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Income Tax Appellate Tribunal, ‘’A” BENCH, CHENNAI
Before: SHRI B.R. BASKARAN & SHRI VIKAS AWASTHY
आदेश / O R D E R
PER VIKAS AWASTHY, JUDICIAL MEMBER
The appeal has been filed by the Revenue against the order of Commissioner of Income Tax (Appeals)-I, Coimbatore dated 27.01.2012 for the assessment year 2008-2009. The Revenue has raised as many as seven grounds in the appeal. Ground No.1 and 7 of the appeal are general in nature. In ground Nos. 2 to 6, the -2- Revenue has assailed the findings of the Commissioner of Income Tax (Appeals) in allowing high rate of depreciation on lorries, cranes and JCBs.
The brief facts of the case as emanating from the records are:
The assessee owns several JCBs, cranes, tippers and lorries and use the same in his contract business and sale of mud. For the assessment year 2008-2009, the assessee filed its return of income on 29.09.2008 declaring total income of �.15,97,630/-. The case of the assessee was selected for scrutiny. During the course of scrutiny assessment, the Assessing Officer observed that the assessee has claimed depreciation @ 30% on tipper, lorries, china loader, crane and JCBs . The Assessing Officer restricted deprecation to 15% on the ground that the assessee is using the vehicles for his own business and is not using them in the business of vehicle hiring. Aggrieved by the assessment order dated 31.12.2010, the assessee preferred an appeal before the Commissioner of Income Tax (Appeals). The Commissioner of Income Tax (Appeals) after appreciating records and facts of the case, came to the conclusion that the assessee has been giving JCBs, cranes, lorries etc. on hire to third parties and is thus eligible to claim higher rate of depreciation on them.
-3- Against these findings of the Commissioner of Income Tax (Appeals), the Revenue has come in appeal before the Tribunal.
Shri. P. Radhakrishnan, representing the Department, submitted that the assessee in his submission before the Assessing Officer has admitted that he has been using tipper and other machines for his own business use of mud sales and loading and unloading contract. Since the assessee is not giving these machines/vehicles on hire, the assessee is not entitled for higher rate of depreciation. The learned Departmental Representative further submitted that the Commissioner of Income Tax (Appeals) has erred in following earlier order for the assessment year 2007- 2008. The Revenue had filed appeal against the said order.
However, the appeal was dismissed by the Tribunal vide order dated 23rd August, 2013 on the ground of limitation alone. The learned Departmental Representative vehemently supported the assessment order and prayed for reversing the fining of the Commissioner of Income Tax (Appeals).
Shri. S. Sridhar appearing on behalf of the assessee submitted that the assessee is giving JCBs, tippers and cranes on hire to various companies. The assessee placed on record a copy of -4- I.T.A. No.852/Mds/2012 the TDS certificate to show that the companies had deducted tax at source on the payments made towards hiring charges for the aforesaid machines/vehicles. The learned authorized representative strongly supported the impugned order and prayed for dismissing the appeal of the Revenue.
We have heard the submissions made by the representatives of both sides and have perused the orders of the authorities below.
Higher rate of depreciation @ 30% has been denied to the assessee only on the ground that the assessee is using tipper, JCBs, cranes, etc in the course of his own business and is not giving them on hire.
We observe that the findings of the Assessing Officer are contrary to documents on record. The learned Departmental Representative in order to support the case of the Revenue has placed reliance on the statement recorded on 4th November, 2009. A perusal of the statement which has been placed on record by the Revenue does not indicate the provisions and the proceedings under which the statement has been recorded. Moreover, the Revenue has not corroborated the same with any material evidence. On the contrary, the contentions of the assessee are substantiated by TDS certificates
-5- I.T.A. No.852/Mds/2012 furnished by the assessee alongwith the return of income. The Commissioner of Income Tax (Appeals) in his order has recorded the findings that the assessee has placed on record the details of tax deducted at source by Lakshmivel Mills, K.G. Fabriks Limited, Sri Sugam International and Agni Steels Pvt. Limited to show that the TDS was paid for contract work. The Commissioner of Income Tax (Appeals) also referred to his order for the assessment year 2007-08 where similar issue was decided in favour of the assessee. We have also examined the order of the Commissioner of Income Tax (Appeals)-I, Coimbatore dated 20.12.2010 for the assessment year 2007-2008, wherein he has categorically observed that the bill books produced by the assessee show that bills were issued to various parties for giving lorries, cranes and JCBs on hire. There is nothing contrary on record to reverse the findings of the Commissioner of Income Tax (Appeals) on this issue. We do not find any infirmity in the impugned order.
In the result, the appeal of the Revenue is dismissed being devoid of merits.
-6- I.T.A. No.852/Mds/2012 Order pronounced on Monday, the 2nd of February, 2015, at Chennai.