Dy. Commissioner of Income Tax -6, Kanpur V. M/s Rotomac Exports Pvt.Ltd., Kanpur

ITA 95/LKW/2012

• Counselvise Citation: 9523714 RSA 2012
• Duration Of Justice: 1 year(s) 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-12-2013
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 12-11-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 05-03-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ALOK MITRA
• Assessee Lawyers: P K KAPOOR
• Keywords: Business income; Depreciation; Opportunity of being heard; Earning of tax free income; Non compliance
• Section: 14A

Judgement Text

[ 1 ] IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER I.T.A. NOS.95 & 96/LKW/2012 A.YRS.:2006 - 07 & 2007 - 08 JT. C.I.T.(OSD)/ DCIT - VI, KANPUR. VS. M/S ROTOMAC EXPORTS PVT. LTD., 201 CITY CENTRE, 63/2, THE MALL, KANPUR. PAN:AABCR9260K (APPELLANT) (RESPONDENT) APPELLANT BY SHRI ALOK MITRA, D.R. RESPONDENT BY SHRI P. K. KAPOOR, C.A. DATE OF HEARING 12/11/2013 DATE OF PRONOUNCEMENT 2 3 /12/2013 O R D E R PER A. K. GARODIA, A.M. BOTH THESE APPEALS ARE FILED BY THE REVENUE, WHICH ARE DIRECTED AGAINST TWO SEPARATE ORDERS OF LEARNED CIT ( A) - I, KANPUR BOTH DATED 25/11/2011 FOR ASSESSMENT YEARS 2006 - 07 AND 2007 - 08 RESPECTIVELY. BOTH THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. FIRST WE TAKE UP THE APPEAL OF THE REVENUE FOR ASSESSMENT YEAR 2006 - 07 I.E . I.T.A. NO.95/LKW/2012. THE FIRST GROUND IS AS UNDER: 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.37,60,774/ - MADE U/S 14A WITHOUT APPRECIATING THE FACTS AND THE CASE OF DCIT V. S.G. INVESTMENT & [ 2 ] INDUSTRIES LTD. (2004) 89 ITD 44 (KOL.), WH EREIN IT WAS OBSERVED THAT 'IT IS TRUE THAT THE DIVIDEND INCOME ARISING FROM SHARES A S STOCK - IN - TRADE IS BUSINESS INCOME IN THE SEN S E THAT THE DIVIDEND IS REALIZED FROM THE TRADING ASSET, BUT AT THE SAME TIME, IT HAS TO BE BORNE IN MIND THAT PART OF THE BUSINESS INCOME IN THE NATUR E OF DIVIDEND IS NOT INCLUDIBLE IN THE TOTAL INCOME BY VIRTUE OF THE SAME BEING EXEMPTED UNDER SECTION 10(33) OF THE ACT, AND AS SUCH IT IS NOT UNDERSTOOD AS TO WHY THE INTEREST INCURRED TO THE EXTENT IT I S CAPABLE OF BEING REGARDED AS EXPENDITURE IN RELAT ION TO PART OF THE BUSINESS INCOME IN THE NATURE OF DIVIDEND SHOULD NOT BE ADJUSTED AGAINST EXEMPTED DIVIDEND INCOME.' 3. LEARNED D.R. OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER. HE PLACED RELIANCE ON THE TRIBUNAL DECISION RENDERED IN THE CASE OF DCIT VS. S.G. INVESTMENT & INDUSTRIES LTD. [2004] 89 ITD 44 (KOL) . HE ALSO PLACED RELIANCE ON THE JUDGMENT OF HON'BLE KERALA HIGH COURT RENDERED IN THE CASE OF CIT VS. CATHOLIC SYRIAN BANK LTD. & ORS. [ 2011] 237 CTR 0164. 4. AS AGAINST THIS, LEARNED A.R. OF THE ASSESSEE SUPPORTED THE ORDER OF LEARNED CIT ( A). HE PLACED RELIANCE ON THE FOLLOWING JUDGMENTS: (I) COMMISSIONER OF INCOME - TAX VS HERO CYCLES LTD. [2010] 323 ITR 518 (P&H) (II) YATISH TRADING CO.(P) LTD. VS. ACIT [2011] 050 DTR (A.T.) 0158 (III) MAXOPP INVESTMENT LTD. & ORS. VS. CIT [2011] 064 DTR 0122 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW . IN THE PRESENT CASE, THE ASSESSMENT YEAR I NVOLVED IS 2006 - 07 AND THEREFORE, AS PER THE JUDGMENT OF HON'BLE BOMBAY HIGH COURT RENDERED IN THE CASE OF GODREJ & BOYCE MFG. CO. LTD. VS. DY. CIT [2010] 234 CTR (BOM) 1 , RULE 8D IS NOT APPLICABLE IN THE PRESENT YEAR. IN THE PRESENT CASE, THE ASSESSING OFFICER HAS MADE [ 3 ] DISALLOWANCE BY INVOKING THE RULE 8D, WHICH CANNOT BE SUSTAINED. AT THE SAME TIME , THIS IS ALSO THE JUDGMENT OF HON'BLE BOMBAY HIGH COURT IN THE ABOVE CI TED CASE THAT REASONABLE DISALLOWANCE HAS TO BE MADE BY THE ASSESSING OFFICER. LEARNED CIT(A) HAS DELETED THIS DISALLOWANCE BY FOLLOWING THE TRIBUNAL DECISION RENDERED IN THE CASE OF YATISH TRADING CO.(P) LTD. VS. ACIT [2011] 050 DTR (A.T.) 0158 . IN THAT CASE, IT WAS HELD BY THE TRIBUNAL THAT WHERE THE ASSESSEE IS CARRYING OUT ACTIVITY OF PURCHASE AND SALE OF SHARES AS A DEALER AND DIVIDEND INCOME IS INCIDENTAL ON THE SHARES HELD BY IT AS STOCK - IN - TRADE, THERE IS NO LIVE CONNECTION BETWEEN THE INTEREST EX PENDITURE INCURRED BY IT AND SUCH DIVIDEND INCOME AND THEREFORE, NO PART OF INTEREST ON BORROWED FUND USED FOR TRADING ACTIVITY CAN BE DISALLOWED U/S 14A OF THE ACT. REGARDING THE DISALLOWANCE OUT OF ADMINISTRATIVE EXPENDITURE, IT WAS HELD THAT REASONABLE BASIS OF APPORTIONMENT OF ADMINISTRATIVE EXPENDITURES AMONG DIFFERENT ACTIVITIES IS THE VOLUME AND NATURE OF TRANSACTIONS UNDER DIFFERENT ACTIVITIES AND NOT THE RATIO OF DIVIDEND INCOME TO TAXABLE INCOME. IN THE PRESENT CASE, THE DISALLOWANCE OF RS.37,60, 774/ - INCLUDES THE DISALLOWANCE OF RS.87,285/ - OUT OF INTEREST EXPENDITURE AND THE BALANCE AMOUNT OF DISALLOWANCE OF RS.36,73,516/ - IS ON ACCOUNT OF ADMINISTRATIVE EXPENSES. HENCE, AS PER THE RATIO LAID DOWN BY THE TRIBUNAL IN THIS CASE, CITED BY LEARNED A.R. OF THE ASSESSEE AND FOLLOWED BY THE LEARNED CIT(A), THE DISALLOWANCE MADE BY THE ASSESSING OFFICER ON ACCOUNT OF INTEREST EXPENDITURE IS NOT SUSTAINABLE I.E. OF RS.87,258/ - BUT REGARDING BALANCE DISALLOWANCE OF RS.36,76,516/ - , THE MATTER HAS TO GO BAC K TO THE FILE OF THE ASSESSING OFFICER FOR MAKING DISALLOWANCE IN THE RATIO OF VOLUME OF TRANSACTIONS IN RESPECT OF DIVIDEND INCOME AND VOLUME OF TRANSACTIONS FOR THE REMAINING TAXABLE INCOME AND THE ENTIRE DISALLOWANCE CANNOT BE DELETED ON THE BASIS OF TH IS TRIBUNAL DECISION. 5.1 NOW WE EXAMINE THE APPLICABILITY OF THE JUDGMENT OF HON'BLE DELHI HIGH COURT RENDERED IN THE CASE OF MAXOPP INVESTMENT LTD. & ORS. VS. CIT [2011] 064 [ 4 ] DTR 0122 . AS PER TH IS JUDGMENT OF HON'BLE DELHI HIGH COURT, RULE 8D IS PROSPECT IVE AND IS NOT APPLICABLE RETROSPECTIVE LY . REGARDING DISALLOWANCE OF EXPENDITURE U/S 14A FOR THE EARLIER PERIOD, IT WAS HELD THAT THE A.O. HAS TO FIRST GIVE THIS FINDING THAT HE IS NOT SATISFIED WITH THE CORRECTNESS OF THE CLAIM OF THE ASSESSEE IN RESPECT OF SUCH EXPENDITURE OR THE CLAIM THAT N O EXPENDITURE IS INCURRED FOR EARNING EXEMPT INCOME AND THEN TO DETERMINE THE AMOUNT OF SUCH EXPENDITURE AS PER A REASONABLE AND ACCEPTABLE METHOD OF APPORTIONMENT. IN THIS REGARD, WE FIND THAT IT IS NOTED BY THE ASS ESSING OFFICER ON PAGE 5 OF THE ASSESSMENT ORDER THAT THE ASSESSEE HAS NOT BEEN ABLE TO GIVE DETAILS OF EXPENSES INCURRED IN RELATION TO EXEMPTED INCOME. ON THIS BASIS, HE HAS GIVEN A FINDING THAT HE IS NOT SATISFIED WITH THE CORRECTNESS OF THE CLAIM OF T HE ASSESSEE IN RESPECT OF SUCH EXPENDITURE IN RELATION TO INCOME WHICH DOES NOT FORM PART OF THE TOTAL INCOME. HENCE, IT IS SEEN THAT IN THE PRESENT CASE, THIS REQUIREMENT PRESCRIBED BY HON'BLE DELHI HIGH COURT IS FULLY SATISFIED BY THE ASSESSING OFFICER AND HE HAS GIVEN A FINDING THAT HE IS NOT SATISFIED WITH THE ASSESSEES CLAIM BECAUSE THE ASSESSEE HAS NOT SUBMITTED THE DETAILS OF EXPENSES INCURRED IN RELATION TO EXEMPTED INCOME. HENCE, THIS JUDGMENT OF HON'BLE DELHI HIGH COURT IS NOT RENDERING ANY HEL P TO THE ASSESSEE. 5.2 NOW WE CONSIDER THE APPLICABILITY OF THE JUDGMENT OF HON'BLE PUNJAB & HARYANA HIGH COURT RENDERED IN THE CASE OF COMMISSIONER OF INCOME - TAX VS HERO CYCLES LTD. [2010] 323 ITR 518 (P&H) . IN THIS CASE, IT WAS HELD BY HON'BLE PUNJAB & HARYANA HIGH COURT THAT BEFORE MAKING ANY DISALLOWANCE U/S 14A, IT HAS TO BE ESTABLISHED THAT SOME EXPENDITURE HAS BEEN INCURRED IN EARNING EXEMPTED INCOME. SINCE NO DETAIL WAS FILED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER IN RESPECT OF EXPENDITURE I NCURRED FOR EARNING DIVIDEND INCOME, THIS ASPECT CANNOT BE EXAMINED BY THE ASSESSING OFFICER AND THEREFORE, IN THE FACTS [ 5 ] OF THE PRESENT CASE, THIS JUDGMENT OF HON'BLE PUNJAB & HARYANA HIGH COURT IS NOT RENDERING ANY HELP TO THE ASSESSEE. 6. IN VIEW OF ABOV E DISCUSSION, WE ARE OF THE CONSIDERED OPINION THAT AS PER THE TRIBUNAL DECISION RENDERED IN THE CASE OF YATISH TRADING CO.(P) LTD. (SUPRA), CITED BY LEARNED A.R. OF THE ASSESSEE AND FOLLOWED BY LEARNED CIT(A), THE DISALLOWANCE MADE BY THE ASSESSING OFFICE R OF RS.87,258/ - OUT OF INTEREST EXPENDITURE IS NOT SUSTAINABLE AND THEREFORE, THE SAME STANDS DELETED AND WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF LEARNED CIT(A) ON THIS PART OF DISALLOWANCE DELETED BY HIM. FOR THE REMAINING PART OF THE DISA LLOWANCE OF RS.36,73,516/ - MADE BY THE ASSESSING OFFICER OUT OF ADMINISTRATIVE EXPENSES, WE SET ASIDE THE ORDER OF LEARNED CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR FRESH DECISION IN THE LIGHT OF THE ABOVE TRIBUNAL DECISIO N RENDERED IN THE CASE OF YATISH TRADING CO.(P) LTD. (SUPRA). WE WOULD LIKE TO MAKE IT CLEAR THAT THE BURDEN IS ON THE ASSESSEE TO SUBMIT THE DETAILS OF VOLUME OF TRANSACTIONS IN RELATION TO ACTIVITY REGARDING DIVIDEND INCOME AND OTHER ACTIVITIES FR OM WHI CH THE ASSESSEE HAS EARNED TAXABLE INCOME AND THEN THE ASSESSING OFFICER SHOULD WORK OUT THE AMOUNT OF DISALLOWANCE IN THE RATIO OF SUCH TRANSACTIONS UNDERTAKEN BY THE ASSESSEE FOR EARNING DIVIDEND INCOME AND OTHER TRANSACTIONS RESULTING INTO TAXABLE INCOM E. THE ASSESSING OFFICER SHOULD PASS NECESSARY ORDER AS PER LAW AS PER ABOVE DISCUSSION AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. GROUND NO. 1 OF REVENUES APPEAL STANDS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 7 . GROUND NO. 2 RAISED BY THE REVENUE IS AS UNDER: 2. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS. 1,93,389/ - WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE NEITHER FILED DETAILS REGARDING THE SERVICES [ 6 ] RENDERED BY 9 PERSONS NOR ANY CONFIRMATION IN LIEU OF RECEIPT OF COMMISSION BEFORE THE ASSESSING OFFICER. 8 . LEARNED D.R. OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER WHEREAS THE LEARNED A.R. OF THE ASSESSEE SUPPORTED THE ORDER OF LEARNED CIT ( A). 9 . WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT IT IS NOTED BY THE ASSESSING OFFICER ON PAGE 6 OF THE ASSESSMENT ORDER THAT THE ASSESSEE HAS DEBITED COMMIS SION TO THE EXTENT OF RS.4,50,34,037/ - . HE HAS FURTHER NOTED THAT THIS INCLUDES COMMISSION PAYMENT TO 9 INDIVIDUALS WHO HAVE BEEN PAID COMMISSION BY THE ASSESSEE BUT NO DETAIL REGARDING THE SERVICES RENDERED BY THESE PERSONS HAVE BEEN FILED BY THE ASSESSE E NOR ANY CONFIRMATION IN RESPECT OF THIS COMMISSION HAS BEEN FILED BY THE ASSESSEE. THE ASSESSING OFFICER MADE DISALLOWANCE BY OBSERVING THAT IN ABSENCE OF DETAILS REGARDING THESE PETTY COMMISSION PAID BY THE ASSESSEE, IT IS HELD TO BE UNVERIFIABLE AND TH E SAME IS DISALLOWED. WHEN THE ASSESSEE CARRIED THE MATTER BEFORE LEARNED CIT(A), HE HAS DELETED THE SAME ON THE BASIS THAT IT WAS THE SUBMISSION OF LEARNED A.R. OF THE ASSESSEE BEFORE HIM THAT THIS COMMISSION WAS PAID TO THESE PARTIES FOR SALES MOBILIZED BY THEM ON THE BASIS OF DEBIT NOT ES ISSUED BY RESPECTIVE PARTIES. THE LEARNED CIT(A) HAS BASED HIS DECISION ON THIS THAT THE ASSESSING OFFICER HAS NOT MENTIONED IN THE ASSESSMENT ORDER OR ORDER SHEET THAT THE ASSESSEE HAS MADE ANY NON COMPLIANCE OR THE B OOKS OF ACCOUNT, BILLS AND VOUCHERS WERE NOT PRODUCED FOR HIS EXAMINATION. HE HAS ALSO NOTED THAT THE SALES MOBILIZED BY THE SALE/COMMISSION AGENT ARE MENTIONED IN THE DEBIT NOTES AND ON THIS BASIS , HE HAS DELETED THE DISALLOWANCE. THE LEARNED CIT ( A) HA S TOTALLY FAILED TO DISLODGE THE MAIN OBJECTION OF THE ASSESSING OFFICER THAT THE ASSESSEE HAS NOT PROVIDED ANY DETAILS REGARDING THE SERVICES RENDERED BY THESE 9 PERSONS. THE ASSESSING OFFICER HAS ALSO NOTED THAT NO CONFIRMATION HAS BEEN [ 7 ] FILED FROM THESE 9 PERSONS. IN SPITE OF THESE TWO OBJECTIONS OF THE ASSESSING OFFICER, THERE IS NO MENTION IN THE ORDER OF LEARNED CIT ( A) REGARDING DETAILS OF SERVICES RENDERED BY THESE 9 PERSONS AND REGARDING THEIR CONFIRMATION. HENCE, WE ARE OF THE CONSIDERED OPINION THAT THE ORDER OF LEARNED CIT ( A) ON THIS ISSUE IS NOT SUS TAINABLE IN THE FACTS OF THE PRESENT CASE. WE, THEREFORE, REVERSE THE SAME AND RESTORE THAT OF THE ASSESSING OFFICER. GROUND NO. 2 OF THE REVENUES APPEAL IS ALLOWED. 10 . AS A RESULT, THE APPEAL OF THE REVENUE FOR ASSESSMENT YEAR 2006 - 2007 IS PARTLY ALLOWED IN THE TERMS INDICATED ABOVE. 1 1 . NOW WE TAKE UP THE APPEAL OF THE REVENUE FOR ASSESSMENT YEAR 2007 - 08 I.E . I.T.A. NO.96/LKW/2012. GROUND NO. 1 OF THE APPEAL IS AS UNDER: 1. THE LD. CTT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.25,43,928/ - MADE U/S 14A WITHOUT APPRECIATING THE FACTS AND THE CASE OF DCIT VS. S.G. INVESTMENT & INDUSTRIES LTD. (2004) 89 ITD 44 (KOL.), WHEREIN IT WAS OBSERVED THAT THAT - 'IT IS TRUE THAT THE DIVIDEND INCOME ARISING' FROM SHARES HELD AS STOCK - IN - TRADE IS BUSINESS INCOME IN THE SENSE THAT THE DIVIDEND IS REALIZED FROM THE TRADING ASSET, BUT AT THE SAME TIME, IT HAS TO BE BORNE IN MIND THAT PART OF THE BUSINESS INCOME IN THE NATURE OF DI VIDEND IS NOT INCLUDIBLE IN THE TOTAL INCOME BY VIRTUE OF THE SAME BEING EXEMPTED UNDER SECTION 10(33) OF THE ACT, AND AS SUCH IT IS NOT UNDERSTOOD AS WHY THE INTEREST INCURRED TO THE EXTENT IT, IS CAPABLE OF BEING REGARDED AS EXPENDITURE IN RELATION TO PA RT OF THE BUSINESS INCOME FN THE NATURE OF DIVIDEND SHOULD NOT BE ADJUSTED AGAINST EXEMPTED DIVIDEND INCOME.' 1 2 . IT WAS AGREED BY BOTH THE SIDES THAT THIS ISSUE IS IDENTICAL FOR BOTH THE YEARS AND THE SAME CAN BE DECIDED ON THE SIMILAR LINE. IN ASSESSMENT YEAR 2006 - [ 8 ] 07, THIS ISSUE HAS BEEN DECIDED BY US IN PARA NO. 5 OF THIS ORDER AND THE DISALLOWANCE OF INTEREST WAS DELETED AND THE ISSUE REGARDING DISALLOWANCE OUT OF ADMINISTRATIVE EXPENSES HAS BEEN SET ASIDE TO THE FILE OF THE ASSESSING OFFICER FOR FRESH DECISION IN THE LIGHT OF THE TRIBUNAL DECISION RENDERED IN THE CASE OF YATISH TRADING CO.(P) LTD. (SUPRA). ON SIMILAR LINES, IN THE PRESENT YEAR ALSO, THIS ISSUE IS DECIDED IN THE SAME MANNER. IN THE PRESENT YEAR, THE AMOUNT OF DISALLOWANCE MADE BY THE ASSESSING OFFICER OUT OF INTEREST EXPENDITURE IS RS.21,816/ - AND THE BALANCE DISALLOWANCE OF RS.25,22,112/ - IS OUT OF ADMINISTRATIVE EXPENSES. HENCE, WE CONFIRM THE ORDER OF LEARNED CIT(A) REGARDING DELETION OF DISALLOWANCE RS.21,816/ - MADE BY THE ASSESSING OFFICER OUT OF INTEREST EXPENDITURE AND FOR THE REMAINING DISA LLOWANCE OF RS.25,22,112/ - , WE SET ASIDE THE ORDER OF LEARNED CIT(A) AND RESTORE THIS MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR FRESH DECISION IN THE LIGHT OF TRIBUNAL DECISION RENDERED IN THE CASE OF YATISH TRADING CO.(P) LTD. (SUPRA) WITH SAME DIRECTION AS HAS BEEN GIVEN BY US WHILE DECIDING THE APPEAL OF THE REVENUE FOR ASSESSMENT YEAR 2006 - 07. THIS GROUND OF THE APPEAL IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 1 3 . GROUND NO. 2 IS AS UNDER: 2. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS I N DELETING THE ADDITION OF RS.1,20,327/ - WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE PAID COMMISSION TO SIX PERSONS FROM WHOM NO CONFIRMATION OR PROOF OF RENDERING SERVICE HAS BEEN SUBMITTED BEFORE THE ASSESSING OFFICER. 1 4 . REGARDING THIS GROUND ALSO, IT WAS AGREED BY BOTH THE SIDES THAT THE ISSUE AND FACTS ARE IDENTICAL IN THIS YEAR ALSO AND THE SAME CAN BE DECIDED ON SIMILAR LINES. IN THIS YEAR ALSO, IT IS NOTED BY ASSESSING OFFICER ON PAGE 2 OF THE ASSESSMENT ORDER THAT CO MMISSION OF RS.1,20,327/ - WAS PAID TO SIX PERSONS FROM WHOM NO CONFIRMATION OR PROOF OF RENDERING SERVICES HAS BEEN SUBMITTED. HENCE, IN THIS YEAR ALSO , WE DECIDE THIS ISSUE ON SIMILAR LINES AS HAS BEEN DECIDED [ 9 ] BY US IN ASSESSMENT YEAR 2006 - 2007 AS PER PA RA NO. 8 OF THIS ORDER. ACCORDINGLY, THIS GROUND IS ALLOWED. 1 5 . GROUND NO. 3 IS AS UNDER: 3. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.1,10,475/ - WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAS PURCHASED/RECEIVED THE VEHICLE ON LAST DAY OF FINANCIAL YEAR AND ITS REGISTRATION WAS DONE IN THE NEXT FINANCIAL YEAR AND ASSESSEE ITSELF ACCEPTED DURING THE COURSE OF ASSESSMENT PROCEEDING THAT THE DEPRECIATION MAY BE DISALLOWED. 1 6 . LEARNED D.R. OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER WHEREAS THE LEARNED A.R. OF THE ASSESSEE SUPPORTED THE ORDER OF LEARNED CIT ( A). A QUERY WAS RAISED BY THE BENCH REGARDING THE PROOF OF DELIVERY ON 31/01/2007. IN REPLY, IT WAS SUBMITTED BY LEARN ED A.R. THAT THE SAME IS NOT READILY AVAILABLE AND HENCE, THE MATTER MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO VERIFY THE SAME AND THEN DECIDE THE ISSUE AFRESH . 1 7 . WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSED THE MATE RIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THIS ISSUE HAS BEEN DECIDED BY LEARNED CIT(A) BY FOLLOWING THE JUDGMENT OF HON'BLE CALCUTTA HIGH COURT RENDERED IN THE CASE OF CIT VS. NORPLEX OAK INDIA [2011] 198 TAXMAN 470. BEFORE US, THE ASSESSEE HAS PLACED RELIANCE ON THE JUDGMENT OF HON'BLE ALLAHABAD HIGH COURT RENDERED IN THE CASE OF ANIL BULK CARRIERS P. LTD. VS COMMISSIONER OF INCOME - TAX 276 ITR 625 (ALL) . IN THIS CASE, IT WAS HELD BY HON'BLE ALLAHABAD HIG H COURT THAT IF THE OIL TANKERS WERE TAKEN DELIVERY BY THE ASSESSEE THEN THE ASSESSEE IS ENTITLED TO THE DE PRECIATION IF THE REGISTRATION IS IN ASSESSEES NAME ON THE FIRST DAY OF THE NEXT YEAR. HENCE, IN OUR CONSIDERED OPINION, IF THE ASSESSEE ESTABLISHE S THIS FACT THAT THE ASSESSEE RECEIVED THE DELIVERY OF THE VEHICLE ON 31/03/2007 AND GOT IT REGISTERED IN HIS [ 10 ] NAME ON THE FIRST DAY OF THE NEXT YEAR THEN THE ASSESSEE IS ELIGIBLE FOR DEPRECIATION EVEN IF THE SAME WAS REGISTERED IN THE NEXT YEAR BUT SINCE T HIS FACT IS NOT VERIFIABLE FROM THE RECORD AND NO FINDING IS AVAILABLE, WE SET ASIDE THE ORDER OF LEARNED CIT(A) ON THIS ISSUE AND RESTORE THE MATTER TO THE ASSESSING OFFICER FOR FRESH DECISION. WE WOULD LIKE TO MAKE IT CLEAR THAT THE BURDEN IS ON THE ASS ESSEE TO FURNISH THE PROOF OF DELIVERY OF VEHICLE ON 31/03/2007 AND THEREAFTER , THE ASSESSING OFFICER SHOULD PASS NECESSARY ORDER AS PER LAW. THIS GROUND OF APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 1 8 . AS A RESULT, THE APPEAL OF THE REVENUE IS PARTLY ALLOWED IN THE TERMS INDICATED ABOVE. 1 9 . IN THE COMBINED RESULT, BOTH THE APPEALS OF THE REVENUE ARE PARTLY ALLOWED IN THE TERMS INDICATED ABOVE. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 2 3 R D DAY OF DECEMBER,2013 . *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T. ASSTT. REGISTRAR