M/S. GAMMON INDIA LTD, MUMBAI V. THE ACIT CEN CIR-40, MUMBAI

ITA 5149/MUM/2007

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48718 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 9 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Next Hearing Date: 07-04-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 27-07-2007
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PAVAN VED PER R K
• Assessee Lawyers: F V IRANI; VINOD MODY
• Keywords: Depreciation; Retrospective amendment
• Section: 43B

Judgement Text

1 ITA NO 5149/M/2007 ITA NO.7430/M/2007 ITA NO.20/M/2009. IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI MUMBAI MUMBAI MUMBAI G GG G BENCH BENCH BENCH BENCH MUMBAI BENCHES, MUMBAI MUMBAI BENCHES, MUMBAI MUMBAI BENCHES, MUMBAI MUMBAI BENCHES, MUMBAI BEFORE BEFORE BEFORE BEFORE SHRI D MANMOHAN, VP & SHRI D MANMOHAN, VP & SHRI D MANMOHAN, VP & SHRI D MANMOHAN, VP & SHRI R K PANDA, AM SHRI R K PANDA, AM SHRI R K PANDA, AM SHRI R K PANDA, AM ITA NO. ITA NO. ITA NO. ITA NO. 5149/MUM/2007 ASSESSMENT YEAR 2003 5149/MUM/2007 ASSESSMENT YEAR 2003 5149/MUM/2007 ASSESSMENT YEAR 2003 5149/MUM/2007 ASSESSMENT YEAR 2003- -- -04) 04) 04) 04) ITA N ITA N ITA N ITA NO OO O. 7430/MUM/2007 (ASSESSMENT YEAR 2004 . 7430/MUM/2007 (ASSESSMENT YEAR 2004 . 7430/MUM/2007 (ASSESSMENT YEAR 2004 . 7430/MUM/2007 (ASSESSMENT YEAR 2004- -- -05) 05) 05) 05) & && & ITA NO.20/MUM/2009 (ASSES ITA NO.20/MUM/2009 (ASSES ITA NO.20/MUM/2009 (ASSES ITA NO.20/MUM/2009 (ASSESSMENT YEAR 2005 SMENT YEAR 2005 SMENT YEAR 2005 SMENT YEAR 2005- -- -06) 06) 06) 06) GAMMON INDIA LTD GAMMON HOUSE VEER SAVARKAR MARG PRABHADEVI MUMBAI 400 025 VS THE AST COMMR OF INCOME TAX CEN CIR 40, MUMBAI ( (( (APPELLANT APPELLANT APPELLANT APPELLANT) )) ) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) PAN NO. PAN NO. PAN NO. PAN NO.AAACG3821A AAACG3821A AAACG3821A AAACG3821A A SSESSEE BY SHRI F V IRANI & VINOD MODY REVENUE BY SHRI PAVAN VED PER R K PANDA, AM PER R K PANDA, AM PER R K PANDA, AM PER R K PANDA, AM THE ABOVE THREE APPEALS FILED BY THE ASSESSEE ARE D IRECTED AGAINST SEPARATE ORDERS OF THE CIT(A), MUMBAI RELATING TO ASSESSMENT YEARS 2003-04 TO 2005-06. SINCE COMMON GROUNDS ARE INVOL VED IN ALL THESE APPEALS; THEREFORE, THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER. ITA NO. ITA NO. ITA NO. ITA NO.5149/MUM/2007 ( 5149/MUM/2007 ( 5149/MUM/2007 ( 5149/MUM/2007 (ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR 2003 2003 2003 2003- -- -04) 04) 04) 04) 2 GROUND OF APPEAL NO.1 BY THE ASSESSEE READS AS UN DER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD CIT(A) ERRED IN UPHOLDING THE ADDITION OF RS. 18,97,330/- MADE BY T HE ASSESSING OFFICER UNDER SEC. 2(24(X) R.W. EXPLANATION TO SEC. 36(1)(V A) OF THE I T ACT. 2 ITA NO 5149/M/2007 ITA NO.7430/M/2007 ITA NO.20/M/2009. 2.1 FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSES SING OFFICER DISALLOWED AN AMOUNT OF RS. 18,97,330 U/S 2(24)(X) R.W.S 36(1)(V A) OF THE I T ACT BEING EMPLOYEES CONTRIBUTION TO PF DEDUCTED AND NOT PAID BEFORE THE DUE DATE BUT PAID BEFORE FILING OF THE RETURN. 2.2 IN APPEAL, THE CIT(A) UPHELD THE ACTION OF THE ASSESSING OFFICER FOR WHICH THE ASSESSEE IS IN APPEAL BEFORE US. 3 THE LD COUNSEL FOR THE ASSESSEE, REFERRING TO THE DECISION OF THE TRIBUNAL IN THE CASE OF METRO ENTERTAINMENT (BOMBAY) PVT LTD VS ITO VIDE ITA NO.1970/MUM/209 ORDER DATED 16.2.2010 FOR ASSESSMEN T YEAR 2004-05 SUBMITTED THAT THE TRIBUNAL AFTER CONSIDERING THE D ECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS ALOM EXTRUSION S LTD REPORTED IN 319 ITR 306(SC) AND THE DECISION OF THE HONBLE DELHI HI GH COURT IN THE CASE OF CIT VS AIMIL LTD REPORTED IN 321 ITR 508 HAS HELD THAT EMP LOYEES CONTRIBUTION TOWARDS PF AND ESIC ETC., DEPOSITED AFTER THE DUE DATE BUT BEFORE THE TIME ALLOWED FOR FILING OF RETURN U/S 139(1) WILL NOT CALL FOR ANY D ISALLOWANCE U/S 36(1)(VA) OF THE ACT. REFERRING TO THE DECISION OF THE HONBLE KA RNATAKA HIGH COURT IN THE CASE OF CIT VS SABARI ENTERPRISES REPORTED IN (2008) 2 98 ITR 141, HE SUBMITTED THAT THE HONBLE HIGH COURT HAS HELD THAT CONTRIBUTIONS MADE BY THE ASSESSEE TO PF AND ESIC WERE ALLOWABLE DEDUCTION EVEN THOUGH THESE WERE MADE BEYOND THE STIPULATED PERIOD AS CONTEMPLATED UNDER THE MANDATO RY PROVISIONS OF SEC. 36(1)(VA) R.W.S 2 (24)(X) AND SEC. 43B AS THE A MOUNTS WERE PAID BY THE ASSESSEE ON OR BEFORE THE DUE DATE OF FILING THE RE TURN U/S 139(1) OF THE ACT. HE 3 ITA NO 5149/M/2007 ITA NO.7430/M/2007 ITA NO.20/M/2009. SUBMITTED THAT THE ABOVE DECISION HAS BEEN UPHELD B Y THE HONBLE SUPREME COURT IN THE CASE OF CIT VS ALOM EXTRUSIONS LTD RE PORTED IN 319 ITR 306 WHERE THE NAME OF SABARI ENTERPRISES ALSO APPEARS. HE A CCORDINGLY SUBMITTED THAT THIS IS A COVERED MATTER. THE LD DR, ON THE OTHER HAND SUPPORTED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A). 4 AFTER HEARING BOTH THE PARTIES AND IN VIEW OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF ALOM EXTRUSIONS LTD (S UPRA) AND VARIOUS OTHER DECISIONS RELIED ON BY THE LD COUNSEL FOR THE ASSES SEE, WE HOLD THAT EMPLOYEES CONTRIBUTION TO PF AMOUNTING TO RS. 18,97,320/- PA ID BY THE ASSESSEE BEFORE THE DUE DATE OF FILING OF THE RETURN CANNOT BE DISALLOW ED U/S 2(24)(X) R.W EXPLANATION TO SEC 36(1)(VA) OF THE I T ACT. SINCE IN THE INST ANT CASE, THE ASSESSEE ADMITTEDLY HAS PAID THE DUES BEFORE THE DUE DATE OF FILING OF THE RETURN; THEREFORE, IN VIEW OF THE DECISION CITED ABOVE, THE SAME CANNOT BE DISALL OWED. ACCORDINGLY, THE ORDER OF THE CIT(A) IS SET ASIDE AND THE GROUND RAISED BY THE ASSESSEE IS ALLOWED. 5 GROUND OF APPEAL NO.2 BY THE ASSESSEE READS AS UN DER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD CIT(A) ERRED IN UPHOLDING THE DISALLOWANCE OF RS. 23,05,077/- MADE BY THE ASSESSING OFFICER U/S 43B R.W. EXP TO SEC 36(1)(VA) OF THE AC T. 6 AFTER HEARING BOTH THE SIDES, WE FIND, THE ASSESS ING OFFICER DISALLOWED AN AMOUNT OF RS. 23,05,077/- U/S 43B R.W. EXPLANATION TO SEC. 36(1)(VA) ON THE GROUND THAT EMPLOYERS CONTRIBUTION TOWARDS PF WAS NOT PAID WITHIN THE GRACE PERIOD ALLOWED UNDER THE SAID ACT; BUT PAID BEFOR E THE DUE DATE OF FILING OF THE RETURN, WHICH HAS BEEN UPHELD BY THE CIT(A). WE FI ND, THE COORDINATE BENCHES OF 4 ITA NO 5149/M/2007 ITA NO.7430/M/2007 ITA NO.20/M/2009. THE TRIBUNAL ARE TAKING THE CONSISTENT VIEW THAT EM PLOYERS CONTRIBUTIONS TOWARDS PF& ESIC ETC., IF PAID AFTER THE GRACE PERIOD BUT B EFORE THE DUE DATE OF FILING OF THE RETURN, HAS TO BE ALLOWED AS DEDUCTION. SINCE THE ASSESSEE, IN THE INSTANT CASE, ADMITTEDLY HAS PAID THE EMPLOYERS CONTRIBUT ION TOWARDS PF AMOUNTING TO RS. 23,05,777/- BEFORE THE DUE DATE OF FILING OF TH E RETURN; THEREFORE, THE SAME CANNOT BE DISALLOWED U/S 43B R.W. EXPLANATION TO SE C. 36(1)(VA) OF THE ACT. ACCORDINGLY, THE ORDER OF THE CIT(A) ON THIS ISSUE IS SET ASIDE AND THE GROUND RAISED BY THE ASSESSEE IS ALLOWED. 7 GROUND OF APPEAL NO.3 BY THE ASSESSEE READS AS UN DER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD CIT(A) ERRED IN UPHOLDING THE DECISION OF THE ASSESSING OFFICER OF ALLOWING DEPRECIATION ON DUMPERS @ 25% ONLY, AS AGAINST 50% CLAIMED BY THE A PPELLANT, BEING NEW COMMERCIAL VEHICLES AS PER CLAUSE III(3)(VI) OF OLD APPENDIX R.W.R OF THE I T RULES 1962.. 7.1 FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSES SEE CLAIMED DEPRECIATION @ 40% AND 50% ON COMMERCIAL VEHICLES RESPECTIVELY AS PER THE CHART SHOWING WORKING OF DEPRECIATION FURNISHED ALONG WITH THE TA X AUDIT REPORT. ON BEING QUESTIONED BY THE ASSESSING OFFICER TO SUBSTANTIATE THE CLAIM OF HIGHER RATE OF DEPRECATION ON DUMPERS WHICH ACCORDING TO HIM ARE NOT COMMERCIAL VEHICLES, THE ASSESSEE REPLIED THAT DEPRECIATION HAS BEEN CLA IMED @ 40% AND 50% ON COMMERCIAL VHICLE ACQUIRED DURING THE FY 1989-99 TO 2001-02 RESPECTIVELY. SUCH CLAIM IS AS PER CLAUSE III-(3) OF THE DEPRECIATION RATES. THE DEFINITION OF COMMERCIAL VEHICLE WAS ALSO EXPLAINED TO THE ASSESS ING OFFICER. IT WAS SUBMITTED THAT DUMPERS WHICH ARE BASICALLY HEAVY G OODS VEHICLES WILL FALL UNDER THE DEFINITION OF COMMERCIAL VEHICLE. 5 ITA NO 5149/M/2007 ITA NO.7430/M/2007 ITA NO.20/M/2009. 7.2 HOWEVER, THE ASSESSING OFFICER WAS NOT SATISFI ED WITH THE EXPLANATION GIVEN BY THE ASSESSEE. RELYING ON THE DECISION OF T HE HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS BAJRANG ENTERPRISES REPORTE D IN 258 ITR 448 WHEREIN IT HAS BEEN HELD THAT DUMPER AND TRIPPER ARE NOT VEHICLES BUT PLANT & MACHINERY, HE RESTRICTED THE DEPRECIATION ON DUMPER TO 25%. THUS , HE DISALLOWED THE EXCESS DEPRECIATION OF RS. 1,62,15,170/-. 8 IN APPEAL, THE CIT(A) UPHELD THE ACTION OF THE AS SESSING OFFICER. AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASSESSEE IS IN A PPEAL HERE BEFORE US. 9 THE LD COUNSEL FOR THE ASSESSEE, AT THE OUTSET, R EFERRING TO THE ORDER OF THE TRIBUNAL IN ASSESEES OWN CASE FOR ASSESSMENT YEAR 2002-03 VIDE ITA NO. 3221/MUM/26 ORDER DATED 28.1.2008 SUBMITTED THAT IN THE 263 PROCEEDINGS, THE TRIBUNAL HAS UPHELD THE ORDER OF THE ASSESSING OFFI CER ON THIS ISSUE AND SET ASIDE THE ORDER PASSED BY THE CIT U/S 263 OF THE ACT. IN THE SAID DECISION, THE TRIBUNAL HAS GIVEN A CATEGORICAL FINDING THAT DUMPERS UTI LISED BY THE ASSESS ARE REGISTERED UNDER THE MOTOR VEHICLES ACT AS HEAVY GO DS VEHICLES/MEDIUM GOODS VEHICLE AND, THEREFORE, THEY FALL UNDER THE DEFINIT ION OF COMMERCIAL VEHICLE AS PROVIDED IN THE DEPRECATION TABLE GIVEN IN APPENDIX . ACCORDINGLY, THE DEPRECIATION ON THE SAME IS ALLOWABLE @ 50%/25% FO R THE RELEVANT ASSESSMENT YEAR AS PER THE PERIOD OF HOLDING. 9.1 REFERRING TO THE DECISION OF THE HONBLE MADRAS HIGH COURT IN THE CASE OF BAJRANG ENTERPRISES (SUPRA), HE SUBMITTED THE ISSU E BEFORE THE HIGH COURT WAS INVESTMENT ALLOWANCE U/S 32A IN RESPECT OF DUMPERS USED IN THE BUSINESS OF MINING OPERATION. HOWEVER, THE FACTS IN THE INSTAN T CASE ARE DIFFERENT; THEREFORE, 6 ITA NO 5149/M/2007 ITA NO.7430/M/2007 ITA NO.20/M/2009. IN VIEW OF THE DECISION OF THE TRIBUNAL IN ASSESSE S OWN CASE, THE ASSESSEE IS ENTITLED TO DEPRECIATION APPLICABLE TO COMMERCIAL V EHICLE. 9.2 THE LD DR, ON THE OTHER HAND, SUPPORTED THE ORD ER OF THE CIT(A). 10 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS MADE BY BOTH THE SIDES. IN OUR OPINION AND IN VIEW OF THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE, THE ASSESSEE, IS ENTITLED TO DEPRECIATION APPLICABLE TO COMMERCIAL VEHICLES ON DUMPERS. THE DECISION RELIED ON BY THE REVENUE IN THE CASE OF BAJRANG ENTERPRISES IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE SINCE IN THAT CASE THE ISSUE WAS THE CLAIM OF INVESTMENT ALLOWANCE U /S 32A IN RESPECT OF DUMPERS USED IN THE BUSINESS OF MINING OPERATIONS. HERE, T HE DUMPERS ARE NOT USED FOR MINING BUSINESS AND THERE IS NO CLAIM OF INVESTMENT ALLOWANCE. ACCORDINGLY, THE ORDER OF THE CIT(A) ON THIS ISSUE IS SET ASIDE AND THE ASSESSING OFFICER IS DIRECTED TO ALLOW DEPRECIATION ON DUMPERS AT THE RATE APPLIC ABLE TO NEW COMMERCIAL VEHICLES AS CLAIMED BY THE ASSESSEE. THE GROUND RAI SED BY THE ASSESSEE IS ACCORDINGLY ALLOWED. 11 GROUND OF APPEAL NO.4 BY THE ASSESSEE READS AS U NDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD CIT(A) ERRED IN UPHOLDING THE DISALLOWANCE OF PENALTY OF RS. 47,235 /-. 12 AT THE TIME OF HEARING, THE LD COUNSEL FOR THE A SSESSEE DID NOT PRESS THIS GROUND DUE TO SMALLNESS OF THE AMOUNT. THE LD DR H AS NO OBJECTION FOR THE SAME. ACCORDINGLY, THIS GROUND OF THE ASSESSEE IS DISMISSED AS NOT PRESSED. 7 ITA NO 5149/M/2007 ITA NO.7430/M/2007 ITA NO.20/M/2009. 13 GROUND OF APPEAL NO.5 BY THE ASSESSEE READS AS U NDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD CIT(A) ERRED IN UPHOLDING THE DECISION OF THE ASSESSING OFFICER TO DISMISS THE CLAIM OF THE APPELLANT FOR DEDUCTION OF RS. 2791.44 LACS U/S 80I A(4)(I) OF THE ACT. 14 THE LD COUNSEL FOR THE ASSESSEE, AT THE OUTSET S UBMITTED THAT DUE TO RETROSPECTIVE AMENDMENT OF THE ACT, CONTRACTORS ARE NOT ELIGIBLE FOR DEDUCTION U/S 80IA OF THE ACT; THEREFORE, THIS GROUND IS AGAI NST THE ASSESSEE. 15 IN VIEW OF THE ABOVE SUBMISSION OF THE LD COUNSE L FOR THE ASSESSEE, THIS GROUND BY THE ASSESSEE IS DISMISSED. 16 GROUNDS OF APPEAL NO.6 BEING GENERAL IN NATURE I S DISMISSED. 17 THE ASSESSEE HAS ALSO TAKEN ADDITIONAL GROUND WH ICH IS AS UNDER: THE APPELLANT PRAYS THAT, IN THE EVENT OF ITS CLAI M FOR THE ALLOWANCE OF EXPENDITURE OF RS 93,00,907/- BEING DISALLOWED IN T HE ASSESSMENT YEAR 2004-05, THE SAME SHOULD BE ALLOWED IN THE ASSESSME NT YEAR 2003-04. 18 THE LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT D URING THE ASSESSMENT YEAR 2004-05 AN AMOUNT OF RS. 93,00,907/- HAS BEEN DISALLOWED BY THE ASSESSING OFFICER ON THE GROUND THAT THEY WERE PRIOR PERIOD EXPENDITURE. SINCE THE EXPENDITURE BY THE ASSESSEE HAS TO BE ALLOWED AT SO ME STAGE; THEREFORE, IF THE SAME IS DISALLOWED IN ASSESSMENT YEAR 2004-05 THEN THE SAME SHOULD BE ALLOWED IN THE YEAR OF EXPENDITURE I.E. ASSESSMENT YEAR 200 3-04. SINCE NO FRESH FACTS ARE 8 ITA NO 5149/M/2007 ITA NO.7430/M/2007 ITA NO.20/M/2009. NECESSARY FOR THIS ISSUE, THE SAME BEING PURELY A L EGAL GROUND, THE ADDITIONAL GROUND; THEREFORE, SHOULD BE ADMITTED IN VIEW OF T HE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF NTPC REPORTED IN 229 I TR 383 AND IN THE CASE OF JUTE CORPORATION REPORTED IN 187 ITR 688. 19 AFTER HEARING BOTH THE SIDES, THE ADDITIONAL GRO UND RAISED BY ASSESSEE IS ADMITTED. BOTH THE PARTIES FAIRLY AGREED THAT THE ASSESSEE SHOULD BE ALLOWED THE EXPENDITURE IN THE YEAR IN WHICH THE SAME IS INCURR ED. THEREFORE, WE RESTORE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER WIT H THE DIRECTION TO ALLOW THE PRIOR PERIOD EXPENDITURE DISALLOWED IN THE ASSESSMENT YE AR 2004-05 AS AN ALLOWABLE EXPENDITURE IN THE ASSESSMENT YEAR 2003-04 AFTER DU E VERIFICATION. THE ADDITIONAL GROUND RAISED BY THE ASSESSEE IS ACCORDI NGLY ALLOWED. ITA NO. 7430/MUM/2007 (ASSESSMENT YEAR 2004 ITA NO. 7430/MUM/2007 (ASSESSMENT YEAR 2004 ITA NO. 7430/MUM/2007 (ASSESSMENT YEAR 2004 ITA NO. 7430/MUM/2007 (ASSESSMENT YEAR 2004- -- -05) 05) 05) 05) 20 GROUND OF APPEAL NO.1 BY THE ASSESSEE READS AS U NDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD CIT(A) ERRED IN UPHOLDING THE ADDITION OF RS. 16,72,415/- MADE BY T HE ASSESSING OFFICER UNDER SEC. 2(24(X) R.W. EXPLANATION TO SEC. 36(1)(V A) OF THE I T ACT. 21 AFTER HEARING BOTH THE SIDES, WE FIND THIS GROUN D BY THE ASSESSEE IS IDENTICAL TO THE GROUNDS OF APPEAL NO.1 IN ITA NO.5 149/MUM/2007. WE HAVE ALREADY DECIDED THIS ISSUE AND THE GROUND RAISED BY THE ASSESSEE HAS BEEN ALLOWED. FOLLOWING THE SAME RATIO, THIS GROUND IS ALSO ALLOWED. 22 GROUNDS OF APPEAL NO.2 READS AS UNDER: 9 ITA NO 5149/M/2007 ITA NO.7430/M/2007 ITA NO.20/M/2009. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) ERRED IN UPHOLDING THE DECISION OF THE AO OF DISALLOWING PRI OR PERIOD EXPENSES OF RS. 93,00,907/- 23 AFTER HEARING BOTH THE PARTIES, WE FIND THE PRIO R PERIOD EXPENDITURE OF RS. 93,00,907/- HAS BEEN DISALLOWED IN ASSESSMENT Y EAR 2004-05 AND THE SAME HAS BEEN DIRECTED TO BE ALLOWED IN ASSESSMENT YEAR 2003-04 AS PER THE ADDITIONAL GROUND RAISED IN ITA NO.5149/MUM/2007. A CCORDINGLY, THIS GROUND IS DISMISSED. 24 GROUND OF APPEAL NO.3 BY THE ASSESSEE READS AS U NDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD CIT(A) ERRED IN UPHOLDING THE DECISION OF THE ASSESSING OFFICER OF ALLOWING DEPRECIATION ON DUMPERS @ 25% ONLY, AS AGAINST 50% CLAIMED BY THE A PPELLANT, BEING NEW COMMERCIAL VEHICLES AS PER CLAUSE III(3)(VI) OF OLD APPENDIX R.W.R OF THE I T RULES 1962.. 25 AFTER HEARING BOTH THE SIDES, WE FIND THIS GROUN D IS IDENTICAL TO THE GROUNDS OF APPEAL NO.3 IN ITA NO.5149/MUM/2007. WE HAVE AL READY DECIDED THIS ISSUE AND ALLOWED THE GROUND RAISED BY THE ASSESSEE. FOL LOWING THE SAME RATIO, THIS GROUND IS ALSO ALLOWED. 26 GROUNDS OF APPEAL NO. 4 BY THE ASSESSEE READS AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD CIT(A) ERRED IN UPHOLDING THE DECISION OF THE ASSESSING OFFICER TO DISMISS THE CLAIM OF THE APPELLANT FOR DEDUCTION OF RS. 4823.97 LACS U/S 80I A(4)(I) OF THE ACT. 10 ITA NO 5149/M/2007 ITA NO.7430/M/2007 ITA NO.20/M/2009. 27 AFTER HEARING BOTH THE SIDES, WE FIND THIS GROUN D IS IDENTICAL TO THE GROUNDS OF APPEAL NO.5 IN ITA NO.5149/MUM/2007. WE HAVE AL READY DECIDED THIS ISSUE AND DISMISSED THE GROUND RAISED BY THE ASSESSEE. F OLLOWING THE SAME RATIO, THIS GROUND IS ALSO DISMISSED. 28 GROUNDS OF APPEAL NO.5 BEING GENERAL IN NATURE IS DISMISSED. 29 THE ASSESSEE HAS ALSO TAKEN ADDITIONAL GROUND WH ICH IS AS UNDER: THE APPELLANT PRAYS THAT, IN THE EVENT OF ITS CLAI M FOR THE ALLOWANCE OF EXPENDITURE OF RS 57,86,270/- BEING DISALLOWED IN T HE ASSESSMENT YEAR 2005-06, THE SAME SHOULD BE ALLOWED IN THE ASSESSME NT YEAR 2004-05. 30 AFTER HEARING BOTH THE SIDES, WE FIND THE ABOVE ADDITIONAL GROUND RAISED BY THE ASSESSEE IS IDENTICAL TO THE ADDITIONAL GROUND RAISED IN ITA NO.5149/MUM/2007. WE HAVE ALREADY DECIDED THIS ISSU E AND THE ADDITIONAL GROUND RAISED BY THE ASSESSEE HAS BEEN ALLOWED. FOL LOWING THE SAME RATIO, THIS ADDITIONAL GROUND BY THE ASSESSEE IS ALLOWED. ITA NO. ITA NO. ITA NO. ITA NO. 20 2020 20/MUM/200 /MUM/200 /MUM/200 /MUM/2009 99 9 (ASSESS (ASSESS (ASSESS (ASSESSMENT YEAR 200 MENT YEAR 200 MENT YEAR 200 MENT YEAR 2005 55 5- -- -06 0606 06) )) ) 31 GROUND OF APPEAL NO.1 BY THE ASSESSEE READS AS U NDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD CIT(A) ERRED IN UPHOLDING THE ADDITION OF RS.21,42,610/- MADE BY TH E ASSESSING OFFICER UNDER SEC. 2(24(X) R.W. EXPLANATION TO SEC. 36(1)(V A) OF THE I T ACT. 32 AFTER HEARING BOTH THE SIDES, WE FIND THIS GROUN D BY THE ASSESSEE IS IDENTICAL TO THE GROUNDS OF APPEAL NO.1 IN ITA NO.5 149/MUM/2007. WE HAVE ALREADY DECIDED THIS ISSUE AND THE GROUND RAISED B Y THE ASSESSEE HAS BEEN ALLOWED. FOLLOWING THE SAME RATIO, THIS GROUND IS ALSO ALLOWED. 11 ITA NO 5149/M/2007 ITA NO.7430/M/2007 ITA NO.20/M/2009. 33 GROUNDS OF APPEAL NO.2 READS AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) ERRED IN UPHOLDING THE DECISION OF THE AO OF DISALLOWING PRI OR PERIOD EXPENSES OF RS. 57,86,270/- 34 AFTER HEARING BOTH THE PARTIES, WE FIND THE PRIO R PERIOD EXPENDITURE OF RS. 57,86,270/- HAS BEEN ALLOWED IN ASSESSMENT YEAR 2004-05 AS PER ADDITIONAL GROUND RAISED BY THE ASSESSEE; THEREFORE, THIS GROU ND IS DISMISSED. 35 GROUNDS OF APPEAL NO.3 BEING GENERAL IN NATURE I S DISMISSED. 36 THE ASSESSEE HAS ALSO TAKEN ADDITIONAL GROUND WH ICH IS AS UNDER: THE APPELLANT PRAYS THAT, IN THE EVENT OF ITS CLAI M FOR THE ALLOWANCE OF EXPENDITURE OF RS 52,34,125/- BEING DISALLOWED IN T HE ASSESSMENT YEAR 2006-07, THE SAME SHOULD BE ALLOWED IN THE ASSESSME NT YEAR 2005-06. 37 AFTER HEARING BOTH THE SIDES, WE FIND THE ABOVE ADDITIONAL GROUND RAISED BY THE ASSESSEE IS IDENTICAL TO THE ADDITIONAL GROUND RAISED IN ITA NO.5149/MUM/2007. WE HAVE ALREADY DECIDED THIS ISSU E AND THE ADDITIONAL GROUND RAISED BY THE ASSESSEE HAS BEEN ALLOWED. FOL LOWING THE SAME RATIO, THIS ADDITIONAL GROUND BY THE ASSESSEE IS ALLOWED. 38 IN THE RESULT, ALL THE THREE APPEALS BY THE ASSE SSEE ARE PARTLY ALLOWED. ORDER PRONOUNCED ON THE 27 TH , DAY OF APRIL 2011. SD/- SD/- ( (( ( D MANMOHAN D MANMOHAN D MANMOHAN D MANMOHAN ) )) ) VICE PRESIDENT ( (( ( R K PANDA R K PANDA R K PANDA R K PANDA ) )) ) ACCOUNTANT MEMBER PLACE: MUMBAI : DATED: 27 TH , APRIL 2011 RAJ* 12 ITA NO 5149/M/2007 ITA NO.7430/M/2007 ITA NO.20/M/2009. COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI