DCIT, Cochin V. Muthoot Leasing & Finance Ltd, Cochin

MA 123/COCH/2009

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 7356 (ITAT-COCHIN)
• Duration Of Justice: 2 year(s) 4 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-12-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 02-12-2011
• Assessment Year: misc
• Appeal Filed On: 28-07-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIJAYAPRABHA
• Assessee Lawyers: A S NARAYANAMOORTHY
• Keywords: Reopening of assessment; Depreciation; Question of law; Tax effect
• Section: 143(3); 147

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S.GANESAN (JM) & SHRI SANJAY ARORA (AM) M.P. NO.123/COCH/20 09 (ARISING OUT OF I.T.A.NO.466/COCH/2007) ASSESSMENT YEAR:200 2 - 0 3 DCIT, CIR.2(1), ERNAKULAM VS. MUTHOOT LEASING & FINANCE LTD, KURIAN TOWERS, BANERJI ROAD COCHIN-18 (APPLICANT) (RESPONDENT) APPELLANT BY MS. VIJAYAPRABHA, JR DR RESPONDENT BY SHRI A.S. NARAYANAMOORTHY DATE OF HEARING 0 2 - 12 - 2011 DATE OF PRONOUNCEMENT 2 2 - 12 - 2011 O R D E R PER N.R.S. GANESAN (JM) THE REVENUE HAS FILED THE PRESENT MISCELLANEOUS AP PLICATION ALLEGING THAT THERE IS AN ERROR IN THE ORDER OF THE TRIBUNAL DATED 20-03- 2009. 2 2. MS. VIJAYAPRABHA, THE LD.DR SUBMITTED THAT THE T RIBUNAL DISMISSED THE APPEAL OF THE REVENUE ON THE GROUND T HAT THE TAX EFFECT IN THIS APPEAL IS LESS THAN RS.2 LAKHS, THEREFORE, THE APPEAL OF THE REVENUE IS NOT MAINTAINABLE. REFERRING TO THE MERI T OF GROUNDS OF APPEAL RAISED BY THE REVENUE, THE LD.DR SUBMITTED T HAT THERE IS QUESTION OF LAW ARISING FOR CONSIDERATION WITH REGA RD TO GROUND NO.3 RAISED BY THE REVENUE. MERELY BECAUSE NO ORDER WAS PASSED U/S 143(3) OF THE INCOME-TAX ACT, IT DOES NOT MEAN THAT THE ASSESSMENT CANNOT BE REOPENED U/S 147 OF THE ACT. ACCORDING T O THE LD.DR, EVEN THOUGH NO ASSESSMENT ORDER WAS PASSED U/S 143(3), T HE ASSESSMENT CAN BE REOPENED SINCE THE CONDITIONS FOR REOPENING OF ASSESSMENT HAS BEEN COMPLIED WITH. ON A QUERY FROM THE BENCH WHAT IS THE MERIT INVOLVED IN THIS APPEAL, THE LD.DR SUBMITTED THAT T HE POINT FOR CONSIDERATION WAS WHETHER THE ASSESSEE IS ENTITLED TO DEPRECIATION @40% OR @20% ON THE COMMERCIAL VEHICLE. 3. ON THE CONTRARY, SHRI AS NARAYANAMURTHY, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO QUESTION OF LAW IS INVOL VED IN THE APPEAL. AFTER REOPENING OF THE ASSESSMENT, WHAT WAS TO BE C ONSIDERED WAS THE ISSUE OF DEPRECIATION AS TO WHETHER THE ASSESSEE WA S ENTITLED TO DEPRECIATION @40% OR @20% WHICH IS ONLY A QUESTION OF FACT AND NOT QUESTION OF LAW. THEREFORE, ACCORDING TO THE LD.CO UNSEL, THERE IS NO MERIT IN THE CONTENTION OF THE LD.DR. 4. WE HAVE CONSIDERED THE SUBMISSIONS ON EITHER SID E AND HAVE ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. NO DOUBT, WHEN A QUESTION OF LAW ARISES FOR CONSIDERATION BEFORE THE TRIBUNAL, THE MONETARY LIMITS PRESCRIBED BY THE CBDT FOR FILING T HE APPEAL BEFORE THIS TRIBUNAL MAY NOT BE APPLICABLE. THE REVENUE H AD RAISED TWO ISSUES IN THE APPEAL. THE FIRST GROUND OF APPEAL I S WITH REGARD TO DEPRECIATION ON COMMERCIAL VEHICLE AND THE SECOND G ROUND IS WITH 3 REGARD TO REOPENING OF ASSESSMENT U/S 147 OF THE AC T. IF THE REOPENING OF THE ASSESSMENT IS FOUND TO BE VALID, T HEN WHAT IS TO BE CONSIDERED IS ONLY DEPRECIATION. AS RIGHTLY POINTE D OUT BY THE LD.COUNSEL FOR THE ASSESSEE, THE RATE OF DEPRECIATI ON DEPENDS UPON THE FACTS OF EACH CASE. NO QUESTION OF LAW IS INVOLVED IN APPLYING THE RATE OF DEPRECIATION. IN OTHER WORDS, WHETHER THE VEHIC LE IS A COMMERCIAL VEHICLE OR NOT NEEDS TO BE APPRECIATED ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD. THEREFORE, THIS TRIBUNAL IS O F THE CONSIDERED OPINION THAT NO QUESTION OF LAW ARISES FOR CONSIDER ATION IN FINDING WHETHER A VEHICLE IS COMMERCIAL VEHICLE OR NOT. AC CORDINGLY, WE DO NOT FIND ANY MERIT IN THE CONTENTION OF THE LD.DR. 5. THE MISCELLANEOUS APPLICATION FILED BY THE REVEN UE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND DECEMBER, 2011 SD/- SD/- (SANJAY ARORA) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER ERNAKULAM, DT : 22 ND DECEMBER, 2011 PK/- COPY FORWARDED TO: 1. THE DY.CIT, CIR.2(1), ERNAKULAM 2. MUTHOOT LEASING & FINANCE LTD, KURIAN TOWERS, BANER JI ROAD, CHOCHIN-18 3. THE COMMISSIONER OF INCOME-TAX(A)-I, TRIVANDRUM 4. THE COMMISSIONER OF INCOME-TAX, TRIVANDRUM 5. THE DR (TRUE COPY) BY ORDER ASSTT.REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL , COCHIN