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Income Tax Appellate Tribunal, KOLKATA BENCH ‘C’, KOLKATA
Before: Shri M. Balaganesh, A.M. & Shri S.S.Viswanethra Ravi, J.M.)
ORDER Per Shri S.S.Viswanethra Ravi, J.M. This appeal is preferred by the Revenue against the order dated 10.05.2012 passed by the CIT(Appeals)-VIII, Kolkata in Appeal No.140/CIT(A)-VIII/Kol/11-12 for the assessment year 2009-10 framed under section 143(3) of the I.T.Act.
The assessee has raised the following ground before us.
1. That under the facts and circumstances of the case, the Ld. CIT(Appeals) has erred in law and on fact in deleting the disallowance made by the A.O. of Rs.90,66,741 under the Income-tax Act, 1961.”
Brief facts of the case are that the assessee is a domestic company. The assessee’s business is stevedoring, clearing and forwarding. During the course of assessment proceedings, it was observed by the AO that the assessee claimed depreciation at 30% on the block of assets i.e. tippers and dumpers. The A.R. claimed that the M/s. Repley Company Stevedoring & Handling Pvt. Ltd. Assessment Year: 2009-10 assessee is using the vehicles for its own business and transportation of goods on hire. The AO took a view that in terms of a circular no.652 dated 14.06.1993 issued by the C.B.D.T. which provides higher rate of depreciation only for motor buses and motor lorries. Thereby, he disallowed the depreciation at 30% but however restricted the depreciation at 15% treating the block assets of the assessee as plant and machinery.
3.1 Before the ld. CIT(A), the assessee contended that the vehicles were used by the assessee in two capacities i.e. transportation of goods for his own purpose and transportation of goods on hire. To be clear for clarity, the transportation of goods during the course of contract, work taken for purposes of transportation of certain products to various companies, the ld. CIT(A) also considered the earlier orders passed by his predecessor for assessment year 2005-06 dated 11.04.2008, 2006-07 dated 26.06.2009 and for assessment year 2008-09 dated 24.11.2011, thereby while considering the above orders, the ld. CIT(A) directed the AO to allow depreciation at 30%.
3.2 The ld. CIT(A) deleted the addition while considering of his predecessors and also his own decision rendered in the case of M/s. Repley & Company on the identical issue wherein it had been held that the business of the assessee qualifies the claim of higher depreciation on motor vehicles. The ld. CIT(A) also observed that the facts of the case laws relied upon by the AO in the assessment order are distinguishable from that of the assessee’s case.
Though the batch of two appeals being filed by the Revenue, the ld. Counsel submitted that the ground raised
by the Revenue is covered by an order dated 10.01.2011 in of 2010 of the Hon’ble M/s. Repley Company Stevedoring & Handling Pvt. Ltd. Assessment Year: 2009
10. Jurisdictional High Court at Calcutta for assessment year 2006-07 wherein it held that the ITAT rightly held that the assessee was entitled to the benefit of circular no.652 dated 14.06.1993. The relevant portion of the above order is reproduced below. “…. the assessee was entitled to the benefit because of the fact that the assessee was using the vehicles in both the capacities, that is to say, business for transportation of goods on hire as well as transportation of goods. It was also pointed out that in the past for the assessment years 2005- 2006 and 2004-2005, the learned C.I.T.(A) held that the assessee had the business of transportation of goods on hiere as well as transporting other goods and, as such, was entitled to higher rate of depreciation as per the said Circular No.652. It appears that the Revenue did not challenge those decisions.
We, therefore, find that in the facts of the present case, the learned Appellate Tribunal rightly held that the assessee was entitled to the benefit of Circular No.652. No substantial question of law being involved, we dismiss this appeal.”
4.1 Further, the ld. Counsel submitted before us that the Revenue did not prefer any appeal before the Apex Court and the ld. DR also conceded the same. Hence, the Judgment on ground no.1 of the Hon’ble Jurisdictional High Court at Calcutta has become final and binding on us. By respectfully following the judgment mentioned (supra), we confirm the order of the ld. CIT(A) regarding the ground no.1 and dismiss the ground against the Revenue.
In the result, the appeal filed by the Revenue is dismissed. Order Pronounced in the Open Court on 4th December, 2015. Sd/- Sd/- (M. Balaganesh) (S.S.Viswanethra Ravi) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated:04/12/2015 Talukdar/Sr.PS M/s. Repley Company Stevedoring & Handling Pvt. Ltd. Assessment Year: 2009-10 Copy of order forwarded to:
1 M/s. Repley Company Stevedoring & Handling Pvt. Ltd., Block-C, 1st floor, 22, Lee Road, Kolkata – 700 020 2 ACIT, Circle-7 , Kolkata 3 The CIT(A), 4 CIT, 5. D.R. 5