Appeal Details
Counselvise Citation
[2014] 140 COUNSELVISE.COM (IT) 77529 (ITAT-CUTTACK)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
4 month(s) 12 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
02-05-2014
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
DB
Assessment Year
2007-2008
Appeal Filed On
20-12-2013
Judgement Text
, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH, CUTTACK . . , . . , BEFORE SHRI P.K.BANSAL , AM & SHRI D.T.GARASIA , JM ./ ITA NO. 56 9 /C TK/201 3 ( / ASSESSMENT YEAR :200 7 - 0 8 ) ITO, WARD - 1, PARADEEP VS. M/S PARADEEP EARTH MOVERS, M - II - 99, MADHUBAN, PARADEEP ./ ./ PAN/GIR NO. : A AIFP 8165 F ( / APPELLANT ) .. ( / RESPONDENT ) AND ./ CO NO. 12 /CTK/201 4 (ARISING OUT OF ITA NO. 5 69 /CTK/2013) ( / ASSESSMENT YEAR :200 7 - 0 8 ) M/S PARADEEP EARTH MOVERS, M - II - 99, MADHUBAN, PARADEEP VS. ITO, WARD - 1, PARADEEP ./ ./ PAN/GIR NO. : A AIFP 8165 F ( / AP PELLANT ) .. ( / RESPONDENT ) /REVENUE BY : SHRI S.C.MOHANTY /ASSESSEE BY : SHRI S.K.JENA / DATE OF HEARING : 1 ST MAY , 2014 / DATE OF PRONOUNCEMENT : 02/05/ 2014 / O R D E R PER BENCH : THIS APPEAL AS WELL AS THE CROSS OBJECTION HAS BEEN FILED AGAINST THE ORDER OF THE CIT(A) DATED 16 - 9 - 2013 . 2 . THE ONLY ISSUE IN THE APPEAL FILED BY THE REVENUE RELATES TO THE CLAIM OF DEPRECIATION ON EXCAVATOR, PAY LOAD ER AND BACK HOE LOADER MACHINE @30% AS AGAINST 15% ALLOWED BY THE AO. THE CROSS OBJECTION FILED BY THE ASSESSEE IS SUPPORTIVE TO THE ORDER OF THE CIT(A). 2 ITA NO. 5 6 9 /CTK /201 3 CO NO. 12/CTK/2014 3 . BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A PARTNERSHIP FIRM, DERIVES INCOME FROM CONTRACT WORK AND HIRING OUT OF ITS EXCAVATORS, PAY LOADERS AND BACK HOES TO DIFFERENT PARTIES. THE ASSESSEE FILED ITS INCOME FOR IMPUGNED ASSESSMENT YEAR . THE ASSESSEE CLAIMED DEPRECIATION @15% AS THESE MACHINERIES WERE NOT HIRED OUT FOR ENTITLING THE ASSESSEE T O CLAIM DEPRECIATION @30% AND THESE MACHINES HAVE BEEN USED BY THE ASSESSEE IN HIS OWN BUSINESS. THE ASSESSEE WENT BEFORE THE CIT(A). THE CIT(A) ALLOWED THE APPEAL OF THE ASSESSEE FOLLOWING THE DECISION OF THIS TRIBUNAL IN THE CASE OF ASSESSEE FOR THE ASSE SSMENT YEAR 2008 - 09. 4. WE HEARD THE RIVAL SUBMISSIONS AND CONSIDERED THE SAME CAREFULLY. WE NOTED THAT T HIS ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THIS TRIBUNAL IN THE CASE OF THE ASSESSEE PASSED IN ITA NO. 386/CTK/2012, VIDE ORDER DATED 14 - 9 - 2012 FOR THE ASSESSMENT YEAR 2008 - 09 , IN WHICH THIS TRIBUNAL HAS HELD AS UNDER : - 6. WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. ON CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, W E ARE INCLINED TO FIND THE ORDER OF THE LEARNED CIT(A) JUSTIFIED INSOFAR AS APART FROM THE CASE - LAWS CITED ON FACTS AS HAVE BEEN BROUGHT ON RECORD BY THE ASSESSING OFFICER HIMSELF THAT THESE MACHINERIES WHETHER WERE REGISTERED AS MOTOR VEHICLES WITH THE RO AD TRANSPORT AUTHORITY OR NOT WERE MACHINERIES USED ONLY FOR THE PURPOSE OF BUSINESS OF HIRING OUT. IT WAS NOT THE CASE OF THE ASSESSING OFFICER TO HOLD THAT THE PLANT AND MACHINERY SHOULD BE FASTENED ON THE LAND TO MAKE THEM IMMOBILE IN ORDER TO GET REGIS TERED WITH THE ROAD TRANSPORT AUTHORITY. THE LEARNED COUNSEL FOR THE ASSESSEE ALSO SUBMITTED THAT THE ASSESSEE HAS PAID ROAD TAX ON THESE MACHINERIES CLINCHES THE ISSUE THAT THESE MACHINE ARE MOBILE AND COULD BE USED FOR BUSINESS OTHER THAN THE BUSINESS OF THE ASSESSEE AS WELL. THE PAYMENTS BY THE HIRERS ARE SUBJECT TO DEDUCTION OF TAX AT SOURCE CRYSTALLIZED THE ISSUE THAT THESE MACHINERIES ARE ENTITLED 3 ITA NO. 5 6 9 /CTK /201 3 CO NO. 12/CTK/2014 FOR DEPRECIATION @30% AS WERE HIRED OUT BUSINESS AS RIGHTLY CLAIMED BY THE ASSESSEE AND UPHELD BY THE LEA RNED CIT(A). IN VIEW OF THE MATTER, WE UPHOLD THE IMPUGNED ORDER OF THE LEARNED CIT(A) AND DISMISS THE APPEAL OF THE REVENUE. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. 5. RESPECTFULLY FOLLOWING THE DECISION OF THE TRIBUNAL, WE DISMISS THE APPEAL OF THE REVENUE. 6. AS WE HAVE ALREADY DISMISSED THE APPEAL OF THE REVENUE, THEREFORE, THE CROSS OBJECTION FILED BY THE ASSESSEE HAS BECOME INFRUCTUOUS. 7 . IN THE RESULT, APPEAL FILED BY THE REVENUE AS WELL AS CROSS OBJECTION FILED BY THE ASSESS EE ARE HEREBY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 02/05 / 201 4 . 02/05 /2014 SD/ - SD/ - ( . . ) ( D.T.GARASIA ) ( . . ) ( P.K.BANSAL ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER CUTTACK ; DATED 02/05 /2014 . . /PKM , . / PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) , / ITAT, C UTTACK 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) , CUTTACK 4. / CIT , CUTTACK 5. , , / DR, ITAT, CUTTACK 6. / GUARD FILE. //TRUE COPY//
Mehul