The Dy. Commissioner of Income Tax, Circle-4(2), Ahmedabad V. Shri Abhay Dattatray Khandakar, Ahmedabad

ITA 1996/AHD/2016

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 2734 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 2 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 01-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: APOORVA BHARADWAJ
• Keywords: Depreciation
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH (BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) ITA. NO: 1996/AHD/2016 (ASSESSMENT YEAR: 2009-10) DCIT, CIRCLE-4(2), AHMEDABAD V/S SHRI ABHAY DATTATRAY KHANDAKAR C/O. M/S. SIDDHI VINAYAK HOSPITAL BALAVTIKA, MANINAGAR, AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AEVPK4970J APPELLANT BY : SMT. APOORVA BHARADWAJ SR. D.R. RESPONDENT BY : NONE ( )/ ORDER DATE OF HEARING : 13 -08-201 8 DATE OF PRONOUNCEMENT : 31 -10-2018 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-4, AHMEDABAD DATED 03.05.2016 PERTAINING TO A.Y. 2009- 10 AND FOLLOWING GROUNDS HAVE BEEN TAKEN: ITA NO. 1996 -AHD-2016 . A.Y. 2009-10 2 1) 'WHETHER THE LD. CIT(A) HAS ERRED IN LAW AN D ON THE FACTS IN DELETING THE DISALLOWANCE OF DEPRECIATION OF RS.11,25,000/- U/S. 32 OF THE ACT.' 2) 'WHETHER THE LD. CIT(A) HAS ERRED IN LAW A ND ON THE FACTS IN DELETING THE ADDITION OF RS. 50,00, 000/- U/S. 68 OF THE ACT.' 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS EN GAGED IN THE BUSINESS OF MEDICAL PROFESSION. THE RETURN OF INCOME WAS FILED THE ASSESSEE ON 30.09.2009 DECLARING TOTAL INCOME OF RS. 94,89,950/- AND THE A SSESSMENT WAS FINALIZED U/S. 143(3) DETERMINING TOTAL INCOME OF RS. 1,59,09,220/ -. 3. AS PER A.O., ASSESSEE HAS CLAIMED EXCESS DEPRECIATI ON ON LITHOTRIPSY MACHINE. ACCORDING TO A.O. LITHOTRIPSY MACHINE IS NOT A LIFE SAVING MACHINE AND IT IS NOT LISTED IN BLOCK II(XIA) OF INCOME TAX RULES WHERE THERE IS A LIST OF MACHINES ON WHICH HIGHER RATE OF 40% DEPRECIATION HAS BEEN P RESCRIBED AND THEREFORE DEPRECIATION WAS ALLOWED @ 15% WHICH IS THE GENERA L RATE OF DEPRECIATION AND A.O. HAS MADE ADDITION OF RS. 11.25.000/-. 4. SO FAR ADDITION U/S. 68 IS CONCERNED, AN AMOUNT OF RS. 50,00,000/- WAS PASSED THROUGH BANK ENTRY ON 01.04.2008 HAD DEBITING A CA PITAL ACCOUNT CREDITING SMT. PATRALEKHABEN H. BODIWALA ACCOUNT FOR AMOUNTS PAID BY SAID SMT. PATRALEKHABEN TOWARDS PURCHASE PRICE OF HOSPITAL BU ILDING ON BEHALF OF ASSESSEE IN EARLIER YEARS AND SAME WAS VERY FILED F ROM THE BOOKS OF ACCOUNTS OF THE ASSESSEE THAT THE OUTSTANDING LOAN IN THE NAME OF PATRALEKHABEN H. BODIWALA WAS OF RS. 5,02,108/-. THUS, AS PER A.O., IT IS CLEAR THAT IN SPITE OF PAYMENT OF RS. 50 LAKHS TO SMT. PATRALEKHABEN H. BO DIWALA NO LIABILITY EXISTED FOR HER AND MADE AN ADDITION OF RS. 50 LAKHS. 5. AGAINST THE SAID ADDITION, ASSESSEE PREFERRED FIRST STATUTORY APPEAL BEFORE LD. CIT(A) WHO PARTLY ALLOWED THE APPEAL OF THE ASSESSE E. ITA NO. 1996 -AHD-2016 . A.Y. 2009-10 3 6. WE HAVE GONE THROUGH THE RELEVANT RECORD AND IMPUGN ED ORDER. SO FAR DEPRECIATION IS CONCERNED, ASSESSEE STATED THAT THE MACHINE WAS PURCHASED IN A.Y. 2008-09 I.E. THE PRECEDING YEAR WHEN IT HAS EN TERED INTO THE BLOCK OF ASSETS AND DEPRECIATION WAS ALLOWED AT 40% ON THE BLOCK OF SUCH ASSETS IN A.Y. 2008- 09. IN SUPPORT OF ITS CONTENTION, RELIANCE HAS BEEN PLACED ON CBDT CIRCULAR NO. 469 DATED 23.09.1986 AND THE SAID MACHINE WAS I N THE BLOCK OF ASSETS AND COMPUTATION OF DEPRECIATION MADE BY THE A.O. IS CON TRARY TO CBDT CIRCULAR. IN OUR CONSIDERED OPINION, LD. CIT(A) HAS RIGHTLY D ELETED THE ADDITION OF RS. 11,25,000/-. 7. SO FAR ADDITION OF RS. 50 LAKHS IS CONCERNED, ASSES SEE HAS SUBMITTED THAT A LOAN WHICH WAS TAKEN FROM SMT. PRATRALEKHABEN IS HIS MOT HER-IN-LAW. FURTHER HE HAD PURCHASED COMMERCIAL BUILDING AT MANINAGAR FROM SHU KAN PROPERTIES PVT. LTD. IN F.Y. 2004-05 AND HAD PAID THE SHUKAN PROPERTIES PVT. LTD. TOWARDS PURCHASE PRICE OF BUILDING AND SAID PAYMENT WAS MADE THROUGH CHEQUE AND SMT. PRATRALEKHABEN HAS PURCHASED THE PROPERTY ON BEHALF OF THE ASSESSEE AND ASSESSEE HAS REPAID RS. 2 LAKHS PER MONTH TO SMT. P RATRALEKHABEN DURING THE YEAR. THE LD. CIT(A) ON SUCH FACTS HAVE RIGHTLY CO ME TO THE CONCLUSION IN FAVOUR OF THE ASSESSEE. WE, THEREFORE, DO NOT FIND ANY MERIT IN THE APPEAL OF THE REVENUE AND THUS WE DECLINE TO INTERFERE. 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS P ARTLY DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 31 - 10- 2018 SD/- SD/- (PRADIP KUMAR KEDIA) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 31/10/2018 RAJESH