Shri Romesh Kumar, Jammu & Kashmir V. The Income-tax Officer, Jammu & Kashmir

ITA 88/ASR/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0716 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 30-05-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 11-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P N ARORA
• Keywords: Depreciation
• Section: 32

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR (SMC). BEFORE SH. A.D. JAIN, JUDICIAL MEMBER ITA NO.88(ASR)/201R ASSESSMENT YEAR:2005-06 PAN: AILPS4922J SH. ROMESH KUMAR VS. INCOME TAX OFFICER, PROP. M/S. RAMESH KUMAR & BROS, KATHUA. CHADWAL ( J & K). (APPELLANT) (RESPONDENT) APPELLANT BY: SH.P.N.ARORA, ADVOCATE RESPONDENT BY: SH. UMESH TAKYAR, DR DATE OF HEARING: 30/05/2016 DATE OF PRONOUNCEMENT: 6/06/2016 ORDER THIS IS THE ASSESSEES APPEAL FOR THE ASSESSMENT Y EAR 2005-06, AGAINST THE ORDER DATED 22.11.2013, PASSED BY THE L D. CIT(A), JAMMU. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL: 1. THAT THE ASSESSMENT ORDER AS WELL AS THE ORDER OF THE LD. CIT(A) ARE BOTH AGAINST THE FACTS OF THE CASE AND U NTENABLE LAW. 2. THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN REJECTI NG THE APPEAL IN A SUMMARY MANNER WITHOUT APPRECIATING THE FACTS AND WITHOUT APPLYING HIS MIND. THE CIT(A) HAS GROSSLY ERRED IN CONFIRMING THE ORDER OF THE AO WITHOUT APPRECIATING THE FACTS OF THIS CASE. 3. THAT THE LD. CIT(A) HAS GROSSLY ERRED IN CONFIRM ING THE ADDITION OF RS.28,808/- IN THE CAR RUNNING EXPENSE S AND ITA NO.88(ASR)/2014 A.Y. 2005-06 2 DEPRECIATION. THAT THE CAR WAS USED FOR THE PURPOSE S OF BUSINESS AND ALL THE EXPENSES AS CLAIMED SHOULD HAV E BEEN ALLOWED. 4. THAT SIMILARLY, THE DEPRECIATION AS CLAIMED AT R S.1,68,116/- SHOULD HAVE BEEN ALLOWED AS THE TRUCK (VEHICLE) WAS USED FOR THE PURPOSES OF BUSINESS DURING THE COURSE OF BUSIN ESS AND DURING THE YEAR UNDER CONSIDERATION. 2. AS PER THE REGISTRY, THERE IS DELAY OF 66 DAYS I N FILING THE APPEAL. THE ASSESSEE HAS FILED AN APPLICATION FOR CONDONATI ON OF DELAY ALONGWITH AFFIDAVIT, STATING THEREIN THAT DUE TO THE ILLNESS OF ASSESSEES FATHER, WHO REMAINED HOSPITALIZED FOR MORE THAN 5-6 MONTHS AND ULTIMATELY EXPIRED IN JULY, 2014, THE APPEAL COULD NOT BE FILED IN TIM E AND HAS REQUESTED FOR CONDONATION OF DELAY. 3. CONSIDERING THE ABOVE CONTENTS OF THE APPLICATIO N FOR CONDONATION OF DELAY, I AM OF THE VIEW THAT THE ASSESSEE WAS VI SITED WITH SUFFICIENT CAUSE PREVENTING HIM FROM FILING THE APPEAL IN TIME . ACCORDINGLY, THE DELAY IN THE FILING THE APPEAL IS CONDONED. 4. GROUND NOS. 1 & 2 ARE GENERAL IN NATURE. HENCE, DO NOT REQUIRE ANY ADJUDICATION. 5. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAD PURCHASED VEHICLE ON 07.03.2005 AND THE VEHICLE ALONGWITH BOD Y WAS PASSED ON 18.3.2005. THE ASSESSEE HAD RUN THE VEHICLE FOR A S HORT PERIOD FOR CARRYING OF GOODS AND CLAIMED DEPRECIATION. THE AO ASKED THE ASSESSEE TO PROVIDE THE EVIDENCE OF PASSING OF VEHICLE NO.JK 02X4327 AS CLAIMED BY THE ASSESSEE. NO SUCH EVIDENCE WAS PRODUCED BY T HE ASSESSEE, ITA NO.88(ASR)/2014 A.Y. 2005-06 3 HOWEVER, THE ASSESSEE PRODUCED THE COPY OF THE GOOD S CARRIAGE PERMIT WHICH WAS ISSUED ON 12.04.2005 BY THE REGIONAL TRAN SPORT AUTHORITY, JAMMU. THE AO OBSERVED THAT IN VIEW THE DETAILS OF MOVEMENT OF TRUCKS MAINTAINED BY THE ASSESSEE, IT WAS ESTABLISHED THA T THE VEHICLE IN QUESTION WAS NOT PUT TO USE IN THE BUSINESS DURING THE RELEVANT PREVIOUS YEAR AND SUCH DID NOT QUALIFY FOR THE CLAIM OF DEPR ECIATION, AS PER THE PROVISIONS OF SECTION 32 OF THE ACT. THE AO FURTHER OBSERVED THAT THE AMOUNT IN RESPECT OF FREIGHT PAID AND TOLL PAID DUR ING THE PREVIOUS YEAR DID NOT CONTAIN ANY DETAIL OF ANY SUCH EXPENDITURE INCURRED BY TRANSPORTING GOODS THROUGH TRUCK NO.JK02X4327. AS S UCH, HE DID NOT ALLOW DEPRECIATION TO THE TUNE OF RS.1,68,116/-. 5.1. THE AO ALSO DISALLOWED DEPRECIATION ON CAR AND CAR RUNNING EXPENSES AT 1/6 TH AND ACCORDINGLY MADE AN ADDITION OF RS.28,808/-. 6. ON APPEAL, THE LD. CIT(A) CONFIRMED THE ORDER OF THE ASSESSING OFFICER. 7. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AUTHORITIES BELOW HAVE FAILED TO APPRECIATE THAT ONCE THE ASSE SSEE APPLIED FOR GOODS CARRIAGE PERMIT, THE ASSESSEE IS ENTITLED FOR THE DEPRECIATION. IT HARDLY MATTERS THAT THE PERMIT WAS ISSUED ON 12.04.2005 A ND ESPECIALLY WHEN THE TRUCK WAS READY AND PLIED FOR BUSINESS. IN VIEW OF THESE FACTS AND CIRCUMSTANCES, THE ASSESSEES COUNSEL PLEADED THAT DEPRECIATION AS CLAIMED SHOULD HAVE BEEN ALLOWED. THE LD. COUNSEL F OR THE ASSESSEE HAS PLACED RELIANCE ON THE FOLLOWING CASE LAWS TO SUPPO RT HIS CASE: ITA NO.88(ASR)/2014 A.Y. 2005-06 4 I) CIT VS. INTEGRATED TECHNOLOLGIES LTD., DT. 16. 12.2011 IN ITA NO.530/2011 (DELHI). II) CIT VS. REFRIGERTION & ALLIED INDUSTRIES LTD., 24 7 ITR 12 (DELHI) III) CIT-1 VS. CHENNAI PETROLEUM CORPN. LTD., 358 ITR 314 (MAD.) 7.1. AS REGARDS DEPRECIATION ON CAR RUNNING EXPENSE S, THE ASSESSEES COUNSEL SUBMITTED THAT THE CAR WAS USED FOR BUSINE SS PURPOSES AND AS SUCH THE EXPENSES AS CLAIMED SHOULD HAVE BEEN ALLOW ED IN TOTO. ALTERNATIVELY, HE PLEADED THAT THE DISALLOWANCE IS VERY HIGH AND EXCESSIVE. 8. ON THE OTHER HAND, THE LD. DR STRONGLY RELIED ON THE IMPUGNED ORDER. 9. HAVING HEARD THE RIVAL CONTENTIONS IN THE LIGHT OF THE MATERIAL AVAILABLE ON RECORD, I AM OF THE VIEW THAT THE AUT HORITIES BELOW WERE NOT JUSTIFIED IN DISALLOWING DEPRECIATION CLAIMED BY TH E ASSESSEE WHEN THE TRUCK WAS READY AND PLIED FOR BUSINESS, THOUGH THE PERMIT WAS ISSUED ON 12.04.2005. ONCE THE ASSESSEE APPLIED FOR GOODS CAR RIAGE PERMIT, HE BECOMES ELIGIBLE FOR THE DEPRECIATION. SIMILARLY, A S REGARDS DEPRECIATION ON CAR, THE ASSESSEE APPEARS HAVE USED THE CAR FOR BUSINESS PURPOSES, AS POINTED OUT BY LD. COUNSEL FOR THE ASSESSEE. IN VI EW OF THE ABOVE FACTS AND CIRCUMSTANCES, I DEEM IT APPROPRIATE TO REMIT T HIS MATTER TO THE FILE OF THE ASSESSING OFFICER, TO BE DECIDED AFRESH, IN ACCORDANCE WITH LAW, ON AFFORDING DUE AND ADEQUATE OPPORTUNITY OF HEARING T O THE ASSESSEE. THE ITA NO.88(ASR)/2014 A.Y. 2005-06 5 ASSESSEE, NO DOUBT, SHALL COOPERATE IN THE FRESH PR OCEEDINGS BEFORE THE A.O. 10. IN THE RESULT, THE APPEAL IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 06/06/ 2016. SD/- (A.D. JAIN) JUDICIAL MEMBER /SKR/ DATED: 06/06/2016 COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SH. ROMESH KUMAR, CHADWAL, ( J & K) 2. THE ITO, KATHUA. 3. THE CIT(A), JAMMU 4. THE CIT, JAMMU 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.