NAWAL KISHORE DHUPAR, NEW DELHI V. ITO, WARD- 63(1), NEW DELHI

ITA 3972/DEL/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 7951 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 25-05-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D S RAWAT
• Assessee Lawyers: S C SINGHAL
• Keywords: Unexplained cash credit; Business income; Depreciation; Opportunity of being heard; Avoidance of tax; Accommodation entries
• Section: 133A; 32; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC , NEW DELHI BEFORE S H. R.K. PAND A , ACCOUNTANT MEMBER ITA NO. 3 972 /DEL/201 8 ASSESSMENT YEAR: 20 14 - 15 NAWAL KISHORE DHUPAR H. NO. F - 189(GF), MANSAROVAR GARDEN, NEW DELHI - 15 PAN AAHPD6207F VS THE INCOME TAX OFFICER WARD - 63 (1), DELHI (APPELLANT) (RESPONDENT) APPELLANT BY S H . S . C. SINGHAL, CA RESPONDENT BY SH. D. S. RAWAT, SR. DR DATE OF HEARING: 0 9 / 1 0 /2018 DATE OF PRONOUNCEMENT: 31 /12/2018 ORDER PER R.K. PANDA, AM: T HIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 2 6 . 0 4 .201 8 P A SSED BY THE CIT (A) - 2 0 , NEW DELHI RELATING TO A. Y. 20 14 - 15 . 2. THE GROUNDS OF APPEAL NO.1 TO 4 RAISED BY THE ASSESEE ARE AS UNDER : - 1 . THE ITO AS WELL AS CIT (A) ERRED IN M AKING / CONFIRMING AN ADDITION RS.21,65,606/ - U/S 68 READ WITH SECTION 1155BBE MERELY ON THE BASIS OF 2 DOUBT/ SUBJECT WITHOUT ANY SINGLE EVIDENCE TO JUSTIFY THEIR ACTION. 2 . THE DOCUMENTS NEEDED FOR A NORMAL SHARE TRANSACTION OF PURCHASE AND SALE ARE ALL THER E AND ALL ESSENTIAL INGREDIENTS TO QUALIFY FOR DEDUCTION U/S 10(38) ARE THERE EVEN THEN WITHOUT ANY EVIDENCE AND ONLY ON BASELESS / UNRELATED FACTS AND DOUBT, THE ADDITION HAS BEEN MADE WHICH MAY KINDLY BE DELETED. 3 . STATEMENT OF SOME UNCONNECTED PERSONS HA VE BEEN RELIED UPON BY THE ITO IN HIS ORDER WHICH IN NO WAY ARE RELATED TO PURCHASE AND / OR SALE TRANSACTION IN THIS CASE. THE COPY OF THEIR STATEMENT WAS NOT GIVEN NOR ANY OPPORTUNITY TO CROSS EXAMINE THEM WAS ALLOWED. FOLLOWING ESTABLISHED CASE LAWS A ND PRECEDENT, THE RELIANCE BY ITO ON THESE STATEMENTS IN NOT JUSTIFIED. ON FACTS ALSO, THEY MAY DO ANYTHING ELSEWHERE BUT HOW THEIR STATEMENT RELATES TO APPELLANT, IS NOT PROVED. 4 . CASE LAWS DIRECTED RELATED OF VARIOUS ITAT AND HIGH COURT CITED BY THE APPE LLANT HAVE NOT BEEN RELIED UPON BY THE ITO / CIT (A) NOR EVEN DISCUSSED. IN IS PLACE VARIOUS UNRELATED CASE LAWS HAVE BEEN MENTIONED WHICH ON FACTS AND QUESTION ARE NOT RELATED TO THIS CASE OR ARE GENERAL IN NATURE. 3. F ACTS OF THE CASE, IN BRIEF, ARE T HAT THE ASSESSEE IS AN INDIVIDUAL AND FILED ITS RETURN OF INCOME ON 19.07.2014 DECLARING TOTAL INCOME OF RS.5,33,940/ - . THE ASSESSEE IS A PARTNER IN THE FIRM M/S. J. K. ENTERPRISES AND WAS DERIVING REMUNERATION AND INTEREST INCOME FROM IT AND ALSO CLAIMED A N AMOUNT OF RS.21,65,606/ - AS EXEMPTED INCOME OF LTCG UNDER SECTION 10 (38) OF THE ACT . DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER OBSERVED FROM VARIOUS DETAILS FILED BY THE ASSESSEE THAT THE ASSESSEE HAS ACQUIRED 5,000 SHARES OF M /S. TURBOTECH ENGINEERING LTD. ON 09/04./2011 FOR A TOTAL COST OF RS.10,000/ - . DURING THE YEAR THE A SSESSEE HAS CLAIMED LONG TERM CAPI TAL GAIN BY SALE OF THESE 5000 EQUITY SHARES @ RS.438/ - ON 07/06/2013 AND CLAIMED THE EXEMPTED INCOME OF RS.21,65,606/ - . THE ASSESSING OFFICER ANALYSED THE FINANCIAL S OF THE COMPANY WHICH SHOWS THAT AT THE TIME OF INVESTMENT BY THE A SSESSEE IN APRIL, 2011 THE COMPANY WAS HAVING NO FINANCIAL CAPABILITIES OR FUTURE INCOME PROSPECTUS. THE NET WORTH OF THE COMPANY WAS NEGATIVE. THE COMPANY WAS INCURRING LOSSES AND THE FINANCIAL CAPABILITIES OR FUTURE INCOME PROSPECTUS DO NOT JUSTIFY THE CHOICE OF THE COMPANY AS AN INVESTMENT OPTION. THE TRADE PATTERNS OF M/S TURBOTECH ENGINEERING LTD. VIS A VIS BSE SENSEX SHOWS THAT THE 3 STOCKS O F M/S TURBOTECH ENGINEERING LTD. WERE NEITHER MOVING ALONG WITH THE SENSEX, NOR THE FINANCIAL OF THE COMPANY SHOW ANY REASON FOR THIS EXTRAORDINARY PERFORMANCE BY ITS STOCK. THE ASSESSEE ACQUIRED 5000 EQUITY SHARES OF M/S. TURBOTECH ENGINEERING LTD. FOR A CONSIDERATION OF RS. 10,000/ - AT A COST PRICE OF RS. 2/ - PER SHARE ON 09.04.2011 AS PER THE DEBIT NOTE FURNISHED BY THE ASSESSEE FROM M/S SHREEJI BROKING PVT. LTD. IN CASH. THE SHARES WERE SOLD DURING THE FINANCIAL YEAR 2013 - 14 ON 07.06.2013 FOR A TOTAL CO NSIDERATION OF RS. 21,75,606/ - RESULTING IN APPRECIATION IN VALUE OF SHARES BY APPROXIMATELY 216.5 TIMES OR, SAY THE VALUE OF SHARES INCREASED BY A HUMONGOUS 21650%. FURTHER, THE COMPANY HAS SHOWN VERY NOMINAL ASSETS AND THE VALUE OF RESERVES IS IN NEGATIV E FIGURES WHICH DOES NOT CORROBORATE WITH THE STEEP GROWTH RATE IN THE SHARE PRICES OF THE COMPANY: 3.1 THE ASSESSING OFFICER FURTHER NOTED THAT V ARIOUS SEARCH & SURVEY OPERATIONS HAVE BEEN CONDUCTED BY THE DIRECTORATE OF INVESTIGATION, KOLKATA, DELHI, MUM BAI & AHMEDABAD AND THE MODUS OPERANDI OF PROVIDING ACCOMMODATION ENTRY IN SUCH CASES WERE FOUND . F URTHER, INVESTIGATION WING, KOLKATA IDENTIFIED 84 LISTED PENNY STOCK COMPANIES, SHARES OF WHICH WERE USED FOR GENERATING BOGUS LTCG BY VARIOUS ENTRY OPERATOR S FOR THE BENEFICIARIES WHO APPROACHED THE ENTRY OPERATORS. THE LARGE SCALE INVESTIGATION RESULTED INTO IDENTIFYING THE BENEFICIARIES WHO HAVE TAKEN SUCH BOGUS LTCG BY TRADING THE SHARES OF SUCH PENNY STOCK COMPANIES AND THE COMPANY M/S TURBOTECH ENGINEERI NG LTD. HAS BEEN IDENTIFIED WHICH HAVE BEEN USED FOR GENERATING BOGUS LONG TERM CAPITAL GAIN . 3.2 THE ASSESSING OFFICER OBSERVED THAT S H. NIKHIL JAIN DIRECTOR M/S. ABHINANDAN STOCK BROKING PVT. LTD. AND M/S. ASB COMMODITIES PVT. LTD. IN HIS STATEMENT RECO RDED DURING THE COURSE OF SURVEY UNDER SECTION 133A OF THE ACT HAS ELABORATELY FURNISHED THE MODUS OPERANDI OF THIS PRACTICE OF PROVIDING LONG TERM CAPITAL GAIN/LONG TERM CAPITAL LOSS BY WAY OF 4 ACCOMMODATION ENTRIES OF VARIOUS BOGUS/PENNY STOCK SCRIPS USIN G VARIOUS PAPER/SHELL COMPANIES. IN THIS STATEMENT, SH. NIKHIL JAIN HAS PROVIDED A LIST WHERE THE SCRIP TURBO TECH - 504358 ALONG WITH OTHER SCRIPS ALSO FINDS A MENTION AT SERIAL NO. 27. 3.3 THE ASSESSING OFFICER F URTHER OBSERVED THAT SH. SANJAY VORA IN HI S STATEMENT RECORDED DURING THE COURSE OF SURVEY UNDER SECTION 133A OF THE ACT WAS CONFRONTED IN QUESTION NO. 60 WITH THE LIST OF CLIENTS USING THE BROKERAGE OF THE COMPANY ANAND RATHI SHARE & STOCK BROKER INVOLVED IN BOGUS LTCG, WHERE THE NAME OF M/S TURB O TECH ENGINEERING LTD. IS APPEARING . IN VIEW OF THE ABOVE AND REJECTING THE VARIOUS EXPLANATION GIVEN BY THE ASSESSEE AND RELYING ON VARIOUS DECISION S , THE ASSESSING OFFICER HELD THAT THE ASSESSEE HAS ENTERED INTO COLOURABLE DEVICE FOR AVOIDANCE OF TAX AN D RECEIPT OF RS.21,65,606/ - BY WAY OF CHEQUE IS NOTHING BUT UNEXPLAINED CASH CREDIT OF U/S 68 OF THE IT ACT. HE ACCORDINGLY MADE ADDITION OF RS.21,65,606/ - TO THE TOTAL INCOME OF THE ASSESSEE. 4. IN APPEAL, THE LD. CIT(A) UPHELD THE ACTION OF THE ASSESS ING OFFICER. W HILE DOING SO HE NOTED THAT D URING THE COURSE OF ASSESSMENT PROCEEDINGS, LETTERS WERE ISSUED BY THE ASSESSING OFFICER TO SEBI, BSE, KOTAK SECURITIES LTD., AND M/S. SHREEJI BROKING PVT. LTD. TO GATHER RELEVANT INFORMATION. LETTER(S) SENT TO M/ S. SHREEJI BROKING PVT. LTD. AT THEIR REGISTERED ADDRESS WAS RETURNED BACK UN - SERVED. FURTHER, THE 11 MEMBER SPECIAL INVESTIGATION TEAM (SIT) OF THE HON BLE SUPREME COURT OF INDIA ON BLACK MONEY HAS ALSO POINTED OUT THE ABOVE MENTIONED MODUS OPERANDI IN T HE THIRD SIT REPORT ON BLACK MONEY. FURTHER, SEBI AS SURVEILLANCE MEASURE BANNED THE TRADING OF SECURITIES OF M/S. TURBOTECH ENGINEERING LTD. AND SUSPENDED M/S. TURBOTECH ENGINEERING LTD. WITH EFFECT FROM 07/01/2015. THOUGH ASSESSING OFFICER HAS MENTIONED THIS FACT IN ASSESSMENT ORDER IN PARA 12 BUT THE ORDER PASSED BY THE BSE HAS NOT BEEN GIV E N BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER. IN VIEW OF THE ABOVE AND RELYING ON VARIOUS DECISIONS, THE LD. CIT(A) UPHELD THE ACTION OF THE ASSESSING 5 OFFICER. 5 . AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 6 . THE LD. COUN S EL FOR THE ASSESSEE STRONGLY CHALLENGED THE ORDER OF THE CIT(A) IN SUSTAINING THE ADDITION MADE BY THE ASSESSING OFFICER. REFERRING TO PAGE 1 TO 3 OF THE PAPER BOOK , H E DREW THE ATTENTION OF THE BENCH TO THE PURCHASE BILL OF SHREE BROKING PRIVATE LIMITED, PAYMENT RECEIPT AND COPY OF ACCOUNT FOR PURCHASE OF SHARES. REFERRING TO PAGE 4 TO 7 OF THE PAPER BOOK HE DREW THE ATTENTION OF THE BENCH TO THE TRANSFER OF SHARES TO THE ASSESSEE. REFERRING TO PAGE 9 OF THE PAPER BOOK HE DREW THE ATTENTION OF THE BENCH TO THE COPY OF D - MAT ACCOUNT WITH KOTAK MAHINDRA BANK LTD. REFERRING TO PAGE 10 OF THE PAPER BOOK HE DREW MY ATTENTION OF THE CONTRACT NOTE FOR SA LE OF SHARES FROM KOTAK SECURITIES LIMITED. REFERRING TO PAGE 11 TO 12 OF THE PAPER BOOK HE DREW ATTENTION OF THE BENCH TO THE BANK STATEMENTS WHERE SALE PROCEED S WERE DEPOSIT ED AT KOTAK MAHINDRA BANK. HE SUBMITTED THAT THE ASSESSEE HAS NO TRANSACTIONS W ITH THE PERSONS WHOSE STATEMENTS WERE RECORDED. FURTHER, THOSE STATEMENTS WERE NEVER CONFRONTED TO THE ASSESSEE. REFERRING TO THE FOLLOWING DECISIONS HE SUBMITTED THAT THE ADDITION MADE BY THE ASSESSING OFFICER AND SUSTAINED BY THE CIT(A) IS NOT JUSTIFIED . 1 . KOLKATA BENCH C IN DCI VS. SUNITA KHEMKA IN ITA NO.714 TO 718/KOL/2011 ORDER DATED 28/10/2015 2 . AHMEDABAD BENCH IN DCIT VS. VINEET SURESHCHANDRA AGARWAL IN ITA NO.1442/AHD/2013 AND CO/AHD /2013 ORDER PASSED DATED 06.01.2017. 3 . MUMBAI BENCH E IN SUNIL PRAK ASH VS. ACIT ITA NO.6494/MUM/2014 ORDER DATED 08.03.2017 4 . AHEMDABAD BENCH B IN PRATIK SURYAKANT SHAH VS. ITO (2017) 77 TAXMANN.COM 260 (AHD). 6 5 . MUMBAI BENCH IN MUKESH R. MAROLIA VS. ADDL. CIT IN ITA NO.1201/MUM/2005 ORDER DATED 15.12.2005 6 . KOLKATA HIGH COURT I N CIT VS. CARBO INDL. HOLDINGS LTD. (200) 244 ITR 422 (CALL) 7 . KOLKATA BNECH D IN DOLARANI HEMANI VS. ITO IN ITA NO.3801/MU,/2011 ORDER DATED 27.04.2016 8 . MUMBAI BENCH H IN ITO VS. ARVIND KUMAR JAIN HUF IN ITA NO.4862/MUM/2014 ORDER DATED 18.09.2017 9 . PUNJAB & H ARYANA HIGH COURT IN PR. CIT VS. PREM PAL GANDHI ORDER DATED 18.01.2018 IN ITA NO. 95/2017 (O &M) 10 . HYDERABAD BENCH A IN SMT. SARITA DEVI AND SMT. NITIKA KUMARI VS. ITO IN ITA NO.1228 AND 1229 /HYD./2016 ORDER DATED 05.05.2017 11 . HYDERABADA BENCH A IN ITA VS. K . RAMAKRISHNA REDDY IN ITA NO.1614/HYD/2017 ORDER DATED 29.05.2018 12 . KOLKATA SMC IN PRAKASH CHAND BHUTORIA VS. ITO IN ITA NO.2394/KOL/2017 ORDER DATED 27.06.2018 13 . KOLKATA BENCH C IN NAVNEET AGARWAL VS. ITO IN ITA NO.2281/KOL/2017 ORDER DATED 20.07.2018 14 . RAJAST HAN HIGH COURT CIT VS. SMT. POOJA AGGARWAL IN ITA NO.3851/2011 DATED 11.09.2017 15 . KOLKATA BNECH C IN DCIT VS. SUNITA KHEMKA IN ITA NO.714 TO 718/KOL/2011 ORDER DATED 28.10.2015 16 . ITAT AHEMDABAD BENCH IN DCIT VS. VINEET SURESHCHANDRA AGGARWAL 6494/MUM/2014 ORDE R DATED 08.03.2017 17 . ITAT AHEMDABAD BENCH B IN PRATIK SURYAKANT SHAH VS. ITO (2017) 77 TAXMANN.COM 260 (AHD) 18 . ITAT MUMBAI BENCH IN MUKESH R. MAROLIA VS. ADDL. CIT IN ITA NO.1201/MUM/2005 ORDER DATED 15.12.2005 19 . KOLKATA HIGH COURT IN CIT VS. CARBO INDL HOLDINGS LTD. (200) 244 ITR 422 (CAL). 7 20 . ITAT KOLKATA BENCH D IN DOLARANI HEMANI VS. ITO IN ITA NO.19/KOL/2014 ORDER DATED 02.12.2016 21 . ITAT MUMBAI BENCH F IN FARRAH MARKAR VS. ITO IN ITA NO.3801/MUM/2011 ORDER DATED 02.12.2016 22 . ITAT MUMBAI BENCH H IN ITO VS. ARVIND KU MAR JAIN HUF IN ITA NO. 4862/MUM/2014 ORDER DATED 18.09.02017 23 . PUNJAB & HARYANA HIGH COURT IN PR. CIT VS. PREM PAL GANDHI ORDER DATED 18.01.2018 IN ITA NO.95/2017 ( O & M) 24 . ITAT HYDERABAD BENCH A IN SMT. SARITA DEVI AND SMT. NITIKA KUMARI VS. ITO IN ITA NO. 1228 AND 1229 /HYD/2016 ORDER DATED 05.05.2017 25 . ITAT HYDERABAD BENCH A IN ITO VS. K. RAMAKRISHNA REDDY IN ITA NO.1614/HYD/2017 ORDER DATED 29.05.2018 26 . ITAT KOLKATA SMC IN PRAKASH CHAND BHUTORIA VS. ITO IN ITA NO.2394/KOL/2017 ORDER DATED 27.06.2018 27 . ITAT, KO LKATA BENCH C IN NAVNEET AGGARWAL VS. ITO IN ITA NO.2281/KOL/2017 ORDER DATED 20.07.2018 28 . RAJASTHAN HIGH COURT IN CIT VS. SMT. POOJA AGGARWAL IN ITA NO.385 AND 603/2011 ORDER DATED 11.09.2017 7 . HE ACCORDINGLY SUBMITTED THAT THE ADDITION MADE BY THE ASSES SING OFFICER SHOULD BE DELETED. 8 . THE LD. DR ON THE OTHER HAND HEAVILY RELIED ON THE ORDER OF THE ASSESSING OFFICER AND CIT(A). 9 . I HAVE CONSIDERED THE RIVAL ARGUMENTS AND PERUSED THE MATERIAL AVAILABLE ON RECORD . I HAVE ALSO CONSIDERED THE VARIOUS DECISION CITED BEFORE ME. I FIND THE ASSESSEE IN THE INSTANT CASE HAS SOLD SHARES OF M/S. TURBOTECH ENGINEERING LIMITED AND CLAIMED PROFIT ARSING OUT OF SA L E OF ABOVE SHARES OF RS.21,65,606/ - AS EXEMPT U/S 10 ( 38) OF THE IT ACT. I FIND 8 THE ASSESSING OFFI CER REJECTED THE CLAIM OF SUCH EXEMPTION ON THE GROUND THAT ASSESSEE HAS ENTERED INTO A COLOURABLE DEVICE FOR AVOIDING THE TAX AND RECEIPT OF SALE PROCEED S BY WAY OF CHEQUE IS NOTHING BUT UNEXPLAINED CASH CREDIT U/S 68 OF THE IT ACT. WHILE DOING SO THE AS SESSING OFFICER HAD REFERRED TO TH E STATEMENTS FROM NIKHIL JAIN AND SH. SANJAY VOHRA. I FIND THE LD. CIT(A) UPHELD THE ACTION OF THE ASSESSING OFFICER. IT IS THE SUBMISSION OF THE LD. C OUNSEL FOR THE ASSESSEE THAT THE TRANSACTIONS MADE BY THE ASSESSEE ARE NOT WITH THE PERSONS WHOSE STATEMENTS WERE RECORDED. FURTHER SUCH STATEMENTS WERE NEVER GIVEN OR CONFRONTED TO THE ASSESSEE. THE LOWER AUTHORITIES HAVE PROCEEDED TO TAX THE PROFIT ARISING OUT OF SALE OF SUCH SHARE S IN THE HANDS OF THE ASSESSEE ON THE GR OUND THAT THE ASSESSEE MAY BE ONE OF SUCH BENEFICIARIES . H OWEVER , THE SHARES ACCORDING TO THE LD. AR WERE SOLD THROUGH D - MAT ACCOUNT MAINTAINED WITH KOTAK MAHINDRA BANK , THERE WERE CONTRACT NOTE S FOR PURCHASE OF THE SHARES AND THE SALE PROCEED WERE RECEIVE D BY CHEQUE. IT IS THE SUBMISSION OF THE LD. DR THAT THE SHARES WERE PURCHASED OF F MAEKT AND THERE IS NO PROPER JUSTIFICATION FOR HUGE RISE IN THE PRICE OF THE SHARES WHEN THE COMPANY HAS NOT DONE ANY SUBSTANTIAL BUSINESS SO AS TO COMMAND SUCH HUGE PREMIU M. CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND IN THE INTEREST OF JUSTICE I DEEM IT PROPER TO RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO PROVIDE THE STATEMENT S OF THE PERSONS WHICH ARE THE BASIS FOR MAKIN G THE ADDITION IN THE INSTANT CASE. THE ASSESSING OFFICER SHALL DECIDE THE ISSUE AS PER FACT AND LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. I HOLD AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FO R STATISTICAL PURPOSE. 1 0 . GROUND NO.5 OF APPEAL BY THE ASSESSEE READS AS UNDER : - THE CAR DEPRECIATION CLAIMED AT RS.62210/ - HAS BEEN DISALLOWED IN FULL. IT WAS CLAIMED AS DEDUCTION FROM BUSINESS INCOME (SALARY/INTEREST FROM PARTNERSHIP FIRM) FOR THE USE OF CAR FOR EARNING THAT BUSINESS INCOME. THE ASSET IN OWNED BY APPELLANT AND WAS USED FOR EARNING BUSINESS INCOME HENCE DEPRECIATION U/S 32 IS ALLOWABLE. 9 1 1 . FACTS OF THE CASE, IN BRIEF , ARE THAT THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS OBSERVED THAT ASSESSEE HAS CLAIMED DEPRECIATION OF RS.62210/ - ON MOTOR CAR . SINCE THE ASSESSEE IS A PARTNER IN M/S. JAY KAY ENTERPRISES , NO DEPRECIATION IS ALLOWABLE IN THE CASE OF PARTNERS AND SUCH DEPRECIATION HAS TO BE CLAIMED AS BUSINESS E XPENDITURE IN THE PARTNERSHIP FIRM ONLY. HE THEREFORE, CONFRONTED THE SAME TO THE ASSESSEE. REJECTING THE VARIOUS EXPLANATION GIVEN BY THE ASSESSEE THE ASSESSING OFFICER DISALLOWED THE DEPRECIATION OF RS.62210/ - AND ADDED TO THE SAME TO THE TOTAL INCOME O F THE ASSESSEE. 12. IN APPEAL THE LD. CIT(A) UPHELD THE ACTION OF THE ASSESSING OFFICER BY OBSERVING AS UNDER : - 7. IN GROUND NO.5 THE APPELLANT HAS CHALLENGED THE DECISION OF THE ASSESSING OFFICER IN DISALLOWING THE CLAIM OF THE APPELLANT OF RS.62,210 / - ON ACCOUNT OF DEPRECIATION ON CAR . THE ASSESSING OFFICER HAS DISALLOWED THIS ON THE GROUND THAT THE APPELLANT IS ONLY EARNING THE REMUNERATION AND INTEREST FROM THE PARTNERSHIP FIRM M/S. J. K. ENTERPRISES AND THE VEHICLE IS NOT USED FOR THE PURPOSE O F HIS OWN BUSINESS BUT FOR THE PURPOSE OF BUSINESS OF THE FIRM. THE APPELLANT HAS FAILED TO GIVE ANY WRITTEN SUBMISSION OR ORAL SUBMISSION IN SUPPORT OF THIS GROUND OF APPEAL DURING THE COURSE OF APPELLANT PROCEEDINGS, HENCE THIS GROUND IS DISMISSED AS NO T PRESSED. 1 3 . AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 1 4 . I HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. I FIND THE ASSESSING OFFICER DISALLOW ED THE CLAIM OF DEPRECIATION OF RS.62210/ - ON THE GROUND THAT THE ASSESSEE HAS RECEIVED ONLY REMUNERATION AND INTEREST FROM THE PARTNERSHIP FIRM M/S. JAY KAY ENTERPRISES AND THE VEHICLE IS NOT USE D FOR THE PURPOSE 10 OF OWN BUSINESS BUT FOR THE PURPOSE OF THE BUSINESS OF THE FIRM . S INCE THE ASSESSEE DID NOT GIVE ANY SUBMISSION BEFORE THE CIT(A) ON THIS ISSUE EITHER WRITTEN OR ORAL , T HE LD. CIT(A) DISMISS ED THE GROUND RAISED BY THE ASSESSEE. EVEN BEFORE ME ALSO THE LD. COUNSEL FOR THE ASSESSEE DID NOT MAKE ANY SUBMISSION ON THIS ISSUE. U NDER THESE CIRCUMSTANCES THE GROUND RAISED BY THE ASSESSEE IS DISMISSED. 15 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY A LLOWED FOR STATISTICAL PURPOSE . ORDER PRONOUNCED IN THE OPEN COURT ON 31 .1 2 .2018 . SD/ - ( R. K. PANDA ) ACCOUNTANT MEMBER *NEHA* DATE: - 31 . 1 2 .2018 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 20.11.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS 31 .12.2018 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 FINAL ORDER IS UPLOADED 31.12.2018 11 ON THE WEBSITE OF ITAT DATE ON WHICH THE FIL E 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