ACIT, Ajmer V. SHRI DINESH CHAUDHARY, Ajmer

MA 28/JPR/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3249 (ITAT-JAIPUR)
• Duration Of Justice: 1 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-06-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 24-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D C SHARMA
• Keywords: Depreciation; Tax effect
• Section: 143(3); 154

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH VH-VKJ-EHUK] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM M.A. NO. 28/JP/2015 (ARISING OUT OF I.T.A. NO. 874/JP/2012) ASSTT. YEAR-2007-08 ASSISTANT COMMISSIONER OF INCOME TAX, CICLE-2, AJMER. CUKE VS. DINESH CHOUDHARY, PROP- M/S BALAJI CONSTRUCTION, C-186, CHANDRAVARDAI NAGAR, BEAWAR ROAD, AJMER. LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO.: ADOPC 4804 F VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT JKTLO DH VKSJ LS @ REVENUE BY : SHRI D.C. SHARMA (ADDL.CIT) FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : NONE (A.D. ON RECORD) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 05/06/2015 ?KKS'K .KK DH RKJH[ K @ DATE OF PRONOUNCEMENT : 05/06/2015 VKNS'K @ ORDER PER: T.R. MEENA, A.M. THE REVENUE HAS FILED THIS M.A. U/S 254(2) OF THE I NCOME TAX ACT, 1961 (IN SHORT THE ACT) AGAINST THE ORDER OF THIS BENCH OF ITAT, JAIPUR IN ITA NO. 874/JP/2012 FOR A.Y. 2007-08, WHICH WAS P ASSED ON 05/12/2014. MA 28/JP/2015 ACIT VS. DINESH CHOUDHARY 2 2. IT IS SUBMITTED BY THE ASSESSING OFFICER THAT TH E HONBLE ITAT HAD DECIDED THE APPEAL BY CONSIDERING THE TAX EFFECT LI MIT AND CBDT INSTRUCTION NO. 5/2014 DATED 10/7/2014 HAS NOT FULL Y ANALYSED/APPLIED. AS PER ASSESSING OFFICER, THE HONBLE ITAT WAS NOT JU STIFIED IN DISMISSING THE APPEAL FILED BY THE DEPARTMENT WITHOU T APPRECIATING THE FACT THAT THE DEPARTMENT HAD FILED THE APPEAL IN VI EW OF PARA 8C OF THE THEN APPLICABLE INSTRUCTION NO. 5/2014 DATED 10/7/2 014. THOUGH THE TAX EFFECT INVOLVED WAS BELOW THE PRESCRIBED MONETORY LIM IT. THE FACTS IN THIS CASE WAS THAT THE ASSESSEE CLAIMED DEPRECIATION ON JCB MACHINE FOR THE A.Y. 2007-08, WHICH WAS REGISTERED ON 03/4/20 07. AS PER ASSESSING OFFICER, THE ASSESSEE HAS CLAIMED EXCESS DEPRECIATION ON JCB BY RS. 1,56,544/- ON THE BASIS OF USE OF JCB IN THE PREVIOUS YEAR RELEVANT TO ASSESSMENT YEAR 2007-08. THE ORDER OF TH E ASSESSING OFFICER PASSED U/S 143(3) OF THE ACT DATED 22/12/2009 HAD B EEN RECTIFIED U/S 154 OF THE ACT ON 17/02/2011 AND ASSESSING OFFICER WITHDRAWN THE EXCESS DEPRECIATION OF RS. 1,56,544/-. THE ASSESSEE CHALLENGED THE DISALLOWANCES MADE BY THE ASSESSING OFFICER BEFORE T HE LD CIT(A) WHO HAD ALLOWED THE APPEAL BY CONSIDERING THE HON'BLE SU PREME COURT DECISION IN THE CASE OF MYSORE MINERALS LTD. VS. CI T 106 TAXMAN 166 MA 28/JP/2015 ACIT VS. DINESH CHOUDHARY 3 (SC). THE REVENUE CHALLENGED THIS ISSUE BEFORE THE I TAT, WHICH HAS BEEN DISMISSED ON THE BASIS OF TAX EFFECT INVOLVED IN THE APPEAL. 3. AFTER CONSIDERING THE ARGUMENTS OF THE LD DR, IT IS FOUND THAT THIS EXCEPTIONAL CLAUSE OF PARA 8C OF INSTRUCTION NO. 5/ 2014 DATED 10/07/2014 HAD NOT BEEN BROUGHT IN THE NOTICE OF TH E BENCH. THEREFORE, WE DO HAVE ANY POWER TO REVIEW U/S 254(2) OF THE ACT. ACCORDINGLY WE DISMISS THE REVENUES M.A. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 05/06/2015. SD/- SD/- VKJ-IH-RKSYKUH VH-VKJ-EHUK (R.P.TOLANI) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ @ JAIPUR FNUKAD @ DATED:- 05 TH JUNE, 2015 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI DINESH CHOUDHARY, AJMER. 2. IZR;FKHZ @ THE RESPONDENT- 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (M.A. 28/JP/2015) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR