Shri Sanjay kr; Sharda, V. DCIT,

ITA 266/RAN/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 0438 (ITAT-RANCHI)
• Duration Of Justice: 1 year(s) 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 12-08-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A RAKSHIT
• Keywords: Depreciation
• Section: 153A

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL: CIRCUIT BENCH : RANCHI [BEFORE HONBLE S/SHRI N. S. SAINI, AM AND GEORGE M ATHAN, JM] ITA NO.266/RAN/2014 ASSESSMENT YEAR: 2009-10 SHRI SANJAY KUMAR SHARDA, S/O. LATE KAMESHWAR, PR. SHARDA NALDA, BARBIL, KEONJHAR, ORISSA 758035 PAN:AHWPS4875Q VS THE DY. COMMISSIONER OF INCOME TAX, CIRCLE -1, RANCHI (APPELLANT) (RESPONDENT) APPELLANT BY SHRI S. K. PODDAR WITH SHRI M. K. CHOUDHARY, ADVOCATES RESPONDENT BY SHRI A. RAKSHIT, DR DATE OF HEARING: 29-10-2015 DATE OF PRONOUNCEMENT: 29-10-2015 O R D E R PER GEORGE MATHAN, JM: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED CIT(A), JAMSHEDPUR (JHARKHAND) IN APPEAL NO .508/JSR/2012- 13 DATED 23-05-2014, FOR THE ASSESSMENT YEAR 2009-1 0. 2. SHRI S. K. PODDAR AND SHRI M. K. CHOUDHARY, ADVO CATES REPRESENTED ON BEHALF OF THE ASSESSEE AND SHRI A. R AKSHIT, LEARNED DR REPRESENTED ON BEHALF OF THE REVENUE. 3. IT WAS SUBMITTED BY THE LEARNED AR THAT THE ONLY ISSUE IN THE ASSESSEES APPEAL WAS AGAINST THE ACTION OF THE LEA RNED CIT(A) IN NOT ALLOWING DEPRECIATION AT HIGHER RATE OF 30% IN RESP ECT OF THE DUMPER WHICH WERE PLIED FOR HIRED BY THE ASSESSEE. IT WAS A SUBMISSION THAT THERE WAS A SEARCH ON THE ASSESSEE AND THE ASSESSEE HAD FILED HIS RETURN OF INCOME U/S 153A OF THE ACT RETURNING INCO ME OF ITA NO.266/RAN/2014 (AY: 2009-10) 2 RS.50,59,250/-. IT WAS A SUBMISSION THAT THE RETURN ED INCOME HAD BEEN ACCEPTED. IT WAS A SUBMISSION THAT IT WAS NOTI CED IN THE COURSE OF ASSESSMENT THAT THE ASSESSEE HAD CLAIMED ONLY 15% D EPRECIATION IN RESPECT OF THE SAID DUMPERS WHICH WERE LET ON HIRE; WHEREAS THE ASSESSEE WAS ENTITLED TO 30% DEPRECIATION. IT WAS A SUBMISSION THAT THE AO AND THE LEARNED CIT(A) DID NOT ACCEPT THE CO NTENTIONS OF THE ASSESSEE ON THE GROUND THAT THE ASSESSEE HAD NOT MA DE THE CLAIM IN ITS RETURN FILED. IT WAS A SUBMISSION THAT IN VIEW OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF GOETZE (INDIA) LTD. REPORTED IN 284 ITR 323 (SC) AS ALSO THE DECISION OF THE HONBL E SUPREME COURT IN THE CASE OF MAHALAXMI SUGAR MILLS CO. LTD. REPORTED IN REPORTED IN 160 ITR 920 (SC), THE AO MAY BE DIRECTED TO GRANT THE A SSESSEE THE CORRECT CLAIM DEPRECIATION IN RESPECT OF THE DUMPER S WHICH HAVE BEEN PUT ON HIRE BY THE ASSESSEE. 4. IN REPLY, THE LEARNED DR SUBMITTED THAT THE RETU RNED INCOME HAS BEEN ACCEPTED AND THE ASSESSED INCOME CANNOT GO BEL OW THE RETURNED INCOME. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PERU SAL OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE O F SHELLY PRODUCTS & ANR. REPORTED IN (2003) 261 ITR 367 (SC) SHOWS THAT THE HONBLE SUPREME COURT HAS HELD THAT IF AN ASSESSEE HAS BY M ISTAKE OR INADVERTENCE OR ON ACCOUNT OF IGNORANCE, INCLUDED I N HIS INCOME ANY AMOUNT WHICH IS EXEMPT OR WHICH IS NOT INCOME WITHI N THE CONTEMPLATION OF LAW, HE MAY BRING IT TO THE NOTICE OF THE AO, WHICH, IF SATISFIED, MAY GRANT RELIEF. FURTHER, A PERUSAL OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF GOETZE (INDIA) LTD. ALSO SPECIFIES THAT THE OFFICER OF THE DEPARTMENT MUST NOT TAKE AD VANTAGE OF IGNORANCE OF THE ASSESSEE AS TO HIS RIGHTS. IN VIEW OF THESE FINDINGS OF ITA NO.266/RAN/2014 (AY: 2009-10) 3 THE HONBLE SUPREME COURT, THE AO IS DIRECTED TO VE RIFY T HE ASSESSEES CLAIM OF HIGHER RATE OF DEPRECIATION IN RESPECT OF THE DUMPER TRUCKS PUT ON HIRE BY THE ASSESSEE AND IF THE SAME IS ELIGIBLE TO GRANT THE CLAIM OF THE ASSESSEE. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. THE ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE CLOSE OF HEARING ON 29-10-2015. SD/- SD/- ( N .S. SAINI ) ACCOUNTANT MEMBER (GEORGE MATHAN ) JUDICIAL MEMBER DATE : 29.10.15 LK DEKA/SR.PS COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) - 5. THE DR, ITAT, RANCHI 6. GUARD FILE BY ORDER ITA NO.266/RAN/2014 (AY: 2009-10) 4 DATE INITIAL ORIGINAL DICTATION PAD & DRAFT ARE ENCLOSED IN THE FILE 1. DRAFT DICTATED ON 29.10.15 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 29.10.15 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 29.10.15 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 29.10. 15 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 29.10.15 S R.PS 6. DATE OF PRONOUNCEMENT 29.10.15 SR.PS 7. FILE SENT TO THE BENCH CLERK 29.10.15 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER