANK ETC. THE STAND OF THE ASSESSING O FFICER IS THUS DEVO ID OF ANY LEGALLY SUSTAINABLE MERITS. IN ANY CASE, AS OBSERVED BY HON BLE SUPREME COURT IN THE CASE OF AMBIKA PRASAD MISHRA VS. STATE O F UP [AIR 1980 SC 1762]. EVERY NEW DISCOVERY OR ARGUMENTATIVE NOVELTY CANNOT UNDO OR COMPEL RECONSIDERATION OF A BINDI NG PRECEDENT .. A DECISION DOES NOT LOSE IT S AUTHORITY MERELY BECAUSE IT WAS BADLY ARGUED, INADEQUATELY CONSIDERED OR FALLACIOUSLY REASONED . IT IS NOT EVEN THE CASE OF THE REVENUE THAT ANAND THEATRE S DECISION (SUPRA) DIRECTLY COVERS THE ISSUE; ALL I T DOES IS THAT IT GIVES AN ADDITIONAL ARGUMENT TO THE REVENUE BUT THEN AS THE ISSUE IS A SETTLED ISSUE BY DECISION OF THE TRIBUNAL, WHICH, IN TURN, FOLLOWS BINDING DIRECT DECISION S ON THE ISSUE BY HON BLE GUJARAT HIGH C O URT. WE HAVE NO REASONS TO TAKE ANY OTHER VIEW OF THE ITA NO. 1795 /AHD/2014 ASSESSMENT YEAR : 20 08 - 09 PAGE 4 OF 4 MATTER T HAN THE VIEW SO TAKEN BY THE CO - ORDINATE BENCH IN ASSESSEE S OWN CASES (SUPRA). RESPECTFULLY FOLLOWING THE SAME, WE APPROVE THE STAND OF THE LEARNED CIT(A) AND DECLINE TO INTERFERE IN THE MATTER. 5 . IN THE RESULT, THE APPEAL IS DISMISSED. PRONOUNCED IN THE OPEN COURT TODAY ON THE 25 TH DAY OF MAY , 2017. SD/ - SD/ - S.S. GODARA PRAMOD KUMAR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) AHMEDABAD , DATED THE 25 TH DAY OF MAY , 201 7 COPIES TO: (1) THE APP ELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD