Shri Ashwani Shrivastava, Jabalpur V. A.C.I.T, Jabalpur

ITSSA 1/JAB/2012

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 0070 (ITAT-JABALPUR)
• Duration Of Justice: 1 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 28-03-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2004-2005
• Appeal Filed On: 09-11-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K K UPADHYAYA
• Assessee Lawyers: R C BARDIA
• Keywords: Depreciation; Earning of tax free income
• Section: 32

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, JABALPUR BENCH, JABALPUR BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER IT(SS)A NOS. 01 TO 05/JAB./2012 ASST. YEARS : 2004-05, 2005-06,2006-07,2007-08 & 20 08-09 ASHWANI SRIVASTAVA, VS. A.C.I.T., CIRCLE 1(1), 1190A, PACHPEDHI, JABALPUR. JABALPUR. (PAN: AMXPS 6011 Q) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R.C. BARDIA, C.A. RESPONDENT BY : SHRI K.K. UPADHYAYA, DR DATE OF HEARING : 26.03.2004 DATE OF PRONOUNCEMENT : 28.03.2004 ORDER PER BHAVNESH SAINI, J.M.: ALL THESE APPEALS BY THE ASSESSEE ARE DIRECTED AG AINST THE COMMON ORDER OF LD. CIT(A), JABALPUR DATED 17.01.2012 FOR THE ASSES SMENT YEARS 2004-05, 2005-06, 2006-07, 2007-08 AND 2008-09, CHALLENGING THE ORDER OF THE LD. CIT(A) IN CONFIRMING THE DISALLOWANCE OF DEPRECIATION ON CAR. 2. THE BRIEF FACTS OF THE CASE ARE THAT SEARCH AND SURVEY OPERATION U/S. 132(1) OF THE IT ACT WAS CARRIED OUT AT THE RESIDENTIAL PREMI SES AT PACHPEDHI, JABALPUR ON IT(SS)A NOS.01 TO 05/JAB./2012 2 31.05.2008. THE ASSESSEE DERIVES INCOME FROM SHARES , INTEREST AND SALARY FROM TWO PARTNERSHIP FIRMS, I.E., M/S. ARJIT CONSTRUCTION AN D J.N. EARTHMOVERS. THE ASSESSMENTS WERE COMPLETED U/S. 153A/143(3) OF THE IT ACT. THE AO IN ALL THE ASSESSMENT YEARS DISALLOWED THE CLAIM OF DEPRECIATI ON AMOUNTING TO RS.1,41,515/-, RS.1,94,896/-, RS.67,398/-, RS.1,20,250/- AND RS.1, 02,212/- RESPECTIVELY FOR THE REASONS THAT THE ASSESSEES SOURCE OF INCOME ARE FR OM SHARE PROFITS, INTEREST AND SALARY FROM PARTNERSHIP FIRMS. SINCE THE SHARE PROF IT IS EXEMPT, NO DEDUCTION IS ALLOWABLE UNDER THE SAID INCOME. IT WAS FURTHER NOT ICED THAT NO EVIDENCE WAS BROUGHT ON RECORD THAT THE ASSESSEE HAS, IN FACT, U SED HIS PERSONAL VEHICLE TO EARN ANY INCOME FROM BUSINESS OR PROFESSION OTHER THAN S ALARY AND INTEREST ON CAPITAL FROM THE FIRMS. THE CLAIM OF DEPRECIATION WAS, THER EFORE, DISALLOWED. THE ASSESSEE SUBMITTED BEFORE THE LD. CIT(A) THAT BOTH THE FIRMS OF THE ASSESSEE ARE ENGAGED IN CIVIL CONSTRUCTION WORK CARRIED OUT IN REMOTE PLACE S OF JABALPUR. THE ASSESSEE USED HIS OWN VEHICLE FOR LOOKING AFTER THE WORK OF THE P ARTNERSHIP FIRMS. INTEREST AND REMUNERATION FROM THE FIRMS IS ASSESSED UNDER BUSIN ESS INCOME. HE HAS RELIED UPON THE ORDER OF ITAT, MUMBAI BENCH IN THE CASE OF HOSH ANG D NANAVATI VS. ACIT IN ITA NO. 3567/MUM/07. IT(SS)A NOS.01 TO 05/JAB./2012 3 3. THE LD. CIT(A) DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE BECAUSE THE SHARE PROFIT IS EXEMPT AND NO DEDUCTION IS ALLOWABL E AGAINST SUCH INCOME. FURTHER NO EVIDENCE WAS PLACED ON RECORD TO ASCERTAIN THAT THE ASSESSEE USED HIS PERSONAL VEHICLE TO EARN INCOME FROM BUSINESS OR PROFESSION. THE ORDER OF THE MUMBAI BENCH WAS FOUND DISTINGUISHABLE ON FACTS AND ACCORD INGLY, ALL THE APPEALS OF THE ASSESSEE WERE DISMISSED. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND DO NOT FIND ANY MERIT IN ALL THE APPEALS OF THE ASSESSEE. IT IS NOT IN DISPUTE T HAT SHARE PROFIT IS EXEMPT INCOME. THEREFORE, NO DEDUCTION IS ADMISSIBLE AGAINST SAID INCOME. FURTHER, THE ASSESSEE DID NOT PLACE ANY EVIDENCE ON RECORD TO PROVE THAT PERSONAL VEHICLE WAS USED TO EARN ANY INCOME FROM BUSINESS OR PROFESSION. THE LD . COUNSEL FOR THE ASSESSEE DURING THE COURSE OF ARGUMENTS SUBMITTED THAT HE MA Y BE ALLOWED TO PLACE ON RECORD OF THE AO THE BILLS OF FUEL ETC. TO SHOW THA T THE ASSESSEE USED HIS OWN VEHICLE FOR THE BUSINESS OF THE FIRMS, IN WHICH HE IS PARTNER. IT WOULD SHOW THAT NO EVIDENCE WAS PLACED ON RECORD OF THE AO TO CLAIM DE PRECIATION. EVEN NO EVIDENCE IS PLACED BEFORE US TO SUPPORT THE CLAIM OF DEPRECI ATION. ACCORDING TO SECTION 32 OF THE IT ACT, THE DEPRECIATION IS ALLOWABLE WHEN THE ASSESSEE PROVES THAT THE VEHICLE WAS USED FOR THE PURPOSE OF BUSINESS OR PROFESSION. IN THE ABSENCE OF ANY EVIDENCE IT(SS)A NOS.01 TO 05/JAB./2012 4 ON RECORD, WE DO NOT INTEND TO INTERFERE WITH THE O RDERS OF THE AUTHORITIES BELOW. THE LD. CIT(A) IN VIEW OF THE ABOVE CORRECTLY FOUND THAT THE DECISION OF MUMBAI BENCH ABOVE IS CLEARLY DISTINGUISHABLE ON FACTS. TH E APPEALS OF THE ASSESSEE HAVE NO MERIT AND ARE ACCORDINGLY DISMISSED. 5. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE A RE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (T.S. KAPOOR) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, JABALPUR 6. GUARD FILE SR. PRIVATE SECRETARY ITAT, CAMP AT JABALPUR