Shri Madan Chattaraj, Durgapur V. ITO, Wd.1(3), Asansol, Asansol

ITA 444/KOL/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99658 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2015
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 18-03-2014
• Court: TRIBUNAL
• Keywords: Depreciation
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH SMC , KOLKATA [BEFORE HON BLE SHRI MAHAVIR SINGH, JM ] IT A NO.444 /KOL/2014 ASSESSMENT YEAR : 2008 - 09 ( A PPELLANT ) (RESPONDENT) SHRI MADAN CHATTARAJ - VERSUS - I.T.O., WARD - 1(3 ) DURGAPUR ASANSOL (PAN AEMPC 6563 Q) FOR THE APPELLANT : NONE FOR THE RESPONDENT : SHRI SUBHENDU DUTTA DATE OF HEARING : 27 .07 .2015. DATE OF PRONOUNCEMENT : 03.08.2015 ORDER THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER OF LD. CIT(A) - ASAN SOL I N APPEAL NO . 475/CIT(A)/ASL/W - 1(3)/ASL/10 - 11 DATED 15.01.2014 FOR A.Y.2008 - 09 . ASSESSMENT WAS FRAMED BY I.T.O., WARD - 1(3), ASANSOL U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REF ERRED TO AS THE ACT ) FOR A.Y . 2008 - 09 VIDE ITS ORDER DATED 27 . 12 .2010. 2. THE ONLY ISSUE TO BE DECIDED IN THIS APPEAL IS AS TO WHETHER THE ASSESSEE IS ENTITLED FOR DEPRECIATION ON PAY - LOADER @30% OR @15%. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND A CIVIL LABOUR CONTRACTOR. FOR THE PURPOSE OF HIS BUSINESS HE HAD PURCHASED A PAY LOADER AMOUNTING TO RS.27,49,860/ - DURING THE ASSESSMENT YEAR UNDER APPEAL AND CLAIMED DEPRECIATION @30% ON IT IN HIS RETURN OF INCOME. THE LD.AO RESTRICTED THE ALLOWANCE OF DEPRECIATION @15%, AS ACCO RDING TO HIM THE PAY LOADER PURCHASED BY THE ASSESSEE HAS BEEN USED BY THE ASSESSEE FOR HIS BUSINESS PURPOSES AND NOT LET ON HIRE AND THE PAY LOADER BECOMES THE PLANT AND MACHINERY OF THE ASSESSEE AND HENCE THE ASSESSEE IS NOT ENTITLED FOR DEPRECIATION @30 %. ITA NO. 444/KOL/2014 SHRI MADAN CHATTARAJ A.YR. 2008 - 09 2 AGGRIEVED BY THIS ORDER, THE ASSESSEE CHALLENGED THIS ISSUE BEFORE LD. CIT(A), WHO IN PARA - 6 OF HIS ORDER HAD GIVEN A CATEGORICAL FINDING THAT THE ASSET IS USED FOR ASSESSEE S OWN BUSINESS AND NOT LET ON HIRE AND ACCORDINGLY UPHELD THE ORDER OF THE AO IN THIS REGARD. AGGRIEVED BY THIS ORDER, THE ASSESSEE PREFERRED FURTHER APPEAL BEFORE THIS TRIBUNAL. 4. NONE APPEARED ON BEHALF OF THE ASSESSEE. SHRI SUBHENDU DUTTA, JCIT THE LD. DR APPEARED ON BEHALF OF THE REVENUE. 5. I HAVE HEARD THE LD. DR, WHO VEHEMENTLY SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES. ON A SPECIFIC QUESTION FROM THE BENCH AS TO WHETHER ANY HIRE CHARGES WERE R EPORTED BY THE ASSESSEE IN HIS RETURN OF INCOME JUSTIFYING HIS CLAIM OF DEPRECIATION @30%, THE SAME COULD NOT BE ANSW ERED AT THE TIME OF HEARING BY THE LD. DR FOR WANT OF NECESSARY DETAILS. HENCE, IN THE INTEREST OF JUSTICE AND FAIR PLAY, I DEEM IT FIT TO SET ASIDE THIS ISSUE TO THE FILE OF LD. AO WITH A SPECIFIC DIRECTION TO VERIFY WHETHER THE ASSESSEE HAD OFFERED ANY HIR E CHARGES FOR USING THIS PAY LOADER IN HIS PROFIT AND LOSS ACCOUNT , THEN THE ASSESSEE IS ENTITLED FOR DEPRECIATION @30%. OTHERWISE, THE ASSESSEE IS ENTITLED FOR DEPRECIATION @15%. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICA L PURPOSES. O RDER PRONOUNC ED IN TH E COURT . SD/ - [MAHAVIR SINGH] JUDICIAL MEMBER DATE: 03.08.2015. R.G.(.P.S.) ITA NO. 444/KOL/2014 SHRI MADAN CHATTARAJ A.YR. 2008 - 09 3 COPY OF THE ORDER FORWARDED TO : 1 . SHRI MADAN CHATTARAJ, 24/16, BEN GAL AMBUJA, CITY CENTRE, DURGAPUR - 16. 2 THE I.T.O., WARD - 1(3), ASANSOL. 3 . THE CIT, 4. THE CIT(A) - ASANSOL. 5 . DR, KOLKATA BENCHES, KOLKATA TRUE COPY , BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES