ACIT, Erode V. Sri. D.Chandrasekaran, Perundurai

ITA 852/CHNY/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 86260 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 9 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-02-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 19-01-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 18-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P RADHAKRISHNAN IRS
• Assessee Lawyers: S SRIDHAR
• Keywords: Depreciation

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI .. , , BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER ./ I.T.A. NO.852/MDS/2012 ( ! / ASSESSMENT YEAR : 2008-2009) THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE II, ERODE ( /APPELLANT) VS. SHRI. D. CHANDRASEKARAN, PROP.URC EARTH MOVERS, URUMANDAMPALAYAM, PERUNDURAI -638052. [PAN :AFGPC6532G] ( /RESPONDENT) ' # $ / APPELLANT BY : SHRI. P. RADHAKRISHNAN, IRS, JCIT. %&' # $ / RESPONDENT BY : SHRI. S. SRIDHAR, ADVOCATE. ' ( # )* /DATE OF HEARING : 19.01.2015. +,! # )* /DATE OF PRONOUNCEMENT : 02.02.2015. / O R D E R PER VIKAS AWASTHY, JUDICIAL MEMBER THE APPEAL HAS BEEN FILED BY THE REVENUE A GAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) -I, COIMBATORE DATED 27.01.2012 FOR THE ASSESSMENT YEAR 2008-2009. THE REVENUE HAS RAISED AS MANY AS SEVEN GROUNDS IN THE APPEAL. GROUND NO.1 AND 7 OF THE APPEAL ARE GENERAL IN NATURE. IN GROU ND NOS. 2 TO 6, THE -2- I.T.A. NO.852/MDS/2012 REVENUE HAS ASSAILED THE FINDINGS OF THE COMMISSION ER OF INCOME TAX (APPEALS) IN ALLOWING HIGH RATE OF DEPRECIATION ON LORRIES, CRANES AND JCBS. 2. THE BRIEF FACTS OF THE CASE AS EMANATING FRO M THE RECORDS ARE: THE ASSESSEE OWNS SEVERAL JCBS, CRANES, TIPPERS AND LORRIES AND USE THE SAME IN HIS CONTRACT BUSINESS AND SALE OF MUD. FOR THE ASSESSMENT YEAR 2008-2009, THE ASSESSEE FILED ITS R ETURN OF INCOME ON 29.09.2008 DECLARING TOTAL INCOME OF @.15,97,630 /-. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY. DURING THE COURSE OF SCRUTINY ASSESSMENT, THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAS CLAIMED DEPRECIATION @ 30% ON TIPPER, LORRIES, CHINA LOADER, CRANE AND JCBS . THE ASSESSING OFFICER REST RICTED DEPRECATION TO 15% ON THE GROUND THAT THE ASSESSEE IS USING THE VEHICLES FOR HIS OWN BUSINESS AND IS NOT USING THEM IN THE BUSINESS OF VEHICLE HIRING. AGGRIEVED BY THE ASSESSMENT ORDER DATED 31. 12.2010, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE COMMISSIONE R OF INCOME TAX (APPEALS). THE COMMISSIONER OF INCOME TAX (APP EALS) AFTER APPRECIATING RECORDS AND FACTS OF THE CASE, CAME TO THE CONCLUSION THAT THE ASSESSEE HAS BEEN GIVING JCBS, CRANES, LOR RIES ETC. ON HIRE TO THIRD PARTIES AND IS THUS ELIGIBLE TO CLAIM HIGH ER RATE OF DEPRECIATION ON THEM. -3- I.T.A. NO.852/MDS/2012 AGAINST THESE FINDINGS OF THE COMMISSIONER OF I NCOME TAX (APPEALS), THE REVENUE HAS COME IN APPEAL BEFORE TH E TRIBUNAL. 3. SHRI. P. RADHAKRISHNAN, REPRESENTING THE DEP ARTMENT, SUBMITTED THAT THE ASSESSEE IN HIS SUBMISSION BEFOR E THE ASSESSING OFFICER HAS ADMITTED THAT HE HAS BEEN USING TIPPER AND OTHER MACHINES FOR HIS OWN BUSINESS USE OF MUD SALES AND LOADING AND UNLOADING CONTRACT. SINCE THE ASSESSEE IS NOT GIVI NG THESE MACHINES/VEHICLES ON HIRE, THE ASSESSEE IS NOT ENT ITLED FOR HIGHER RATE OF DEPRECIATION. THE LEARNED DEPARTMENTAL REP RESENTATIVE FURTHER SUBMITTED THAT THE COMMISSIONER OF INCOME T AX (APPEALS) HAS ERRED IN FOLLOWING EARLIER ORDER FOR THE ASSESS MENT YEAR 2007- 2008. THE REVENUE HAD FILED APPEAL AGAINST THE SAI D ORDER. HOWEVER, THE APPEAL WAS DISMISSED BY THE TRIBUNAL V IDE ORDER DATED 23 RD AUGUST, 2013 ON THE GROUND OF LIMITATION ALONE. T HE LEARNED DEPARTMENTAL REPRESENTATIVE VEHEMENTLY SUPPORTED TH E ASSESSMENT ORDER AND PRAYED FOR REVERSING THE FINING OF THE CO MMISSIONER OF INCOME TAX (APPEALS). 4. SHRI. S. SRIDHAR APPEARING ON BEHALF OF T HE ASSESSEE SUBMITTED THAT THE ASSESSEE IS GIVING JCBS, TIPPERS AND CRANES ON HIRE TO VARIOUS COMPANIES. THE ASSESSEE PLACED ON RECORD A COPY OF -4- I.T.A. NO.852/MDS/2012 THE TDS CERTIFICATE TO SHOW THAT THE COMPANIES HAD DEDUCTED TAX AT SOURCE ON THE PAYMENTS MADE TOWARDS HIRING CHARGES FOR THE AFORESAID MACHINES/VEHICLES. THE LEARNED AUTHORIZE D REPRESENTATIVE STRONGLY SUPPORTED THE IMPUGNED ORDER AND PRAYED FO R DISMISSING THE APPEAL OF THE REVENUE. 5. WE HAVE HEARD THE SUBMISSIONS MADE BY TH E REPRESENTATIVES OF BOTH SIDES AND HAVE PERUSED THE ORDERS OF THE AU THORITIES BELOW. HIGHER RATE OF DEPRECIATION @ 30% HAS BEEN DENIED T O THE ASSESSEE ONLY ON THE GROUND THAT THE ASSESSEE IS USING TIPPE R, JCBS, CRANES, ETC IN THE COURSE OF HIS OWN BUSINESS AND IS NOT G IVING THEM ON HIRE. WE OBSERVE THAT THE FINDINGS OF THE ASSESSING OFFIC ER ARE CONTRARY TO DOCUMENTS ON RECORD. THE LEARNED DEPARTMENTAL REPR ESENTATIVE IN ORDER TO SUPPORT THE CASE OF THE REVENUE HAS PLACED RELIANCE ON THE STATEMENT RECORDED ON 4 TH NOVEMBER, 2009. A PERUSAL OF THE STATEMENT WHICH HAS BEEN PLACED ON RECORD BY THE RE VENUE DOES NOT INDICATE THE PROVISIONS AND THE PROCEEDINGS UNDER W HICH THE STATEMENT HAS BEEN RECORDED. MOREOVER, THE REVENUE HAS NOT CORROBORATED THE SAME WITH ANY MATERIAL EVIDENCE. ON THE CONTRARY, THE CONTENTIONS OF THE ASSESSEE ARE SUBSTANTIATED B Y TDS CERTIFICATES - 5- I.T.A. NO.852/MDS/2012 FURNISHED BY THE ASSESSEE ALONGWITH THE RETURN OF I NCOME. THE COMMISSIONER OF INCOME TAX (APPEALS) IN HIS ORDER H AS RECORDED THE FINDINGS THAT THE ASSESSEE HAS PLACED ON RECORD THE DETAILS OF TAX DEDUCTED AT SOURCE BY LAKSHMIVEL MILLS, K.G. FABRIK S LIMITED, SRI SUGAM INTERNATIONAL AND AGNI STEELS PVT. LIMITED T O SHOW THAT THE TDS WAS PAID FOR CONTRACT WORK. THE COMMISSIONER O F INCOME TAX (APPEALS) ALSO REFERRED TO HIS ORDER FOR THE ASSESS MENT YEAR 2007-08 WHERE SIMILAR ISSUE WAS DECIDED IN FAVOUR OF THE AS SESSEE. WE HAVE ALSO EXAMINED THE ORDER OF THE COMMISSIONER OF INCO ME TAX (APPEALS)-I, COIMBATORE DATED 20.12.2010 FOR THE AS SESSMENT YEAR 2007-2008, WHEREIN HE HAS CATEGORICALLY OBSERVED TH AT THE BILL BOOKS PRODUCED BY THE ASSESSEE SHOW THAT BILLS WERE ISSU ED TO VARIOUS PARTIES FOR GIVING LORRIES, CRANES AND JCBS ON HIRE . THERE IS NOTHING CONTRARY ON RECORD TO REVERSE THE FINDINGS OF THE C OMMISSIONER OF INCOME TAX (APPEALS) ON THIS ISSUE. WE DO NOT FIND ANY INFIRMITY IN THE IMPUGNED ORDER. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED BEING DEVOID OF MERITS. - 6- I.T.A. NO.852/MDS/2012 ORDER PRONOUNCED ON MONDAY, THE 2ND OF FE BRUARY, 2015, AT CHENNAI. SD/- SD/- ( . . ) (B.R. BASKARAN) / ACCOUNTANT MEMBER ( !' ' ) (VIKAS AWASTHY) # /JUDICIAL MEMBER - /DATED:02.02.2015. K.V . # %)/ 0!) /COPY TO: 1. '/ APPELLANT 2. %&' / RESPONDENT 3. ' 2) ( )/CIT(A) 4. ' 2) /CIT 5. 34 %) 5 /DR 6. 46 7( /GF.