PR. COMMISSIONER OF INCOME TAX, UDAIPUR vs. M/S SHIV SHAKTI AGENCY

Judgment / Order Per Hon'ble Mr. Justice Gopal Krishan Vyas 02/04/2018

In this appeal filed under Section 260A of the Income Tax Act, 1961, the judgment dated 4.1.2017 passed by the Income Tax Appellate Tribunal, Jodhpur Bench, Jodhpur in ITA No.372/Jodh/2016 for the assessment year 2009-10 is under challenged.

As per facts of the case, the respondent assessee submitted his return of income for the assessment year 2009-10 on 27.9.2009 declaring income of Rs.8,29,678/-. The assessment under Section 143(3) was completed on 23.12.2011. In case of respondent firm, the revenue audit raised minor audit objection that depreciation on auto loading and tata truck has been allowed

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@ 30% as against allowable @ 15% as it was used for its own business and not engaged in business of running them on hire/hiring. The assessing officer accepted the revenue objection and mistake was rectified by passing order under Section 154 dated 4.12.2012 whereby the depreciation of Rs.56,233/- instead of Rs.1,12,416/- was allowed. Being aggrieved by the rectification order passed under Section 154 of the Act of 1961, the assessee preferred an appeal No.438/IT/UDR/2013-14 before the CIT (A), who vide order dated 2.9.2016 dismissed the appeal of the assess and confirmed the action of AO.

Being aggrieved and dissatisfied with the order dated 2.9.2016 passed by the CIT (A) the assessee filed an appeal No.372/Jodh/2016 before the learned ITAT. The learned ITAT vide order dated 4.1.2017 allowed the appeal of the assessee and quashed the order passed under Section 154 of the Act of 1961 passed by the AO.

Being aggrieved and dissatisfied with the said order, the instant appeal has been filed.

Learned counsel for the appellant submits that no error was committed by the assessing officer or CIT (A) because valid audit was raised upon which depreciation of Rs.56,233/- was allowed instead of Rs.1,12,416/- and therefore, the order impugned passed by the learned ITAT deserves to be quashed.

After hearing learned counsel for the appellant, we have perused the order impugned in which the learned ITAT after considering all arguments rendered the judgment and held that the assessee is having two vehicles which were purchased and (3 of 3) [ITA-21/2017]

used only for the transportation and against the said service assessee firm charged transportation charges from customers in their sale bills as it is evident from the ledger account submitted that transport outward and inward have been maintained commonly and net balance of Rs.4,48,172/- has been shown in profit and loss account as an expense. In view of the above, the assessee is justified in charging the depreciation as claimed because no mistake has been pointed out by the AO himself and as per Section 154(2) of the Act the income tax authority can rectify the mistake apparent from the records on its own and in this case, the order has been passed under Section 154 rectifying the mistake on the basis of objection by the audit party which is not an income tax authority as per law.

In our opinion, no error has been committed by the learned ITAT, therefore, no substantial question of law emerges for consideration.

Consequently, the instant income tax appeal is hereby dismissed.

(RAMCHANDRA SINGH JHALA) J. (GOPAL KRISHAN VYAS) J.

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