ACIT, CC- XII, Kolkata, Kolkata V. M/s B.Ghose & co. Pvt. Ltd., Kolkata

ITA 864/KOL/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3133 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-06-2013
• Appeal Filed By: Department
• Bench Allotted: C
• Assessment Year: 2000-2001
• Appeal Filed On: 30-05-2012
• Court: TRIBUNAL
• Department Lawyers: AMITABHA ROY
• Keywords: Depreciation; Question of law
• Section: 154

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH C , KOLKATA [ () . .. . . .. . , ,, , , ! ' #!' ' #!' ' #!' ' #!', ,, , ] ]] ] [BEFORE HONBLE SRI N.S.SAINI AM & HONBLE SRI M AHAVIR SINGH, JM] !% !% !% !% /ITA NO.864/KOL/2012 #& '(/ ASSESSMENT YEAR : 2000-01 (*+ / APPELLANT ) - - ( -.*+ /RESPONDENT) A.C.I.T., CENTRAL CIRCLE-XII, M/S.B.GHOSE & CO.P VT.LTD. KOLKATA -VERSUS- KOLKATA (PAN:AABCB 1936 C) *+ / 0 / FOR THE APPELLANT: SHRI AMITABHA ROY, SR.DR -.*+ / 0 / FOR THE RESPONDENT: SHRI RAJEEVA KUMAR, ADVOCATE 1 2 / 3 /DATE OF HEARING : 12.06.2013 4' / 3 /DATE OF PRONOUNCEMENT : 18.06.2013. 5 / ORDER PER SHRI N.S.SAINI, AM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A)-XXIV, KOLKATA DATED 20.01.2012. 2. THE SOLE ISSUE INVOLVED IN THIS APPEAL IS THAT THE LD. CIT(A) ERRED IN ALLOWING HIGHER DEPRECIATION ON TRUCKS, FORKLIFTS, CRANES, S TACKERS ETC. AT THE RATE OF 40% INSTEAD OF NORMAL RATE 25% WITHOUT APPRECIATING THA T THE ASSESSEE WAS ENGAGED IN BUSINESS OF STEVEDORING AND NOT ENGAGED IN BUSINESS OF RUNNING THEM ON HIRE. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE AO OBSE RVED THAT THE ASSESSEES BUSINESS IS HANDLING AND STEVEDORING WHICH ARE NOT SIMILAR T O THAT OF GIVING TRUCKS AND LORRY ON HIRE. DEPRECIATION @40% IS ALLOWABLE AS PER LAW IN THE CASES OF TRUCKS USED SPECIFICALLY FOR TRANSPORTATION OF GOODS ON HIRING BASIS. THEREFORE HE ALLOWED DEPRECIATION TO THE ASSESSEE AT NORMAL RATE OF 25% ON CRANES, TRUCKS, FORKLIFTS, STACKER IT A NO.864/KOL/2012 ACIT,CC.XII, KOLKATA VS M/S.B.GHOSE & CO.PVT.LTD . A.YR.2000-01 2 ETC. USED BY IT IN ITS BUSINESS OF HANDLING & STEVE DORING THEREBY EXCESS CLAIM OF DEPRECIATION OF RS.26,10,495/- WAS DISALLOWED. 3.1. ON APPEAL THE LD. CIT(A) ALLOWED THE CLAIM OF DEPRECIATION @40% ON TRUCKS, FORKLIFTS, CRANES, STACKERS ETC. BY FOLLOWING THE O RDER OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF ASSESSEE ITSELF IN ITA NO.504 OF 2008 (G.A.NO.2124 OF 2008) WHEREIN THE HONBLE HIGH COURT CONFIRMED THE ORDER OF THE TRIBUNAL BY OBSERVING AS UNDER :- WE NOW TAKE UP THE APPLICATION FOR ADMISSION OF APP EAL. WE HAVE HEARD LEARNED ADVOCATES FOR THE PARTIES. WE HAVE ALSO PERUSED THE ORDER PASSED BY THE TRIBUNAL. IT IS APPEARS THAT THE TRIBUNAL HAS SPECIFICALLY HELD AS FOLLOWS :- WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS OF THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THERE IS NO DISPUTE THAT THE ASSESSEE COMPANY ENGAGED IN THE BUSINESS OF STEVEDORING , HANDLING O F CARGO WHICH INCLUDES, INTER ALIA, LOADING, UNLOADING AND TRANSPORTATION OF GOODS AND SUCH ACTIVITIES ARE CARRIED ON THROUGH TRUCKS, TRAILOR, CRANES, FORKLIFTS ETC. AGA INST HIRE CHARGES RECEIVED FROM THE OTHER PARTIES AND INCLUDED IN THE TOTAL INCOME FROM STEVE DORING AND HANDLING SHOWN BY THE ASSESSEE. WE FURTHER FIND THAT THE DISALLOWANCE OF DEPRECIATION WAS MADE BY THE ASSESSING OFFICER ON THE GROUND THAT IN THE ASSESSM ENT EAR 1999-2000 THE DEPRECIATION WAS ALLOWED @25% ONLY INSTEAD OF 40% CLAIMED BY THE ASSESEE ON TRUCK, TRAILORS, CRANES AND FORKLIFTS WHICH THE LD. CIT(A) HAS ALSO UPHELD. WE FURTHER FIND THAT IN THE ASSESSMENT YEAR 1999-2000, THE TRIBUNAL HAS DELETED THE DISALLOWANCE VIDE ORDER PASSED IN ITA NO.2422/K/2005 DATED 24/03/2006 ON TH E GROUND THAT PROCEEDINGS U/S 154 IS NOT TENABLE AND MISTAKE IS NOT AN APPARENT M ISTAKE. WE FURTHER FIND THAT SINCE THE ASSESSING OFFICER HAS ACCEPTED THAT THE TRUCKS, CRA NES, FORKLIFTS ARE USED BY THE ASSEESSEE FOR LOADING AND UNLOADING OF TRANSPORTATI ON OF GOODS AGAINST WHICH THE ASSESSEE HAS RECEIVED HIRE CHARGES INCLUDED IN THE TOTAL INCOME FROM STEVEDORING AND HANDLING, THEREFORE, THE ASSESSEE HAS PROVED THAT T HE IMPUGNED VEHICLES ARE USED BY THE ASSESSEE IN A BUSINESS OF RUNNING THEM ON HIRE, THE RECEIPTS OF WHICH HAVE BEEN ACCEPTED BAY THE ASSESSING OFFICER AS SHOWN BY THE ASSESSEE. IN THE ABSENCE OF ANY OTHER CONTRARY MATERIAL BROUGHT ON RECORD BY THE REVENUE, WE ARE O F THE VIEW THAT WHEN ONCE ON THE FACT IT IS FOUND THAT THE ASSESSEE WAS CARRYING ON THE BUSINESS OF HIRING ITS VEHICLE, AND THEY WERE NOT USED FOR ITS OWN OTHER BUSINESS, THE ASSESSEE IS ENTITLED TO 40% DEPRECIATION AS PROVIDED IN THE APPENDIX AND NOT AT 25% AS ALLOWED BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. CIT(A). THIS VIEW FINDS SUPPORT FROM THE RECENT DECISION OF HONBLE KARNATAKA HIGH COURT IN CIT VS BPL SANYO FINANCE LTD. (2006) 287 ITR 69 (KAR). ACCORDINGLY THE DISALLOWANCE OF D EPRECIATION MADE BY THE ASSESSING OFFICER AND SUSTAINED BY THE LD. CIT(A) IS DIRECTED TO BE DELETED. THE GROUNDS TAKEN BY THE ASSESSEE ARE, THEREFORE, ALLOWED. WE DO NOT FIND ANY REASON TO INTERFERE WITH TH E ORDER SO PASSED BY THE LEARNED TRIBUNAL NOR THE ORDER SO PASSED BY THE LEARNED TRI BUNAL SUFFERS FORM ANY LEGAL INFIRMITY NOR WE FIND THAT ANY SUBSTANTIAL QUESTION OF LAW IS INVOLVED IN THIS APPEAL. HENCE, THE APPEAL BEING ITA NO.319 OF 2009 IS DISMI SSED. IT A NO.864/KOL/2012 ACIT,CC.XII, KOLKATA VS M/S.B.GHOSE & CO.PVT.LTD . A.YR.2000-01 3 4. THE LD. DR COULD NOT POINT OUT ANY SPECIFIC ERRO R IN THE ORDER OF THE LD. CIT(A). HE ALSO COULD NOT POINT OUT ANY DISTINGUISHABLE FEA TURES TO NOT TO FOLLOW THE ABOVE QUOTED ORDER OF THE HONBLE CALCUTTA HIGH COURT IN ASSESSEES OWN CASE. WE THEREFORE FIND NO GOOD AND JUSTIFIABLE REASON TO INTERFERE WI TH THE ORDER OF THE LD. CIT(A) WHICH IS CONFIRMED AND THE GROUND OF APPEAL OF THE REVENU E IS DISMISSED. 5. IN THE RESULT THE APPEAL OF THE REVENUE IS DISMI SSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18.06.2013. SD/- SD/- [ .' #!' , ] [ .., ,, , ] [MAHAVIR SINGH ] [N.S.SAINI] JUDICIAL MEMBER ACCOUNTANT MEMBER ( (( (3 3 3 3) )) ) DATE: 18.06.2013. R.G.(.P.S.) 5 / -##6 76'8- COPY OF THE ORDER FORWARDED TO: 1. M/S.B.GHOSE & CO.PVT. LTD, 19/1, CAMAC STREET, KOLK ATA-700019. 2 A.C.I.T., CENTRAL CIRCLE-XII, KOLKATA 3 . CIT KOLKATA 4. CIT (A)-XXIV, KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. .6 -#/ TRUE COPY, 51/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES