PARITOSH PRAKASH GUNDAWAR, Chandrapur V. ITO, WARD-4, Chandrapur

ITA 327/NAG/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93432 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 11 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 05-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A R NINAWE
• Assessee Lawyers: N O N E
• Keywords: Depreciation

Judgement Text

1 ITA NO. 327/NAG/2013 IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. I.T. A. NO. 327/NAG/2013 ASSESSMENT YEAR : 2006 - 07 PARITOSH PRAKASH GUNDAWAR, THE INCOME - TAX OFFICER, ARVIND NAGAR, MUL ROAD, V/S. WARD - 4, CHANDRAPUR. CHANDRAPAUR. PAN AGYPG1722F (APPELLANT) RESPONDENT. APPELLANT BY : N ONE . RESPONDENT BY : SHRI A.R. NINAWE. DATE OF HEARING : 19 - 05 - 2015 DATE OF PRONOUNCEMENT : 10 TH JULY, 2015. O R D E R PER SHRI SHAMIN YAHYA, A.M . THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF L EARNED CIT(APPEALS) - II, NAGPUR AND PERTAINS TO ASSESSMENT YEAR 2007 - 08. THE GROUNDS OF APPEAL READ AS UNDER : 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. A.O. HAS ERRED IN RESTRICTING CLAIM OF DEPRECIATION ON JCB EXCAVATOR @ 15% IN PLACE OF 30% CLAIMED BY THE ASSESSEE AND THE LD. CIT(APPEALS) HAS FURTHER ERRED IN CONFIRMING THE SAME. 2 ITA NO. 327/NAG/2013 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE DISALLOWANCE OF CLAIM OF DEPRECIATION ON JCB EXCAVATOR TO THE EXTENT OF ` .492002 IS UNJUSTIFIED, ARBITRARY AND DESERVES TO BE ALLOWED. 3. THAT ON THE FACTS OF THE CASE THE LD. A.O. HAS ERRED IN MAKING ADDITION OF ` .9148/ - ON PRESUMPTION AND SURMISE. THE ADDITION IS UNJUSTIFIED AND DESERVES TO BE DELETED. 4. THAT THE ADHOC DISALLOWANCE OF ` .5,000/ - FROM DEPRECIATION CLAIMED ON FORD ICON CAR, ` .3,000/ - FROM MOBILE EXPENSES, ` .5,000/ - FROM VEHICLE REPAIRS & MAINTENANCE, TREATING THEM AS USED FOR PERSONAL USE IS OF PRESUMPTIVE NATURE ARE UNJUSTIFIED AND DESERVES TO BE DELETED. 2. AT THE OUTSET WE NOTE THAT THERE IS AN ADJOURNMENT PETITION ON BEHALF OF THE ASSESSEE. HOWEVER, WE ARE OF THE OPINION THAT SOME OF THE ISSUES ARE COVERED AND THE APPEAL CAN BE DISPOSED OF AFTER HEARING THE LEARNED D.R. HENCE THE ADJOURNMENT PETITION IS REJECTED . 3. APROPOS GROUND N O. 1 AND 2 RESTRICTION OF DEPRECIATION ON JCB EXCAVATOR AT THE RATE OF 15% IN PLACE OF 30% AS CLAIMED BY THE ASSESSEE . W E FIND THAT THIS ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF HONBLE KERALA HIGH COURT IN THE CASE OF CIT V/S. GALORD CONSTRUCTION 190 TAXMAN 406. IN THIS CASE IT WAS HELD THAT THE TRIBUNAL WAS JUSTIFIED IN UPHOLDING THE ASSESSEES CLAIM FOR DEPRECIATION ON EARTH MOVING EQUIPMENT, NAMELY, JCB AT THE RATE OF 40% WHICH IS PROVIDED FOR MOTOR BUSES, MO TOR LORRY, MOTOR TAXIS USED IN THE BUSINESS OF RUNNING THEM ON HIRE. RESPECTFULLY FOLLOWING THE PRECEDENT AS ABOVE, WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND ALLOW THE CLAIM OF ASSESSEE FOR HIGHER RATE OF DEPRECIATION. 4. APROPOS GROUND N O. 3 ADDITION OF ` .9148/ - IN RESPECT OF DIFFERENCE OF AMOUNT IN RESPECT OF BLOCK MAKING MACHINE. ON THIS ISSUE THE ASSESSING OFFICER 3 ITA NO. 327/NAG/2013 NOTED THAT AS PER INVOICE FROM SUSANJI UDYOG PVT. LTD., HYDERABAD DATED 01 - 08 - 2005 IT WAS PURCHASED SAKAR BLOCK MAKING MACHI NE WITH CLUTCH AT AN AMOUNT OF ` .49,148/ - WHEREAS AS PER BALANCE SHEET IT WAS SHOWN AT ` .40,000/ - . THE ASSESSING OFFICER PROCEEDED TO MAKE A DISALLOWANCE AND ADDED ` .9148/ - . 5. WE FAIL TO UNDERSTAND AS TO HOW THIS ADDITION HAS BEEN MADE WHEN THE ASSESSEE HAS NOT AT ALL CLAIMED PAYMENT OF THIS AMOUNT. THE ADDITION MADE BY THE ASSESSING OFFICER IS TOTALLY UNSUSTAINABLE. HENCE THE SAME IS DELETED. 6. APROPOS GROUND N O. 4 ADHOC DISALLOWANCE OF ` .5,000/ - FROM DEPRECIATION ON CAR, ` .3,000/ - FROM MOBILE EXPENS E AND ` .5,000/ - FROM VEHICLE REPAIR AND MAINTENANCE. THESE ADDITIONS WERE MADE BY THE ASSESSING OFFICER WITHOUT POINTING OUT ANY SPECIFIC DEFECT IN THE VOUCHERS IN THIS REGARD. THE ONLY GROUND OF THE ASSESSING OFFICER WAS THAT USES IN THIS REGARD FOR PERSO NAL AND PRIVATE PURPOSES CANNOT BE DENIED. WE FIND THAT THE ADDITIONS HAVE BEEN MADE PURELY ON SURMISES AND CONJECTURES. HENCE THESE ADDITIONS ARE LIABLE TO BE DELETED. WE FURTHER NOTE THAT THE LEARNED CIT(APPEALS) HAS NOT AT ALL ADVERTED TO THESE GROUNDS. HENCE IN OUR CONSIDERED OPINION THE ADDITIONS MADE IN THIS REGARD ARE TOTALLY UNSUSTAINABLE. 7. IN THE RESULT, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED. HENCE THIS APPEAL IS DECIDED IN FAVOUR OF THE ASSESSEE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 10 TH DAY OF JULY, 2015. SD/ - SD/ - (MUKUL K. SHRAWAT) ( SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER. NAGPUR, DATED: 10 TH JULY, 2015. 4 ITA NO. 327/NAG/2013 COPY OF ORDER FORWARDED TO : 1. THE ASSESSEE. 2. REVENUE. 3. THE CIT(A) 4. THE CIT, NAGPUR. 5. THE D.R., ITAT, NAGPUR. 6. GUARD FILE. TRUE COPY. BY ORDER WAKODE ASSISTANT REGISTRAR, ITAT, NAGPUR