Y.S. Sane & Co., V. ACIT,Cir.5,

MA 92/PUN/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5034 (ITAT-PUNE)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-09-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2004-2005
• Appeal Filed On: 09-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHAY DAMLE
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI I.C.SUDHIR JM AND SHRI D. KARUNAKARA RA O AM M.A. NO. 92/PN/2010 (ARISING OUT OF ITA NO. 1060/PN/07) (ASSTT. YEAR : 2004-05) M/S. Y.S. SANE & CO., PUNE APPLICANT 6, AGARKAR BHAVAN, LAL BAHADUR SHASTRI ROAD, PUNE 411 030 PAN : AAAFY 0884E VS. ASST. COMMISSIONER OF INCOME TAX RESPONDENT CIRCLE -5, PUNE APPLICANT BY : NONE RESPONDENT BY : SHRI ABHAY DAMLE ORDER PER I.C. SUDHIR JM HAVING GONE THROUGH THE CONTENTS OF THE APPLICATIO N, WE FIND THAT THE GRIEVANCES OF THE APPLICANT IS THAT THE TRIBUNAL HA S DECIDED THE ISSUE OF ALLOWABILITY OF VEHICLE MAINTENANCE EXPENSES AND DE PRECIATION CLAIMED BY THE ASSESSEE FOLLOWING ITS DECISION IN THE CASE OF ASSE SSEE ITSELF OF AN IDENTICAL ISSUE IN THE A.Y. 2003-04. HOWEVER, THE TRIBUNAL INSTEAD OF ALLOWING THE OBJECTIONS OF THE ASSESSEE IN THIS REGARD IN ITS CROSS OBJECTION, HAS DISMISSED THE SAME RESULTING IN MISTAKE APPARENT FROM RECORD IN THE OR DER IN PARA NO. 6 OF THE ORDER. 2. THE LD D.R., ON THE OTHER HAND, OPPOSED THE APPL ICATION. 3. HAVING GONE THROUGH THE ORDER OF THE TRIBUNAL, W E AGREE WITH THE ABOVE SUBMISSION OF THE APPLICANT. THE RELEVANT FACTS RE GARDING THE ISSUE OF ALLOWABILITY OF CLAIMED VEHICLE MAINTENANCE EXPENSE S AND DEPRECIATION ARE THAT THE A.O HAD MADE DISALLOWANCE OF 20% THEREOF ON THE BASIS OF POSSIBILITY OF PERSONAL USER OF THE VEHICLE. THE LD CIT(A) RESTRI CTED THE DISALLOWANCE FROM 20% TO 5%, AGAINST WHICH, PARTIES WERE IN APPEAL BE FORE THE TRIBUNAL. VIDE M.A. NO. 92/PN/10 (ARISING OUT OF ITA NO. 1060/PN/07) (A.Y. 2004-05) M/S. Y.S. SANE & CO., PUNE, , 2 GROUND NO. 2 OF THE APPEAL PREFERRED BY THE REVENUE , THE ACTION OF THE LD CIT(A) IN REDUCING THE DISALLOWANCE FROM 20% TO 5%, WAS QUESTIONED WHEREAS IN ITS CROSS OBJECTION VIDE OBJECTION NOS. 3 & 4 TH EREOF, THE ASSESSEE OBJECTED THE SUSTENANCE OF 5% DISALLOWANCE OUT OF THE CLAIME D EXPENSES AND DEPRECIATION BY THE LD CIT(A). THE TRIBUNAL HAS REJECTED GROUN D NO. 3 OF THE APPEAL PREFERRED BY THE REVENUE ON THE ISSUE FOLLOWING ITS DECISION IN THE CASE OF ASSESSEE ITSELF IN THIS REGARD, IN THE A.Y. 2003-04 WHEREIN SUCH ADHOC DISALLOWANCE OF EXPENDITURE AND DEPRECIATION WAS HE LD NOT JUSTIFIABLE (PARA NO. 4 OF THE ORDER). IN PARA NO. 6 OF THE ORDER OF THE T RIBUNAL, THE TRIBUNAL HAS, HOWEVER, INADVERTENTLY REJECTED THE CROSS OBJECTION OF THE ASSESSEE ON THE BASIS THAT IT IS ONLY IN SUPPORT OF THE FIRST APPEL LATE ORDER INSTEAD OF ALLOWING THE CROSS OBJECTION NOS. 3 & 4 IN FAVOUR OF THE ASSESS EE IN VIEW OF ITS FINDING IN PARA NO. 4 ON THE ISSUE. WE THUS FIND THAT THERE I S MISTAKE APPARENT FROM THE RECORD IN PARA NO.6 OF THE ORDER OF THE TRIBUNAL. WE RECTIFY THE SAME. AFTER SUCH RECTIFICATION, PARA NO.6 WILL BE READ AND UND ERSTOOD AS UNDER: 6. AS FAR AS THE CROSS OBJECTION OF THE ASSESSEE IS CONCERNED, IN OBJECTION NOS. 3 & 4, THE ASSESSEE HAS IMPUGNED FIR ST APPELLATE ORDER IN SUSTAINING OF DISALLOWANCE OF 5% OUT OF THE CLAIMED VEHICLE MAINTENANCE EXPENSES AND DEPRECIATION. WE FOLLOWING OUR FINDIN GS GIVEN ON IDENTICAL ISSUE IN PARA NO. 4 HEREINABOVE, ALLOW THESE OBJEC TIONS IN FAVOUR OF THE ASSESSEE WITH DIRECTION TO A.O TO DELETE THE DISALL OWANCE IN QUESTION. REMAINING OBJECTIONS ARE GENERAL IN NATURE, HENCE T HEY DO NOT NEED INDEPENDENT ADJUDICATION. 4. IN VIEW ABOVE FINDING, PARA NO.7 OF THE ORDER OF THE TRIBUNAL ALSO NEED RECTIFICATION WHICH, AFTER RECTIFICATION WILL BE RE AD AND UNDERSTOOD AS UNDER :- 7. IN THE RESULT, APPEAL PREFERRED BY THE R EVENUE IS DISMISSED AND CROSS OBJECTION IS ALLOWED 5. IN RESULT, MISCELLANEOUS APPLICATION IS ALLOWED. M.A. NO. 92/PN/10 (ARISING OUT OF ITA NO. 1060/PN/07) (A.Y. 2004-05) M/S. Y.S. SANE & CO., PUNE, , 3 ORDER PRONOUNCED ON 8TH SEPTEMBER, 2010 . SD/- SD/- (D. KARUNAKARA RAO) (I.C.SUDHIR) ACCOUNTANT MEMBER JUDICI AL MEMBER PUNE DATED THE 8TH SEPTEMBER , 2010 US COPY OF THE ORDER IS FORWARDED TO : 1. APPLICANT 2. RESPONDENT 3. CIT(A)-II, PUNE 4. CIT- III, PUNE 5. D.R. ITAT A BENCH 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, PUNE BENCHES, PUNE