Shri Raj Kumar Yadav, Gurgaon V. DCIT, Gurgaon

ITA 2740/DEL/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 8570 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 10 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 13-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P V GUPTA
• Assessee Lawyers: MRS KAVITA GUPTA
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI BEFORE SHRI LALIET KUMAR, JUDICIAL MEMBER AND DR. B.R.R. KUMAR, ACCOUNTANT MEMBER ITA NO.: 2740/DEL/2016 ASSESSMENT YEAR: 2011-12 SH. RAJ KUMAR YADAV [PROPIETOR: M/S PARAS TRAVEL & RAJ FILLING STATION] STATION H NO. 810, SECTOR- 4 GURGAON PAN- ADSPK5609G VS DCIT CIRCLE- 1(1) GURGAON (APPELLANT) (RESPONDENT) ASSESSEE BY MRS. KAVITA GUPTA, C.A. DEPARTMENT BY P.V. GUPTA, SR. DR DATE OF HEARING: 09.04.2019 DATE OF PRONOUNCEMENT: 11 .04.2019 ORDER PER BRR KUMAR, AM: GROUNDS OF APPEAL 1. THAT THE COMMISSIONER OF INCOME-TAX (APPEALS) ER RED ON FACTS AND IN LAW IN UPHOLDING THE DISALLOWANCE OF D EPRECIATION TO THE TUNE OF RS. 2,82,426 ON VEHICLES (I.E., BUS/TEM PO TRAVELLER), ON THE GROUND THAT SUCH VEHICLES WERE NOT USED FOR COM MERCIAL PURPOSES. 1.1. THAT THE COMMISSIONER OF INCOME-TAX (APPEALS) ERRED ON FACTS AND IN LAW IN NOT APPRECIATING THAT THE VEHIC LES WERE USED BY THE APPELLANT PURELY FOR COMMERCIAL PURPOSES AND TH EREBY, DEPRECIATION @ 50% WAS RIGHTLY CLAIMED. 1.2. THAT THE COMMISSIONER OF INCOME-TAX (APPEALS) ERRED ON 2 FACTS AND IN LAW IN NOT APPRECIATING THAT THE BUSIN ESS OF THE ASSESSEE IS OF TRANSPORT (CARRYING THE STAFF FOR DI FFERENT COMPANIES) AND THEREFORE THE DISPUTED VEHICLES I.E. BUS AND TE MPO TRAVELLER ARE COMMERCIAL VEHICLES. 1.3. THAT THE COMMISSIONER OF INCOME-TAX (APPEALS) ERRED ON FACTS AND IN LAW IN HOLDING THE VIEW TAKEN BY A.O. THAT COMMERCIAL VEHICLES CANNOT BE HIRING VEHICLES. 1.4. THAT THE COMMISSIONER OF INCOME-TAX (APPEALS) ERRED ON FACT AND IN LAW IN HOLDING THAT THE APPELLANT FAILE D TO SUBSTANTIATE THAT THE AFORESAID VEHICLES WERE USED FOR COMMERCIA L PURPOSES. 1.5. THAT THE COMMISSIONER OF INCOME TAX (APPEALS) HAS WRONGLY MENTIONED THAT NO EVIDENCE HAS BEEN FILED T O SHOW THE VEHICLES ARE COMMERCIAL IN NATURE IS TOTALLY WRONG AS COPY OF RECEIPT OF PASSENGER TAX /ROAD PERMIT MENTIONING TH E VEHICLES AS COMMERCIAL WERE PRODUCED AND WERE PUT ON RECORD. 