ACIT, Circle-1, Anantapur, Anantapur V. Diwakar Road Lines, Anantapur, Anantapur

ITA 489/HYD/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6560 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 3 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2018
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 12-07-2018
• Assessment Year: 2011-2012
• Appeal Filed On: 07-04-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: J P KUMAR
• Keywords: Depreciation; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI DUVVURU R.L. REDDY, JUDICIAL MEMBER ITA NO. 489/HYD/2016 ASSESSMENT YEAR: 2011-12 ACIT, CIRCLE-1, AAYAKAR BHAVAN, ANANTAPUR. VS. M/S DIWAKAR ROAD LINES, D.NO. 15-311, SANJEEVA NAGAR TADIPATRI. PAN AAAFT9857C (APPELLANT) (RESPONDENT) REVENUE BY : SHRI J.P KUMAR, DR ASSESSEE BY : SHRI K.C DEVDAS, AR DATE OF HEARING 12/07/2018 DATE OF PRONOUNCEMENT 13/07/2018 O R D E R PER INTURI RAMA RAO, AM: THIS IS AN APPEAL FILED BY THE REVENUE, DIRECTED AGAINST THE ORDER OF THE LD. CIT(A), KURNOOL DATED 22.01.2016 FOR THE A.Y 2011- 12. THE REVENUE RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS. 99,39,413/- MADE ON ACCOUNT OF DISALLOWANCE OF DEPRECIATION ON 11 BUSSES WHICH WERE RUN FOR LESS THAN 180 DAYS. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS. 28,13,045/- MADE ON ACCOUNT OF THE DISALLOWANCE OF DEPRECIATION ON 8 BUSES WHICH WERE NOT IN THE NAME OF THE ASSESSEE OR ITS PARTNERS. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN THE ADMITTING ADDITIONAL EVIDENCE WITHOUT GIVING THE A.O AN OPPORTUNITY UNDER RULE 6A OF THE IT RULES. 4. ANY OTHER GROUND THAT MAY BE URGED AT THE TIME OF HEARING. 2. THE RESPONDENT-ASSESSEE IS A PARTNERSHIP FIRM DULY CONSTITUTED UNDER THE PROVISIONS OF THE PARTNERSHIP ACT. IT IS ENGAGED IN THE BUSINESS OF GOODS CARRIER UNDER THE NAME AND STYLE OF DIWAKAR ROAD LINES. THE RETURN OF INCOME FOR THE A.Y 2011-12 WAS FILED ON 30.9.2011, DISCLOSING THE TOTAL INCOME OF RS. 48,11,610/-. AGAINST THE 2 ITA NO. 489/HYD/16 DIWAKAR ROAD LINES, ANANTAPUR. SAID RETURN OF INCOME, THE ASSESSMENT WAS COMPLETED BY THE ACIT, CIRCLE-1, ANANTAPUR VIDE ORDER DATED 29.03.2014 PASSED U/S 143 (3) OF THE IT ACT, AT A TOTAL INCOME OF RS. 1,75,64,068/-. WHILE DOING SO, THE A.O HAD RESTRICTED THE DEPRECIATION CLAIM OF THE ASSESSEE TO 50% ON THE GROUND THAT THE VEHICLES WERE NOT PUT TO USE FOR MORE THAN 180 DAYS DURING THE PREVIOUS YEAR RELEVANT TO THE CURRENT YEAR UNDER CONSIDERATION. IN RESPECT OF CERTAIN VEHICLES, THE CLAIM FOR DEPRECIATION WAS DENIED ON THE GROUND THAT THE VEHICLES WERE NOT REGISTERED IN THE NAME OF THE PARTNERS OF THE FIRM OR IN THE NAME OF THE FIRM. 3. BEING AGGRIEVED, AN APPEAL WAS PREFERRED BEFORE THE CIT(A) WHO VIDE THE IMPUGNED ORDER HAD ALLOWED THE APPEAL BY CONSIDERING THE ADDITIONAL EVIDENCE FILED IN THE FORM OF TRIP SHEETS ETC., TO COME TO CONCLUSION THAT THE ASSESSEE HAS PUT TO USE THE VEHICLES MORE THAN 180 DAYS. IN RESPECT OF THE ASSETS, ON WHICH, THE DEPRECIATION CLAIMED WAS DENIED, THE LD. CIT(A) CONCLUDED THAT THE REGISTRATION VEHICLE IN THE NAME OF THE PARTNERS OR FIRM IS NOT A MANDATORY AND WHAT IS REQUIRED ONLY BENEFICIAL OWNERSHIP OF THE VEHICLES TO BE ELIGIBLE FOR CLAIMING DEPRECIATION. 4. BEING AGGRIEVED THE REVENUE IS IN APPEAL BEFORE US. 5. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. FOR MERE PERUSAL OF THE LD. CIT(A), IT IS CLEAR THAT THE CIT(A) HAD CONSIDERED CERTAIN ADDITIONAL EVIDENCES LIKE TRIP SHEETS AND PAYMENT OF THE CONSIDERATION FOR ACQUISITION OF VEHICLES ETC., BUT, HOWEVER, THIS ADDITIONAL EVIDENCE WAS NOT ADMITTED IN ACCORDANCE THE PROVISIONS OF RULE 46A OF THE IT RULES AND NO OPPORTUNITY WAS PROVIDED TO THE AO FOR REBUTTING THE ADDITIONAL EVIDENCE. THEREFORE, WE ARE OF THE VIEW THAT IT IS A FIT AND PROPER TO REMAND THE ISSUE BACK TO THE FILE OF THE A.O FOR DE-NOVO CONSIDERATION OF THE MATTER AND ADJUDICATE THE ISSUES IN APPEAL CONSIDERING THE ADDITIONAL EVIDENCE 3 ITA NO. 489/HYD/16 DIWAKAR ROAD LINES, ANANTAPUR. FILED BEFORE THE CIT(A) AFTER AFFORDING DUE OPPORTUNITY BEING HEARD TO THE RESPONDENT ASSESSEE FIRM IN ACCORDANCE WITH LAW. THE ASSESSEE IS DIRECTED TO FILE ALL THE ADDITIONAL EVIDENCES BEFORE THE A.O, WHICH WERE FILED BEFORE THE CIT(A). 6. IN THE RESULT APPEAL FILED BY THE REVENUE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 13 TH JULY, 2018. SD/- SD/- (DUVVURU R.L REDDY) (INTURI RAMA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDERABAD, DATED: 13 TH JULY, 2018 KRK COPY TO:- 1) M/S DIWAKAR ROAD LINES, D.NO. 15-311, SANJEEVA NAGAR, TADIPATRI, ANANTPUR. 2) ACIT, CIRCLE-1, 3 RD ROAD, ANANTAPUR. 3) CIT(A, KURNOOL. 4) PR. CIT, KURNOOL. 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYDERABAD. 6) GUARD FILE