Sri Manoranjan Maity, Purba Medinipur V. ITO, Wd-1, Haldia, Purba Medinipur

ITA 463/KOL/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4993 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 20-03-2014
• Court: TRIBUNAL
• Department Lawyers: MD GAYAS UDDIN
• Assessee Lawyers: SWAPAN MUKHOPADHY AY
• Keywords: Depreciation
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH: KOLKATA [BEFORE SHRI MAHAVIR SINGH, JM] I.T.A NO.463/KOL/2014 ASSESSMENT YEAR: 2009-10 MANORANJAN MAITY VS. INCOME-TAX OFFICER, WD-1 , HALDIA (PAN: ADSPM9046P) ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 24.02.2016 DATE OF PRONOUNCEMENT: 04.03.2016 FOR THE APPELLANT: SHRI SWAPAN MUKHOPADHYAY, ADVO CATE FOR THE RESPONDENT: MD. GAYAS UDDIN, JCIT, SR. DR ORDER THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A)-XXXIII, KOLKATA VIDE APPEAL NO. 214/CIT(A)-XXXIII/ITO WARD-1,HAL/11-12 DATED 23.01. 2014. ASSESSMENT WAS FRAMED BY ITO, WARD- 1, HALDIA U/S. 143(3) OF THE INCOME-TAX ACT, 1961 ( HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMEN T YEAR 2009-10 VIDE HIS ORDER DATED 22.12.2011. 2. THE FIRST ISSUE IN THIS APPEAL OF ASSESSEE IS A GAINST THE ORDER OF CIT(A) CONFIRMING THE ADDITION MADE BY AO OF RS.2,75,600/-. 3. BRIEFLY STATED FACTS ARE THAT THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS NOTICED THAT THERE IS DEPOSIT OF RS.2,75,600/- IN ASSESSEES BAN K ACCOUNT, HENCE HE REQUESTED THE ASSESSEE TO EXPLA IN THE SAME. THE ASSESSEE EXPLAINED THAT ONE SMT. ASH RU KANA JANA HAS PURCHASED BUS FROM THE ASSESSEE AND SHE DEPOSITED THE SUM OF RS.2,75,600/- IN HIS S AVINGS BANK ACCOUNT. BUT THE AO DISBELIEVED THIS EXPLANATION AND MADE ADDITION OF THIS AMOUNT. AGGR IEVED, ASSESSEE PREFERRED APPEAL BEFORE CIT(A), WHO ALSO DISBELIEVED THE EXPLANATION AND CONFIRMED THE ADDITION. AGGRIEVED, ASSESSEE IS IN SECOND APPEAL BEFORE TRIBUNAL. 4. I HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. I FIND THAT BEFORE THE LOWER AUTHORITIES THE ASSESSEE FILED AN AFFIDAVIT SWORN BY SMT. ASHRU KANA JANA, THE PURCHA SER OF THE BUS WHEREIN SHE HAD DEPOSED THAT SHE PURCHAS ED THE BUS FROM THE ASSESSEE FOR AN AMOUNT OF RS.2,75,600/- AND DEPOSITED THE AID AMOUNT IN THE S AVINGS BANK ACCOUNT OF THE ASSESSEE. IT IS ALSO A FACT RECORDED BY CIT(A) THAT THIS BUS WAS TRANSFERRED IN THE NAME OF SMT. ASHRU KANA JANA VIDE PARA 6.2 OF HIS ORDER AS UNDER: 6.2. I HAVE GONE THROUGH THE APPELLANT'S REPLY. T HE APPELLANT'S SUBMISSION REGARDING THE INCOME TAXABLE UNDER SECTION 44AE IS ACCEPTABLE. HOWEVER A S REGARDS THE DEPRECIATION AND CAPITAL GAINS IN RESPECT OF THE MOTOR BUS, I FIND THAT THE APPELLANT HAS NOT DISPUTED THAT THE OWNERSHIP OF THE MOTOR BUS HAD BEEN TRANSFERRED ON 18.03.2009. IT IS ALSO NOT DISPUTED THAT AN AMOUNT OF RS. 4,20,000/- WAS RECEIVED FROM SMT. ASHRU KANA JANA. THE APPELLANT C LAIMS THAT THE CONSIDERATION WAS ACTUALLY RS.275600/- AS DISCUSSED ABOVE IN PARA NO. 4 ABOVE, BUT AS HELD EARLIER, THE MOTOR BUS WAS ACTUALLY TRANSFERRED FOR A CONSIDERATION OF RS. 4,20,000/- A ND THE UNDISPUTED DATE OF TRANSFER OF OWNERSHIP WAS 18.03.2009. THE APPELLANT'S CLAIM THAT THE POSS ESSION WAS WITH THE APPELLANT EVEN AFTER TRANSFER OF THE OWNERSHIP IS NOT SUPPORTED BY ANY EVIDENCE. AS THE APPELLANT DID NOT OWN THE ASSET ON THE LAST DATE OF THE PREVIOUS YEAR AND THE BLOCK HAD CEASED TO EXIST NO DEPRECIATION IS ALLOWABLE ON THE MOTOR 2 ITA NO.463/KOL/2014 MANORANJAN MAITY AY 2009-10 2 BUS AND SHORT TERM CAPITAL GAIN OF RS.9147/- AS PRO POSED IN THE SHOW CAUSE LETTER AS PER THE PROVISIONS OF SECTION 50(2) OF THE INCOME-TAX ACT, 1961 HAS TO BE BROUGHT TO TAX. HENCE THE ASSESSING OFFICER IS DIRECTED TO DISALLOW DEPRECATION OF RS. 123256/- CLAIMED ON THE MOTOR BUS AND, BRING TO TAX SHORT TERM CAPITAL (I.E. SALES PROCEEDS OF RS.4 ,20,000 W.D.V OF RS.410853) IN RESPECT OF THE CEASED BLOCK OF ASSET OF MOTOR BUS. THE APPELLANT HAS AGREED THAT DOUBLE DEDUCTION OF RS.66,183/- ON ACCOUNT OF DEPRECIATION IN RESPECT OF MINI TRUCK HAS BEEN CLAIMED. HENCE THE ASSESSING OFFICER IS DIRECTED TO DISALLOW THE EXCESS DEDUCTION OF RS.661 83/- CLAIMED BY THE APPELLANT. I FIND THAT ONCE THIS BUS IS TRANSFERRED FOR AN AMO UNT OF RS.4.20 LACS AND ASSESSEE HAS DEPOSITED THIS AMOUNT OF RS.2,75,600/- IN ASSESSEES SAVINGS BANK ACCOUNT, THE AMOUNT ITSELF IS EXPLAINED. IN TERM O F THE ABOVE, WE DELETE THE ADDITION. THIS ISSUE OF AS SESSEES APPEAL IS ALLOWED. 5. COMING TO SECOND ISSUE OF ASSESSEES APPEAL IN R EGARD TO DISALLOWANCE OF DEPRECIATION ON THIS BUS AMOUNTING TO RS.1,23,256/-. 6. I HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. I FIND THAT IN THE ABOVE PARA I HAVE ALREADY NOTED THAT THE MOT OR BUS WAS TRANSFERRED IN THE NAME OF SMT. ASHRU KANA JANA ON 18.03.2009 AND ONCE THIS IS THE POSITI ON, THE ASSESSEE IS NOT ENTITLED TO DEPRECIATION AN D CIT(A) HAS RIGHTLY DISALLOWED THE SAME. THIS ISSUE OF REVENUES APPEAL IS DISMISSED. 7. IN THE RESULT, THE APPEAL OF ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 04.03.2016. SD/- (MAHAVIR SINGH) JUDICIAL MEMBER DATED : 4 TH MARCH, 2016 JD. SR. P.S COPY OF THE ORDER FORWARDED TO: 1. APPELLANT SHRI MANORANJAN MAITY, VILL. MACHHALAND APUR, P.O. GOPALPUR, P.S. MAHISHADAL, HALDIA, DIST. PURBA MEDINIPUR 721628. 2. RESPONDENT ITO, WARD-1, HALDIA 3. CIT(A), , KOLKATA 4. CIT, , KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .