DCIT, V. Nambiatuukudy Agro Industries, Perumbavoor

ITA 771/COCH/2007

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 64774 (ITAT-COCHIN)
• Duration Of Justice: 5 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-09-2012
• Appeal Filed By: Department
• Bench Allotted: DB
• Next Hearing Date: 11-09-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 22-08-2007
• Court: TRIBUNAL
• Department Lawyers: B SAJJIEVE
• Keywords: Depreciation; Rectification of order

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI N.R.S.GANESAN, JM AND B.R.BASKAR AN, AM I.T.A. NO. 771/COCH/2007 ASSESSMENT YEAR : 2004-05 THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-1, ALUVA. VS. NAMBIATTUKUDY AGRO INDUSTRIES, KOOVAPADY P.O., PERMBAVOOR-683 544. [PAN:AACFN 6936G] (REVENUE-APPELLANT) (ASSESSEE-R ESPONDENT) REVENUE BY SHRI B. SAJJIEVE, JR. DR ASSESSEE BY NONE DATE OF HEARING 11/09/2012 DATE OF PRONOUNCEMENT 14/09/2012 O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: THE APPEAL OF THE REVENUE IS DIRECTED AGAINST T HE ORDER DATED 19-06-2007 PASSED BY THE LD. CIT(A)- II, KOCHI AND IT RELATES TO THE ASS ESSMENT YEAR 2004-05. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE, NOR ANY ADJOURNMENT APPLICATION FILED BEFORE THE BENCH. HENCE, WE PROCEED TO DISPOSE OF THIS APPEAL EX PARTE, QUA THE ASSESSEE. 3. THIS APPEAL WAS ORIGINALLY DISPOSE OF BY THE TRI BUNAL, VIDE ITS ORDER DATED 28-08- 2008. HOWEVER, THE SAID ORDER WAS RECALLED ON 03-02 -2012 ON THE BASIS OF MISCELLANEOUS PETITION FILED BY THE REVENUE. ACCOR DINGLY THIS APPEAL WAS POSTED FOR HEARING TODAY. I.T.A. NO.771 /COCH/2007 2 4. THE SOLITARY ISSUE URGED BY THE REVENUE RELATES TO THE ISSUE OF RATE OF DEPRECIATION ADMISSIBLE ON THE LORRIES/TRUCKS OWNE D BY THE ASSESSEE. 5. THE FACTS RELATING TO THE SAME ARE STATED IN BRI EF. THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION, WHEREIN IT HAD CLAIMED DEPRECIATION AT THE RATE OF 40% ON LORRIES/TRUCKS OWNED BY IT. THE RETURN O F INCOME WAS ORIGINALLY PROCESSED UNDER SEC. 143(1) OF THE ACT. SUBSEQUENTLY, THE AS SESSING OFFICER INITIATED RECTIFICATION PROCEEDINGS U/S. 154 OF THE ACT, AS HE FELT THAT TH E ASSESSEE HAD CLAIMED THE RATE OF DEPRECIATION ADMISSIBLE ON THE LORRIES/TRUCKS IS ON LY 25%, AS THEY WERE PRIMARILY USED FOR ASSESSEES OWN BUSINESS AND OCCASIONALLY LET OU T ON HIRE. ACCORDINGLY, HE PASSED THE RECTIFICATION ORDER U/S. 154 OF THE ACT RESTRIC TING THE DEPRECIATION CLAIM TO 25%. AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEA L BEFORE THE LD. CIT(A) AND THE LD. CIT(A) ALLOWED THE CLAIM OF THE ASSESSEE. AGGRIEVE D BY THE ORDER OF THE LD. CIT(A), THE REVENUE IS IN APPEAL BEFORE US. 6. WE HAVE HEARD THE LD. DR AND PERUSED THE RECORD. ADMITTEDLY, THE ASSESSING OFFICER HAS PASSED THE IMPUGNED ORDER U/S. 154 OF T HE ACT. THE ASSESSING OFFICER HAS ALSO RECORDED A FINDING THAT THE LORRIES/TRUCKS ARE ALSO LET OUT ON HIRE OCCASIONALLY, THOPUGH THEY ARE MAINLY USED FOR ASSESSEES OWN PUR POSES. IN THIS FACTUAL SITUATION, WE ARE OF THE VIEW THAT THE ISSUE REGARDING RATE OF DE PRECIATION PERMISSIBLE ON SUCH TYPE OF LORRIES/TRUCKS BECOMES A DEBATABLE ISSUE. IT IS WE LL SETTLED PROPOSITION OF LAW, AS HELD BY THE HONBLE SUPREME COURT IN THE CASE OF T.S. BA LARAM, ITO VS. VOLKART BORTHERS, 82 ITR 50, THAT DEBATABLE ISSUES CANNOT BE RECTIFIED I N THE PROCEEDINGS INITIATED U/S. 154 OF THE ACT. ACCORDINGLY, WE ARE OF THE VIEW THAT THE IMPUGNED RECTIFICATION ORDER PASSED BY THE ASSESSING OFFICE IS NOT IN ACCORDANCE WITH L AW. 7. THOUGH THE LD CIT(A) HAS DECIDED THE ISSUE IN FA VOUR OF THE ASSESSEE ON MERITS, IN VIEW OF THE LEGAL POSITION DISCUSSED ABOVE, WE D O NOT FIND ANY REASON TO INTERFERE WITH HIS ORDER OF THE LD. CIT(A), SINCE WE HAVE DEC IDED THE CASE IN FAVOUR OF THE ASSESSEE ON THE BASIS OF LEGAL ISSUE. I.T.A. NO.771 /COCH/2007 3 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. PRONOUNCED ACCORDINGLY O N 14-09-2012 SD/- SD/- (N.R.S.GANESAN) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: KOCHI DATED: 14TH SEPTEMBER, 2012 GJ COPY TO: 1. NAMBIATTUKUDY AGRO INDUSTRIES, KOOVAPADY P.O., P ERMBAVOOR-683 544. 2. THE DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-1, ALUVA. 3.THE COMMISSIONER OF INCOME-TAX(APPEALS)-II, KOCHI . 4.THE COMMISSIONER OF INCOME-TAX, KOCHI. 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T, COCHIN