Sauri Mall Agarwalla, Bhubaneswar V. ACIT, Bhubaneswar

ITA 182/CTK/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4339 (ITAT-CUTTACK)
• Duration Of Justice: 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2011
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 29-06-2011
• Assessment Year: 2000-2001
• Appeal Filed On: 04-04-2011
• Court: TRIBUNAL
• Department Lawyers: S C MOHANTY
• Assessee Lawyers: G NAIKR KAR ARS
• Keywords: Depreciation; Principle of natural justice; Set aside

Judgement Text

IN THE INCME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE : HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER, AND HONBLE SHRI K.S.S.PRASAD RAO, JUDICIAL MEMBER. ITA NO. 182/CTK/2011 (ASSESSMENT YEAR 2000 - 01) SAURI MALL AGRAWALLA, 11, SAMANTA VIHA R, NALCO CHHAK, BHUBANESWAR 751 017 PAN : AAXPA 8486 D. VERSUS ASST.COMMISSIONER OF INCOME - TAX, CIRCLE 2(1), BHUBANESWAR 751 017. (APPELLANT) (RESPONDENT) FOR THE APPELLANT: S/ SHRI G.NAIK/ R.KAR, ARS FOR THE RESPONDENT SHRI S.C.MOHANTY, DR ORDER SHRI K.S.S.PRASAD RAO, JUDICIAL MEMBER : THIS APPEAL IS FILED BY THE ASSESSEE HAVING BEEN AGGRIEVED BY THE ORDER OF THE COMMISSIONER OF INCOME - TAX (APPEALS) DT.27.1.2011. 2. THE APPEAL RAISES THE ONLY GROUND THAT THE LEARNED CIT(A) HAS ERRED IN LAW AS WELL A S ON THE FACTS BY UPHOLDING VIEW OF THE AO IN ALLOWING DEPRECIATION @25% FOR USE OF TIPPER, MOBILE CRANE & EXCAVATOR USED FOR HIRING PURPOSE. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL MADE AVAILABLE TO THE TRIBUNAL. DURING THE COURSE OF HE ARING, THE LEARNED AR OF THE ASSESSEE HAS BROUGHT TO OUR ATTENTION THAT WHILE CONSIDERING SIMILAR SUCH ISSUE FOR THE ASSESSMENT YEAR 2001 - 02 IN ASSESSEES OWN CASE, VIDE OR D ER DT.11.9.2008 IN ITA NO.78/CTK/2007, THE TRIBUNAL HAS RESTORED THE ISSUE TO THE F ILE OF THE ASSESSING OFFICER WITH A DIRECTION THAT HE WOULD DECIDE AS TO WHETHER THE IMPUGNED MACHINERIES WERE USED IN THE BUSINESS OF RUNNING THEM ON HIRE OR NOT. IN SUPPORT, HE PRODUCED A COPY OF THE SAID ORDER OF THE TRIBUNAL. THE LEARNED DR DID NOT DIS PUTE THE ABOVE FACT. THEREFORE, BY FOLLOWING THE ABOVE ORDER OF THE ITAT IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2001 - 02, WE SET ASIDE THE IMPUGNED ORDER OF THE LEARNED CIT(A) AND RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH THE ITA NO.182/CTK/2 011 2 DIRE CTION THAT HE WOULD DECIDE AS TO WHETHER THE IMPUGNED MACHINERIES WERE USED IN THE BUSINESS OF RUNNING THEM ON HIRE OR NOT AND PASS NECESSARY CONSEQUENTIAL ORDER AS PER LAW , OFCOURSE STRICTLY FOLLOWING THE PRINCIPLES OF NATURAL JUSTICE BY ALLOWING THE APPE AL . 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN OPEN COURT ON DT. 29.07.2011 SD/ - SD/ - (K.K.GUPTA) ACCOUNTANT MEMBER (K.S.S.PRASAD RAO) JUDIC IAL MEMBER DATE: 29.07.2011 H.K.PADHEE, SENIOR PRIVATE SECRETARY. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT: SAURI MALL AGRAWALLA, 11, SAMANTA VIHAR, NALCO CHHAK, BHUBANESWAR 751 017 2. THE RESPONDENT: ASST.COMMISSIONER OF INCOME - TAX, CIRCLE 2(1), BHUBANESWAR 751 017. 3. THE CIT, 4. THE CIT(A), 5. THE DR, CUTTACK 6. GUARD FILE (IN DUPLICATE) TRUE COPY, BY ORDER, SENIOR PRIVATE SECRETARY.