1. THE MOOT ISSUE TO BE ADJUDICATED IN THIS CASE IS THAT WHETHER THE DEPRECIATION CLAIMED BY THE ASSESSEE AT THE RATE OF 50% AS PLEADED BEFORE US IS ALLOWABLE AS PER THE PROVISIONS OF THE INCOME TA X ACT OR NOT. 2. THE LD. CIT(A) CONFIRMED THE ADDITIONS MADE BY T HE AO ON THE GROUNDS THAT THE DEPRECIATION ON (A) BUS- 1986 (B) TEMPO TRAVELLER- 7344 WAS TO BE ALLOWED ONLY AT THE RATE OF 30%. THE LD. CIT(A) HELD WHILE CONFIRMING THE ADDITION (OR) RESTRICTING THE DEPREC IATION THAT NO DOCUMENTARY EVIDENCE WAS PRODUCED BY THE ASSESSEE AT THE ASSESS MENT STAGE TO SHOW THAT THE VEHICLES WERE COMMERCIAL AS PER THE DEFINITIO N AND NO SUCH CLAIM WAS MADE BEFORE THE AO. 3. ON PERUSAL OF THE DOCUMENTS FILED BEFORE US IN T HE PAPER BOOK NAMELY THE REGISTRATION CERTIFICATE AND THE INSURANCE POLI CY AND BY THE VERY NATURE OF THE VEHICLE I.E. BUS AND TEMPO TRAVELLER, WE FIN D THAT THEY STRAIGHTLY FALL UNDER THE DEFINITION OF COMMERCIAL VEHICLES AND ELI GIBLE FOR 50% DEPRECIATION AS PER PART B OF THE DEPRECIATION TABLE WHEREIN IT HAS BEEN CLEARLY MENTIONED THAT NEW COMMERCIAL VEHICLES WHICH ARE ACQUIRED ON OR AFTER FIRST DAY OF 3 JANUARY, 2009 BUT BEFORE THE FIRST DAY OF APRIL, 20 09 AND IS PUT TO USE BEFORE THE FIRST DAY OF APRIL, 2009 FOR THE PURPOSE OF BUS INESS OR PROFESSION ARE ELIGIBLE FOR DEPRECIATION AT THE RATE OF 50%. (VIDE NOTIFICATION NO. 10/2009 DATED 19.01.2009 W.E.F. 01.09.2009). COMMERCIAL VEH ICLE IS DEFINED IN THE NOTES TO THE DEPRECIATION TABLE AS UNDER: 3A. COMMERCIAL VEHICLE MEANS HEAVY GOODS VEHICLE, HEAVY PASSENGER MOTOR VEHICLE, LIGHT MOTOR VEHICLE, MEDIUM GOODS VEHICLE AND MEDIUM PASSENGER MOTOR VEHICLE BUT DOES NOT INCLUDE MAXI-CAB, MOTOR- CAB, TRACTOR AND ROAD- ROLLER. THE EXPRESSIONS HEAVY GOODS VEHICLE, HEAVY PASSENGER MOTOR VEHICLE, LIGHT MOTOR VEHICLE, MEDIUM GOODS VEHICLE, MEDIUM P ASSENGER MOTOR VEHICLE, MAXI-CAB, MOTOR-CAB, TRACTOR AND ROAD-ROLLER SHALL HAVE THE MEANINGS RESPECTIVELY AS ASSIGNED TO THEM IN SECTION 2 OF TH E MOTOR VEHICLES ACT, 1988 (59 OF 1988). 4. HENCE, KEEPING IN VIEW THE PROVISIONS OF THE ACT , DEPRECIATION IS HEREBY ALLOWED AT THE RATE OF 50% ON THE TWO VEHICL ES. 5. AS A RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED. ORDER PRONOUNCED IN THE OPEN COURT ON 11.04.2019. SD/- SD/- (LALIET KUMAR) (B. R. R KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED:11-04-2019. BCG 4 COPY OF ORDER TO: - 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT 4) THE CIT(A) 5) THE DR, I.T.A.T., NEW DELHI BY ORDER ASSISTANT REGISTRAR ITAT, NEW DELHI DATE OF DICTATION 10 .04.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/ PS DATE ON WHICH THE FIN AL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH FILE GOES TO THE HEAD CLERK. THE DATE ON WHICH FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER