SHRI ARJUN SINGH , KOTA V. ASSISTANT COMMISSIONER OF INCOME TAX, KOTA

MA 147/JPR/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5688 (ITAT-JAIPUR)
• Duration Of Justice: 6 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 02-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: D D AGARWAL
• Keywords: Depreciation

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM MA NO. 147/JP/2018 (ARISING OUT OF ITA NO. 317/JP/2018 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2009-10 SHRI ARJUN SINGH S/O TARA SINGH BEHIND KOHLI MEDICAL STORE, KESHAVPURA, KOTA. CUKE VS. THE ACIT, CIRCLE, KOTA. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AFRPS 7075 K VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI D.D. AGARWAL (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SMT. NEENA JEPH (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 03/05/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 13/05/2019 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. BY WAY OF THIS MISCELLANEOUS APPLICATION THE ASSES SEE IS SEEKING RECALLING THE ORDER OF TRIBUNAL DATED 06.06.2018 FO R THE ASSESSMENT YEAR 2009-10 WHEREBY THE APPEAL OF THE ASSESSEE WAS DISM ISSED EX-PARTE BUT ON MERITS. MA NO. 147/JP/2018 SHRI ARJUN SINGH. VS. ACIT 2 2. THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT ON THE DATE OF HEARING ON 04.06.2018 THE ASSESSEE SENT ADJOURNMENT LETTER ON 01.06.2018 A COPY WHICH HAS BEEN FILED ALONG WITH A FFIDAVIT. HOWEVER THE SAID LETTER WAS NOT PLACED BEFORE THE BENCH, TH EREFORE, THE APPEAL OF THE ASSESSEE WAS HEARD AND DISPOSED OFF EX-PARTE. H E HAS FURTHER SUBMITTED THAT ONLY ISSUE IN THE APPEAL OF THE ASSE SSEE IS REGARDING HIGHER RATE OF DEPRECIATION ON DUMPERS, TRUCKS, EXC AVATOR/JCB ETC. WHICH WAS DISALLOWED BY THE AO AS WELL AS LD. CIT(A ) WITHOUT CONSIDERING THE FACT THAT THE ASSESSEE HAS RECEIVED HIRE CHARGES FROM THE MAIN CONTRACTOR FOR GIVING THESE VEHICLES AND M ACHINERY ON HIRE. THEREFORE, THE DISALLOWANCE MADE BY THE AUTHORITIES BELOW IS NOT BASED ON THE CORRECT FACTS. SINCE, THE ASSESSEE COULD NOT PRODUCE THESE RECORDS BEFORE THIS TRIBUNAL ON THE DATE OF HEARING BUT SOUGHT ADJOURNMENT, THEREFORE, THE TRIBUNAL HAS ALSO NOT C ONSIDERED CRUCIAL FACTS ON THE ISSUE. THE LD. AR THUS SUBMITTED THAT THE IMPUGNED ORDER MAY BE RECALLED AND THE ASSESSEE MAY BE GIVEN AN OP PORTUNITY TO THE PRESENT ITS CASE AND TO SATISFY THE TRIBUNAL THAT T HE VEHICLE AND MACHINERY IN QUESTION WERE GIVEN ON HIRE AND THE AS SESSEE HAS ALSO RECEIVED INCOME FROM HIRE CHARGES. MA NO. 147/JP/2018 SHRI ARJUN SINGH. VS. ACIT 3 3. ON THE OTHER HAND, THE LD. DR HAS VEHEMENTLY O PPOSED TO THE MISCELLANEOUS APPLICATION AND SUBMITTED THAT THE CO NDUCT OF THE ASSESSEE RIGHT FROM THE ASSESSMENT PROCEEDING UPTO THE TRIBUNAL IS NOT APPRECIABLE AS THE ASSESSEE DID NOT APPEAR BEFORE A NY OF THE AUTHORITIES. EVEN THE IMPUGNED ORDER HAS NARRATED T HE FACT THAT DESPITE THE NOTICES ISSUED THROUGH RPAD ON VARIOUS OCCASION S NONE HAD APPEARED ON BEHALF OF THE ASSESSEE. THE TRIBUNAL HA S DECIDED THE APPEAL ON MERITS AND THEREFORE, IT IS NOT APPARENT MISTAKE WHICH CAN BE RECTIFIED U/S 254(2) OF THE ACT. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS RELEVANT MATERIAL ON RECORD. WE FIND THAT THE ASSESSMENT WAS REOPENED BY THE AO TO DISALLOW THE CLAIM OF HIGHER DEPRECIATION AS THE ASSESSEE HAS NOT SHOWN INCOME FROM HIRE CHARGES ON DUMPERS, EXCAVATO R OR JCB. THEREFORE, THIS WAS THE ONLY ISSUE IN THE REASSESSM ENT PROCEEDING AND THE ASSESSEE WAS EXPECTED TO PRODUCE RELEVANT DOCUM ENTARY EVIDENCE TO SHOW THAT THE ASSESSEE HAS GIVEN THESE VEHICLES ON HIRE AND EARNED THE INCOME FROM HIRE CHARGES DURING THE YEAR UNDER CONSIDERATION. THE TRIBUNAL WHILE PASSING THE IMPUGNED ORDER DATED 06. 06.2018 HAS NOTED THAT DESPITE REPEATED NOTICES NOBODY APPEARED ON BE HALF OF THE ASSESEE AND THEREFORE, THE TRIBUNAL PROPOSED TO HEAR AND DI SPOSED OFF THE MA NO. 147/JP/2018 SHRI ARJUN SINGH. VS. ACIT 4 APPEAL EX-PARTE. NOW THE ASSESSEE HAS PRODUCED CERT AIN RECORDS TO SHOW THAT THE INCOME DECLARED BY THE ASSESSEE INCLU DES HIRE CHARGES IN RESPECT OF THE VEHICLE DUMPERS, EXCAVATOR OR JCB ET C. SINCE, THIS RECORD WAS NOT FILED BEFORE THE TRIBUNAL EARLIER, THEREFOR E, THE APPEAL OF THE ASSESSEE WAS HEARD AND DISPOSED OF EX-PARTE. WE ARE OF THE CONSIDERED OPINION THAT THE FACTUAL ASPECT WHETHER THE ASSESSE E HAS RECEIVED ANY INCOME FROM HIRE CHARGES IS VERY CRUCIAL FOR DECIDI NG THE ISSUE OF CLAIM OF HIGHER DEPRECIATION ON THESE MACHINERY AND VEHIC LE. THOUGH THE CONDUCT OF THE ASSESSEE AFTER FILING THE APPEAL WAS SINCERE HOWEVER, IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF JUSTICE WE GRANT ONE MORE OPPORTUNITY TO THE ASSESSEE SUBJECT TO COST OF RS. 5000/-. ACCORDINGLY, THE IMPUGNED ORDER DATED 06.06 .2018 OF THE TRIBUNAL IS RECALLED AND THE APPEAL OF THE ASSESSEE IS DIRECTED TO BE HEARD AND DECIDED AFRESH. THE REGISTRY IS DIRECTED TO LIST THE APPEAL OF THE ASSESSEE FOR FRESH HEARING ON 26.06.2019. SINCE , THE DATE OF THE HEARING OF THE APPEAL HAS BEEN ANNOUNCED IN OPEN CO URT AND THE SAME HAS BEEN NOTED BY THE PARTIES, THEREFORE, NO SEPARA TE NOTICE SHALL BE ISSUED IN THIS REGARD. MA NO. 147/JP/2018 SHRI ARJUN SINGH. VS. ACIT 5 IN THE RESULT, THE MISCELLANEOUS APPLICATION IS AL LOWED SUBJECT TO COST. ORDER PRONOUNCED IN THE OPEN COURT ON 13/05/2019. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 13/05/2019. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI ARJUN SINGH, KOTA. 2. IZR;FKHZ@ THE RESPONDENT- ACIT, CIRCLE, KOTA. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {M.A. NO. 147/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR