ACIT, Kota V. MODERN MOTORS, Kota

ITA 719/JPR/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5412 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 5 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 30-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PURUSHOTTAM KASHYAP CIT DHK
• Keywords: Depreciation
• Section: 43B

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH FOE FLAG ;KN O] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI VIKRAM SINGH YA DAV, AM VK;DJ VIHY LA-@ ITA NO. 719/JP/13 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2010-11 THE ACIT, CIRCLE-1, KOTA CUKE VS. M/S MODERN MOTORS, PLOT NO. 162, JHALAWAR ROAD, KOTA LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAJFM 9003 D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : MAHENDRA GARGIEYA (C.A.) JKTLO DH VKSJ LS@ REVENUE BY : PURUSHOTTAM KASHYAP (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 09.02.2016 ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 29/02/2016. VKNS'K@ ORDER PER SHRI VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD CIT(A), KOTA DATED 26.06.2013 WHEREIN THE REVENUE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL. (1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DELETING THE DISALLOWANCE OF PROVISION OF ENTRY TAX LIABILITY OF RS. 40,03,853/- WITHOUT APPRECIATING THE FACTS CONTAINED IN THE CAS E OF CIT VS. ASSAM ROLLER FLOUR MILLS (226 ITR876)(RAJ.) AND CIT VS. PADMAVAT I RAJE COTTON MILL LTD. (203 ITR 375) (CAL.) (2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DELETING THE DISALLOWANCE OF REMUNERATION OF RS. 43 ,33,245/- TO THE ITA NO. 719/JP/13 ACIT CIRCLE-1, KOTA VS. M/S MODERN MOTORS, KOTA 2 PARTNERS, WITHOUT APPRECIATING THE CONTENTS OF CBDT , NEW DELHIS CIRCULAR NO. 739 DATED 25.03.1996. (3) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DELETING THE DISALLOWANCE OF DEPRECIATION OF RS. 31 ,800/- IN THE ABSENCE OF VALID DOCUMENTARY EVIDENCE IN SUPPORT OF PURCHASE O F TRUCK DURING THE YEAR. 2. REGARDING GROUND NO.1, THE REVENUE HAS CHALLENGED THE DELETION OF THE DISALLOWANCES OF PROVISION OF ENTRY TAX LIABILITY U /S 43B OF RS. 40,03,853/-. 2.1 THE FACTS IN BRIEF ARE THAT THE ASSESSEE HAS MA DE PROVISION OF ENTRY TAX FOR RS. 40,03,853/- AS ON 31.03.12010 AND THE ASSESSEE WAS ASKED TO FURNISH PROOF OF PAYMENT BY THE AO. THE ASSESSEE SUBMITTED THAT IN VIEW OF THE ONGOING LITIGATION BEFORE THE SUPREME COURT, AS A MATTER OF PRECAUTION , IT HAS CREATED A LIABILITY BEING THE PROVISION FOR ENTRY TAX ON ONE HAND AND AT THE SAME TIME TO NULLIFY THE EFFECT OF SUCH A PROVISION, IT HAS ALSO PASSED ANOT HER ENTRY ON THE ASSET SIDE AS ADVANCE AGAINST ENTRY TAX. HOWEVER, THE ASSESSE E NEVER CHARGED/COLLECTED ANY ENTRY TAX FROM THE CUSTOMERS NOR THE SAME WAS CLAIM ED AT ANY MOMENT OF TIME AS AN EXPENDITURE IN THE PROFIT AND LOSS ACCOUNT . IF AT A LATER POINT OF TIME THE COURT WOULD UPHELD THE VALIDITY OF THE ENTRY TAX, THE LIABILITY WILL BE DEBITED TO THE P&L ACCOUNT. THE AO HOWEVER REFERRED TO THE PR OVISIONS OF THE SEC.43B AND ALSO TO THE LEDGER ACCOUNTS OF THE PROVISIONS FOR E NTRY TAX AND OF ADVANCE AGAINST ENTRY TAX FOR A.Y. 2008-09, 2009-10 AND 2010-11. T HE AO HELD THAT THE CONTENTION OF THE ASSESSEE THAT IT DID NOT CHARGE ENTRY TAX FR OM THE CUSTOMERS NOR CLAIMED ANY EXPENDITURE TO THE P&L ACCOUNT WAS CONTRARY TO THE ENTRIES MADE IN THE ACCOUNTS IN AS MUCH AS THE ASSESSEE HAS SHOWN ADVAN CE AGAINST ENTRY TAX ON THE ASSET SIDE OF THE BALANCE SHEET IN ALL THE THREE YE ARS AND THE ASSESSEE WAS MAINTAINING THE BOOKS OF ACCOUNTS FOLLOWING MERCANT ILE SYSTEM OF ACCOUNTING. HENCE IN HIS VIEW ENTRY TAX LIABILITY WAS NOT ALLOW ABLE IN THIS YEAR AND INVOKING SECTION 43B, HE MADE DISALLOWANCE OF RS.40,03,853/- TOWARDS ENTRY TAX LIABILITY. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE LD CIT(A) WHO DELETED THE ADDITION. HENCE THE REVENUE IS IN APPE AL BEFORE US. 2.2 FIRSTLY, THE FINDINGS OF LD. CIT(A) IN HIS ORD ER DATED 26.06.2013 ARE AS UNDER: ITA NO. 719/JP/13 ACIT CIRCLE-1, KOTA VS. M/S MODERN MOTORS, KOTA 3 I GAVE GONE THROUGH ASSESSING OFFICERS FINDINGS AND ASSESSEES SUBMISSIONS. IT WAS SEEN THAT ASSESSEE CREATED THE PROVISION BY DE BITING ADVANCE AGAINST ENTRY TAX ACCOUNT. THE SAME WAS NOT DEBITED TO P&L ACCO UNT BUT SHOWN IN THE BALANCE SHEET. THE ASSESSING OFFICER CAN DISALLOW ANY EXPE NDITURE ONLY WHEN IT IS CLAIMED BY ASSESSEE. IN THE CURRENT CASE THE SAME WAS NOT CLAIMED. IT IS ALSO NOT THE CASE THAT ASSESSEE COLLECTED THE SAME FROM CLIENTS BUT N OT CREDITED THE SAME TO P&L ACCOUNT. CONSIDERING THE ABOVE, I AM OF THE FIRM V IEW THAT THE ADDITION, WAS NOT NECESSARY. 2.3 THE LD AR SUBMITTED THAT THERE CANNOT BE ANY DI SPUTE THAT S. 43B CAN BE INVOKED ONLY WHEN THE ASSESSEE HAS CLAIMED ANY DED UCTION WHICH THOUGH OTHERWISE ALLOWABLE UNDER THE ACT BUT NO PAYMENT IN ADDITION THERETO HAS BEEN MADE WITHIN THE PRESCRIBED TIME LIMIT. ALSO WHERE T HE ASSESSEE COLLECTS ANY TAX, CESS OR DUTY BUT DOES NOT PAY/DEPOSIT, THEN ALSO, D ESPITE ABSENCE OF ENTRIES IN THE ACCOUNTS, DISALLOWANCE U/S 43B CAN BE MADE. HOWEVER, IN THE PRESENT CASE THE ASSESSEE NEVER CLA IMED ANY DEDUCTION AS THE SUBJECTED AMOUNT WAS NEVER DEBITED TO THE P&L A/C I N ANY OF THE THREE YEARS (KINDLY REFER P&L A/C AT PB 23). THE AO COMPLETELY FAILED TO PROVE TO THE CONTRARY. ALSO IT IS NOT CASE OF THE AO THAT THE ASSESSEE THO UGH COLLECTED ENTRY TAX FROM THE CUSTOMERS YET DID NOT DEPOSIT THE SAME. IF ONLY AP PEARS TO MISCONCEPTION ON THE PART OF THE AO AS REGARDS THE ACCOUNTING TREATMENT. THE ADMITTED FACTS AVAILABLE ON RECORD AND APPARENT FROM THE AUDITED BALANCE SHE ET FOR THIS YEAR AS ALSO IN THE EARLIER YEARS ARE THAT ON THE LIABILITY SIDE THERE IS AN ACCOUNT BEING THE PROVISION FOR ENTRY TAX AND AT THE SAME TIME, ON THE ASSET S IDE ALSO THERE IS AN ACCOUNT NAMED ADVANCE AGAINST ENTRY TAX OF EQUAL AMOUNT, WHICH HAS BEEN REPRODUCED BY THE AO AT PAGE 4-6 AT ASSESSMENT ORDER. THUS, I T IS EVIDENTLY CLEAR THAT THESE ARE MERE ACCOUNTING ENTRIES, NEITHER THERE WAS ANY COLLECTION FROM THE CUSTOMERS NOR THE ASSESSEE HAS CHARGED ANY EXPENDITURE TO THE P&L A/C THEREFORE, PROVISIONS OF S. 43B COULD NOT HAVE BEEN INVOKED EV EN REMOTELY. THERE APART, (ALTERNATIVELY) THE CORRECT AMOUNT OF PROVISION FOR ENTRY TAX THIS YEAR WAS RS. 20,56,504/- ONLY WHEREAS THE AO MADE THE DI SALLOWANCE OF RS. 40,03,853/- FOR THE REASON THAT HE HAS ALSO CONSIDE RED THE OPENING BALANCE OF RS. ITA NO. 719/JP/13 ACIT CIRCLE-1, KOTA VS. M/S MODERN MOTORS, KOTA 4 19,47,349/-. THE CONSIDERATION OF THE OPENING BALA NCE FOR THE PURPOSES OF MAKING DISALLOWANCE U/S 43B IS OTHERWISE CONTRARY T O THE LAW IN AS MUCH AS THE SAME DID NOT RELATE TO THE CURRENT YEAR. AS THE FACTS CLEARLY SUGGEST THAT IN THE PAST TWO Y EARS ALSO I.E. A.Y. 2008-09 AND 2009-10 SIMILAR FACTS WERE AVAILABLE YET HOWEVER, N O SUCH DISALLOWANCE IS REPORTED TO HAVE BEEN MADE BY THE DEPTT. AND THEREF ORE THESE APPEARS NO SPECIAL REASON AS TO WHY THE AO SHOULD HAVE TAKEN A NEW STA ND IN THIS YEAR. IN SUPPORT OF ITS CONTENTION, IT RELIED UPON DECISION OF INDIAN C OTTON LTD. VS. IAC (1993) 200 ITR 759 (GAU) AND CIT VS. S.B. FOUNDRY (1990)185 ITR 55 5 (ALL). 2.4 THE LD DR WAS HEARD WHO HAS RELIED UPON THE ORD ER OF AO. 2.5 WE HAVE HEARD THE RIVAL CONTENTIONS AND PURSUED THE MATERIAL ON RECORD. FIRSTLY, IT IS NOT THE CASE OF THE REVENUE THAT THE APPELLANT HAS COLLECTED ENTRY TAX FROM ITS CUSTOMERS AND TAX SO COLLECTED HAS NOT BEE N DEPOSITED WITH THE ENTRY TAX AUTHORITIES. THE LIMITED ISSUE RELATES TO ACCOUNTI NG ENTRY TOWARDS LIABILITY TOWARDS THE ENTRY TAX PASSED BY THE APPELLANT IN ITS BOOKS OF ACCOUNTS AND WHETHER PROVISIONS OF SECTION 43B OF THE ACT ARE ATTRACTED. THE ASSESSEE HAS SUBMITTED THAT IN VIEW OF THE ONGOING LITIGATION BEFORE THE S UPREME COURT, AS A MATTER OF PRECAUTION, IT HAS CREATED A LIABILITY BEING THE P ROVISION FOR ENTRY TAX ON ONE HAND AND AT THE SAME TIME TO NULLIFY THE EFFECT OF SUCH A PROVISION, IT HAS ALSO PASSED ANOTHER ENTRY ON THE ASSET SIDE AS ADVANCE AGAINST ENTRY TAX. THUS, FOLLOWING THE DOUBLE ENTRY SYSTEM OF ACCOUNTING, TH E APPELLANT HAS CREATED A LIABILITY BY WAY OF A PROVISION TOWARDS THE ENTRY T AX AND A CORRESPONDING ASSET IN ITS BALANCE SHEET AND THERE IS NO CHARGE/TRANSFER O F PROVISION TO THE PROFIT/LOSS ACCOUNT. THE APPELLANT HAS BEEN CONSISTENTLY PASSI NG THESE ENTRIES FOR EARLIER YEARS AS WELL I.E, A.Y. 2008-09, 2009-10. GIVEN TH AT THERE IS NO CLAIM OF PROVISION OF ENTRY TAX IN THE PROFIT/LOSS ACCOUNT AND HENCE I N ABSENCE OF A CLAIM OF AN EXPENSE, THE QUESTION OF SECTION 43B GETTING ATTRAC TED DOESNT ARISE AT FIRST PLACE. SECTION 43B POSTULATES A SITUATION WHERE THE EXPENS E OTHERWISE ALLOWABLE UNDER THE ACT IS SUBJECT TO DISALLOWANCE ON NON-FULFILLME NT OF CONDITIONS STIPULATED THEREIN. UNLIKE CLAIM OF DEPRECIATION WHERE THE STA TUE STIPULATES A MANDATORY ALLOWANCE OF DEPRECIATION EVEN IF NOT CLAIMED, THER E IS NO SUCH STATUTORY ITA NO. 719/JP/13 ACIT CIRCLE-1, KOTA VS. M/S MODERN MOTORS, KOTA 5 PROVISIONS IN RESPECT OF CLAIM OF STATUTORY LIABILI TY WHICH EVEN THOUGH NOT CLAIMED BUT WOULD STILL BE DEEMED TO BE ALLOWED FOR TAX PUR POSES. WE HAVE ALSO GONE THROUGH THE ORDER OF CIT VS. ASSAM ROLLER FLOUR MILLS (226 ITR876)(RAJ.) AND CIT VS. PADMAVATI RAJE COTTON MILL LTD. (203 ITR 375) (CAL. ) WHICH DOESNT ADVANCE THE CASE OF THE REVENUE. IN LIGHT OF ABOVE, THERE IS N O NEED TO INTERFERE WITH THE FINDING OF LD CIT(A) WHICH IS HEREBY CONFIRMED. HE NCE, GROUND NO 1 OF REVENUES APPEAL IS DISMISSED. 3. REGARDING GROUND NO 2, THE REVENUE HAS CHALLENG ED THE DELETION OF THE DISALLOWANCE OF REMUNERATION TO PARTNERS OF RS. 43, 33,245/- 3.1 BRIEFLY THE FACTS ARE THAT THE AO NOTED THAT TH E ASSESSEE CLAIMED DEDUCTION OF RS. 43,33,245/- ON ACCOUNT OF REMUNERATION TO TH E PARTNERS. WHEN ASKED AS TO WHY ASSSESSEE DID NOT SPECIFY REMUNERATION TO THE P ARTNERS AS PER THE COPY OF PARTNERSHIP DEED, THE ASSESSEE REFERRED TO CLAUSES 6-9 OF THE PARTNERSHIP DEED EXECUTED ON 09.12.2012 (REFER PAGE 8 OF THE ASSESSM ENT ORDER). THE AO THEREAFTER, REFERRING TO THIS CBDT CIRCULAR NO. 793 DATED 25.03.1996 HELD THAT THE LAST PARA OF THE CIRCULAR IS APPLICABLE IN THIS CAS E. HE REJECTED THE CLAIM HOLDING THAT NEITHER THE AMOUNT OF REMUNERATION PAYABLE TO EACH INDIVIDUAL WORKING PARTNER HAS BEEN SPECIFIED NOR MANNER OF QUANTIFYIN G SUCH REMUNERATION HAS BEEN LAID DOWN IN THE PARTNERSHIP DEED. FINALLY HE DISALLOWED THE ENTIRE REMUNERATION CLAIMED. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE LD. CIT(A) WHO DELETED THE DISALLOWANCE AFTER EXAMINING THE CLAUSE S OF THE PARTNERSHIP DEED AND HOLDING THAT MANNER OF QUANTIFICATION OF THE REMUNE RATION PAYABLE TO THE PARTNERS HAS BEEN PROVIDED IN THE PARTNERSHIP DEED. HENCE THE REVENUE IS IN APPEAL BEFORE US. 3.2 THE LD. AR SUBMITTED THAT AT THE OUTSET, IT IS A CLEAR CASE OF PURPORTED MISREADING OF PARTNERSHIP DEED BY THE AO AND FACTS AVAILABLE ON RECORD. A BARE PERUSAL OF CLAUSE 6 OF THE PARTNERSHIP DEED RIGHTLY APPRECIATED BY LD CIT(A) REVEALS THAT THE MANNER OF QUANTIFYING REMUNERATION TO THE PARTNERS HAS BEEN GIVEN THEREIN WHERE THE REMUNERATION HAS TO BE WORKED OU T BASED ON CERTAIN PERCENTAGE OF THE BOOK PROFIT. THE TOTAL AMOUNT OF THE REMUNERATION SO WORKED ITA NO. 719/JP/13 ACIT CIRCLE-1, KOTA VS. M/S MODERN MOTORS, KOTA 6 OUT THEREAFTER IS TO BE SHARED EQUALLY AMONGST ALL THE THREE PARTNERS. HOWEVER, IN CASE OF LOSS, NO SALARY WOULD BE ALLOWABLE TO THE P ARTNERS. AFTER WORKING OUT THE MANNER LAID DOWN IN CLAUSE 6 THUS, THE REMUNERATION PAYABLE TO EACH INDIVIDUAL WORKING PARTNER I.E. 1/3 RD OF THE TOTAL REMUNERATION WORKED OUT, IS ALSO SHOW N IN THE PARTNERSHIP DEED. FURTHER SUCH REMUNERATION MAY ALSO BE VARIED OR EVEN BE WAIVED LATER ON IF THE PARTNER SO DESIRE. CLAUSE 8 PROVIDES OF CREDITING SUCH REMUNERATION TO THE CAPITAL ACCOUNT OF THE PARTNERS AT THE END OF THE YEAR. IT IS NOT DISPUTE D THAT THE PARTNERS WERE PAID REMUNERATION WHICH WAS LESS THAN THE MAXIMUM AMOUNT PROVIDED UNDER THE ACT. NONE OF THE AUTHORITIES HAVE DOUBTED THE PAYMENT OF REMUNERATION TO PARTNERS. THE PROVISIONS OF S. 40(B) PERMITS THE ALLOWANCE ON LY IF THE CLAIMED REMUNERATION IS FOUND AUTHORIZED BY AND IN ACCORDANCE WITH THE P ARTNERSHIP DEED WHICH CONDITION HAS DULY BEEN FULFILLED IN THE PRESENT CA SE. IN VIEW OF THESE FACTS, THE LAST PARA OF CBDT CIRCULAR NO. 739 DATED 25.03.1996 HAS ALSO BEEN WRONGLY APPLIED BY THE AO. IT WAS FURTHER SUBMITTED THAT THE PARTNERSHIP DEED WAS EXECUTED ON 09.12.2002 AND FIRM CAME INTO EXISTENCE W.E.F. 09.12.2002 I.E. FROM AY. 2003-04 AND SINCE THEN, THE ASSSESSEE HAS BEEN CLAIMING REMUNERATION BASED ON THIS VERY PARTNERSHIP DEED. IN THE PAST AS AND WHEN SUCH CLA IM WAS MADE, WAS DULY ALLOWED BY THE AO. HERE ALSO THERE APPEARS NO SPEC IAL REASON AS TO WHY THE AO SHOULD HAVE TAKEN A CONTRARY VIEW OR READ THE PARTN ERSHIP DEED, THE WAY HE DOES THIS YEAR. IN SUPPORT, HE RELIED UPON THE FOLLOWING CASE LAWS: CIT VS. ANIL HARDWARE STORE 323 ITR 368 (HP) DURGA DASS DEVKI NANDAN VS. ITO (2012) 342 ITR 17 ( HP) ACIT VS. SUMAN CONSTRUCTION (2009) 20 DTR 450 (PUNE TRIB) LD. MOHD. NIZAMUDDIN VS. ACIT (2014) 39 CCH 439 (JP TRIB) CIT(A) VS. SUPREME BUILDERS (2008) 303 ITR 1 (PH). 3.3 THE LD DR IS HEARD WHO HAS RELIED ON THE ORDER OF THE AO. ITA NO. 719/JP/13 ACIT CIRCLE-1, KOTA VS. M/S MODERN MOTORS, KOTA 7 3.4 WE HAVE HEARD THE RIVAL CONTENTIONS AND PURSUED THE MATERIAL ON RECORD. AS APPARENT FROM THE ASSESSMENT ORDER, CLAUSE 6 OF THE PARTNERSHIP DEED PROVIDES THE MANNER OF QUANTIFYING THE REMUNERATION WHICH IS PAYABLE TO THE PARTNERS. THE REMUNERATION HAS TO BE WORKED OUT BAS ED ON CERTAIN PERCENTAGE OF THE BOOK PROFIT WHICH WILL BE DETERMINED AT THE END OF THE YEAR. IT IS ALSO PROVIDED THAT THE TOTAL AMOUNT OF THE REMUNERATION SO WORKED OUT IS TO BE SHARED EQUALLY AMONGST ALL THE THREE PARTNERS AND IN CASE OF LOSS, NO SALARY WOULD BE ALLOWABLE TO THE PARTNERS. THE CBDT CIRCULAR SIMIL ARLY PROVIDES THAT WHERE EITHER THE QUANTUM OR THE MANNER OF QUANTIFICATION OF REMU NERATION TO THE PARTNERS HAS BEEN SPECIFIED IN THE PARTNERSHIP, THE SAME SHALL B E ALLOWABLE UNDER SECTION 40(B)(V) OF THE ACT AND NOT OTHERWISE. IN THE INST ANT CASE, GIVEN THAT THE SALARY HAS BEEN MADE A FUNCTION OF ANNUAL BOOK PROFIT WHIC H CAN BE DETERMINED ONLY AT THE END OF THE YEAR, THE EXACT QUANTUM OF REMUNERAT ION HAS NOT BEEN SPECIFIED. AT THE SAME TIME, THE PARTNERSHIP DEED CLEARLY PROV IDES FOR THE MANNER OF QUANTIFICATION OF REMUNERATION. IT IS NOT A CASE S IMPLICITER THAT THE PARTNERS HAVE LEFT THE DOORS OPEN TO CLAIM THE REMUNERATION AS PE R SECTION 40(B)(V) OF THE ACT WHICH APPARENTLY IS THE BACKDROP FOR ISSUANCE OF CB DT CIRCULAR NO. 739 DATED 25.03.1996. GIVEN THE CLEAR FACTS AND CDBT GUIDANC E WHICH RATHER SUPPORTS THE CASE OF THE APPELLANT THAN THE REVENUE, THE LD CIT( A) HAS RIGHTLY DELETED THE DISALLOWANCE WHERE IS HEREBY CONFIRMED. HENCE, GRO UND NO. 2 OF REVENUE IS DISMISSED. 4. REGARDING GROUND NO. 3, REVENUE HAS CHALLENGED T HE DISALLOWANCE OF DEPRECIATION OF RS. 31,800/-. BRIEF THE FACTS ARE THAT THE ASSESSEE CLAIMED THE DEPRECIATION OF RS. 31,800/- ON A TRUCK PURCHASED F OR RS. 2,12,000/-. IN ABSENCE OF ANY DOCUMENTARY EVIDENCE IN SUPPORT OF PURCHASE OF TRUCK, THE AO DISALLOWED THE CLAIM OF DEPRECIATION. 4.1 LD CIT(A) HAS GIVEN A CATEGORICAL FINDING THAT THE TRUCK WAS REGISTERED IN THE NAME OF ASSESSEE WHICH IS NOT DISPUTED BEFORE US AN D THE WRONG MENTIONING OF SELLERS NAME APPEARS TO BE CLERICAL ERROR. HE ACC ORDINGLY ALLOWED ALLOW DEPRECATION OF RS. 31,800/- WHICH IS HEREBY CONFIRM ED. THIS GROUND OF APPEAL IS, THEREFORE DISMISSED. ITA NO. 719/JP/13 ACIT CIRCLE-1, KOTA VS. M/S MODERN MOTORS, KOTA 8 IN THE RESULT THE APPEAL FILED BY THE DEPARTMENT IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29/02 /2016. SD/- SD/- ( R.P. TOLANI) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER JAIPUR DATED:- 29/ 02 /2016 PILLAI VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- THE ACIT, CIRCLE-1, KOTA 2. THE RESPONDENT- M/ MODERN MOTORS, 162 JHALAWAR R OD, KOTA 3. THE CIT(A) KOTA 4. THE CIT, KOTA 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO SA NO. 719/JP/13) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR.