M/S. VISHAL MOTORS,BILASPUR vs. ASSISTANT COMMISSIONER OF INCOME TAX-1(1), BILASPUR

आयकर अऩीऱीय अधधकरण, रायऩुर न्यायऩीठ, रायऩुर IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH, RAIPUR श्री रविश सूद, न्याययक सदस्य एवं श्री अरुण खोड़वऩया, ऱेखा सदस्य के समक्ष । BEFORE SHRI RAVISH SOOD, JM & SHRI ARUN KHODPIA, AM आयकर अऩीऱ सं./ITA No.13/RPR/2013 (ननधाारण वषा / Assessment Year :2009-2010) M/s Vishal Motors, Vs ACIT-1(1), Bilaspur(C.G.) Jarhabhata, Link Road, Bilaspur-495001 PAN No. : AAAFV 7542 C (अऩीऱाथी /Appellant) (प्रत्यथी / Respondent) ..

ननधााररती की ओर से /Assessee by : Shri Vimal Agrawal & Laxmi Sharma, CAs राजस्व की ओर से /Revenue by : Shri G.N.Singh, Sr. DR सुनिाई की तारीख / Date of Hearing : 04/08/2022 घोषणा की तारीख/Date of Pronouncement : 17/10/2022 आदेश / O R D E R Per Arun Khodpia, AM : This appeal is filed by the assessee against the order passed by the CIT(A), Bilaspur, dated 30.11.2012 for the assessment year 2009-2010, on the following grounds :- 1. The order of the Commissioner (Appeals) sustaining the addition of Rs 583252/- on account of depreciation on two tankers is contrary to law and the facts of the case. 2. The order of the Commissioner (Appeals) sustaining the addition of Rs. 253776/- on account of registration fees & insurance premium is contrary S \A to law and the facts of the case. 3. The order of the CIT (Appeals) sustaining the addition of Rs. 332358/- on account of unexplained expenditure on fuel expenses for transportation of new vehicle is contrary to law and the facts of the case. 4. The order of the CIT (Appeals) sustaining the addition of Rs. 106000/- on account of disallowance of repairs & maintenance and spares & stores is contrary to law and the facts of the case.

2 ITA No.13/RPR/2013 2. Out of the above grounds, ld. AR, at the outset, did not press ground Nos.2 & 4, therefore, the same are dismissed as not pressed. Now, the grounds remained to be decided are Ground No.1 and 3. 3. Brief facts of the case are that the assessee is a partnership firm engaged in the business of transportation in the name & style of “M/s Vishal Motors, Bilaspur”. The assessee executes contract of transportation of flying ash from NTPC, Korba to Ambuja Cement, Raipur. The assessee filed his return of income on 30.09.2009 declaring total income at Rs.19,84,570/-. During the course of assessment Ld AO has raised various queries pertaining to rate of depreciation adopted, depreciation claimed on purchase of New Vehicle, Fuel Expenses on transportation of new vehicle, Insurance charges claimed, lump sum addition for defect in vouchers for Repair & Maintenance and Spare & Stores etc. Ld Counsel of the assessee had responded on the queries raised by the AO, submitted documents, have explained contentions of the assessee, but could not convince the AO, who had concluded the assessment by making additions to the tune of Rs. 44,20,580/- in aggregate under various heads and assessed taxable income of the assessee at Rs. 64,05,150/-. 4. Aggrieved with the additions made in the assessment order, the assessee preferred appeal before the CIT(A) and the CIT(A) has partly allowed the appeal of the assessee. Against the appellate order wherein certain additions/ disallowances were sustained by the Ld CIT(A), the assessee is in further appeal before the Tribunal.

3 ITA No.13/RPR/2013 5. Ld AR of the assessee has reiterated the written submissions on the issues before us; the same were on page 42 to 48 of the paper book which reads as under: The assessee-firm has revised the grounds of appeal, which is as under: Revised Grounds of appeal: 1. On the facts and circumstances of the case and in law, the Id CIT(A) has erred in sustaining the addition of Rs.5,83,252 on count of depreciation claimed on 2 Bulkers (i.e., Tankers) purchased on 30-3-09 on being not put to use up to 31-3-09, while, it was 'ready for use' on 30-3-09 and put to use also in regular course of business of the assessee-firm, as held in Premier Industries (India) Ltd (2008) (MP HC). 2. On the facts and circumstances of the case and in law, the Id CIT(A) has erred in sustaining part addition of Rs.2,53,776 out of Rs.21,40,992 addition made by the Id AO on the count of deprecation (i.e., 30% block of vehicles) on 9 old vehicles out of total 28 vehicles, on premise that these vehicles were not put to use during the year under consideration, due to non production of insurance receipts, while, in such 9 old vehicles depreciation had already been allowed by the revenue in preceding year/s. 3. On the facts and circumstances of the case and in law, the Id CIT(A) has erred in sustaining addition of Rs.3,32,358 (i.e., Rs.1,30,650 + Rs.2,01,708) made by the Id AO on the count of unexplained diesel expenses u/s69C on alleged new Bulkers (i.e., tankers), merely on presumption and hypothetical calculations that assessee should have incurred these expenses; and in the absence of any material evidence brought on record by the revenue that the alleged expenditure had actually been incurred by the assessee, the alleged addition is liable to be deleted. 4. On the facts and circumstances of the case and in law, the Id CIT(A) has erred in sustaining adhoc disallowances of Rs. 1,06,000 which is 20% of disallowances made by the Id AO at Rs.5,30,000 on count of possible leakage of revenue from the repairs and maintenance and spares & stores expenses claimed by the assessee, while, the Id CIT(A) has admitted that the stores & spares expenses is less than what has been claimed in the preceding year. 1.1. Revised Gr.No.2&4: Not pressed. 1.2. Revised Gr.No.l: Rs.5,83,252; Depreciation claimed on 2 Bulkers (i.e., Tankers) purchased on 30-3-09 on being not put to use up to 31-3-09 as alleged by the Id AO, while, it was 'ready for use' on 30-3-09 and the Id CIT(A) has admitted that the Bulkers (i.e., Tankers) were on road on 31-3-09;

4 ITA No.13/RPR/2013

1.3. the assessee has engaged in transportation business having gross receipts of Rs.6,00,57,785 in AY09-10 with audited books of account u/s44AB showing NP of Rs. 19.84 lakhs; 1.4. the assessee-firm has purchased 6 Bulkers (i.e., Tankers) in between 1-10-08 to 31-3-09 (i.e., less than 180 days) of Rs.67,32,519 (i.e., shown in the 'Fixed assets' Chart- PB-Pg.fiQ..) on which the assessee-firm has claimed depre for half year; out of which, 2 Bulkers (i.e., Tankers) were purchased on 30-3-09 at Rs.23,33,009 from M/s.Vasant Fabricators P Ltd, Ahd (ledger account at PB-Pg........7), in which the Id AO denied the depre of Rs.5,83,252 on the premise that it were not put to use up to 31-3- 09. 1.5. the Id AO admitted in the assessment order that- in compliance to letter u/sl33(6) to M/s.Vasant Fabricators P.Ltd, Ahd, it is replied that delivery of the alleged 2 Bulkers were delivered to the assessee-firm on "Party Chasis"; that the said Bulkers were delivered from the Factory i.e., from Banaskantha, Gujarat on 30-3-09; and thus, he assumed that it was not put to use before or up to 31-3-09 and denied the depreciation; 1.6. in fact, said 2 Bulkers was ordered by the assessee-firm to make/ manufacture 2 new 'Bulkers' to the manufacturer M/s.Vasant Fabricators P.Ltd, Ahd and the said 2 Bulkers were delivered at 4.20 pm on 30-3-09 to the assessee on its factory premises on 'party chasis' of the assessee-firm, and the said 2 'party chasis'- 'Prime Movers' of the assessee-firm were already reached on the 'factory site' of the manufacturer on 29-3-09 (i.e., one day before) to take delivery of the alleged 2 Bulkers on 30-3- 09 and the 2 Bulkers were run on the road on 30-3-09 & 31-3-09 and they reached at assessee's business site at Bilaspur; 1.7. that, the impugned Bulkers were completed by the manufacturer and it was delivered to the assessee at 4.20 pm on 30-3-09, and the assessee has taken delivery on 30-3-09; it means, the impugned 2 Bulkers were "kept ready for use" at 4.20 pm on 30-3-09 and it were also run on the road on 30-3-09 and 31-3-09; it means, the impugned 2 Bulkers were also put to use on 30-3-09 & 31-3-09. 1.8. the Id CIT(A) has admitted that the appellant has purchased impugned 2 Bulkers (i.e. Tankers) on 30-3-09; that the impugned Bulkers were delivered from the factory of the supplier located at Banaskantha, Gujarat at 4.20 pm on 30-3-09; that the distance of Bilaspur from Banaskantha, Gujarat is about 1,300 kms in shortest route and the Bulkers could not reach at the business premise of the appellant-firm on or before 31-3-09; that the Bulkers (i.e., Tankers) were on road on 31-3-09............; that the impugned 2 bulkers were ready for use on 30-3-09 at 4.20 pm and it also run on road on 31-3-09 as admitted by the Id CIT(A), and thereby it

5 ITA No.13/RPR/2013 also put to use on 30-3-09 & 31-3-09, so, depreciation of Rs.5,83,252 may kindly be allowed. 2.1 It is submitted that Anil Bulk Carriers (P) Ltd (2005) (All HC) dt.26-10-04, held as under: "14. Pepsu Road Transport Corporation (2002) (P&H) has held that the assessee who was the 'transporter' had to keep spare engines in the store, was entitled to depreciation on the spare engines in the store, as the engines were meant to be used in the case of need. There is a normal depreciation of value even when machines or equipment is merely kept in the store. Looking to the nature of business of that assessee, who was a 'transporter' it was held that keeping 'spare engines' in store to meet emergent situations, was the requirement of business. 15..........The 2 oil tankers along with mounted bodies were purchased for the business purposes by the assessee who is a transporter during the accounting year. It is not the case of the Department that these oil tankers were not necessary for the business purposes of the assessee. These oil tankers were actually plied on the road on the last date of the accounting year and were challaned and also fined by the CMM, Kanpur. Therefore, the oil tankers were actually put to use in the relevant accounting year by the assessee for its business purposes. Alternatively, the assessee was entitled for depreciation on these 2 oil tankers as they were purchased during the relevant accounting year for business purposes and were ready to use, road tax was deposited and the oil tankers were got registered with the registering authority on the last date of the accounting year. Failure of the assessee to produce the hire contract with the parties is in respect of the 2 oil tankers is of little significance in view of exposition of law that the word "used" u/s32 has to be given wider meaning and it will include assets 'ready for use*. 16. In the result, we are of the opinion that substantial questions of law are involved in the appeal and the order of the Tribunal refusing to grant depreciation on the 2 oil tankers is not legally justified. The appeal is allowed. The order of the Tribunal is set aside and it is held that the assessee is entitled to depreciation on the 2 oil tankers bearing registration No.UP 78-N/6916 and UP-78- N/6917. [as extracted from Anil Bulk Carriers (P) Ltd (2005) 276ITR 625 (All HC)] 2.2 It is submitted that Zeon Lifessciences Ltd (2015) (Del- Trib) dt.27-3-15, held as under:

6 ITA No.13/RPR/2013 "8.3. Depreciation has to be allowed for the active as well passive use of the asset. It has been held in Sanghvi Motors (P) Ltd (2008) (Pune-Trib) (TM) that depreciation has to be allowed not only for active use of an asset but also for its passive use. Even passive use of an asset i.e., while it is kept ready for use, it would tantamount to use of the asset for the purposes of the business and assessee would be entitled to depreciation thereon. It has been held in Siv Industries Ltd (2008) (Mad HC) that any machinery may not have been used on all days and every single day right throughout the year for it to be eligible to claim depreciation. It has been held by Capital Bus Service (P) Ltd (1980) (Del HC) that even passive use of an asset entitles it to depreciation. The Hon'ble Del HC had relied on Visvanath Bhaskar Sathe (1937) (Bom), wherein the Court held that the assessee was entitled to depreciation notwithstanding that the Plant & Machinery did not actually work during the PY in question. The court, while holding so, interpreted the word "used" found in secl0(2)(vi) of the 1922 Act, as under: "But, I think that the word 'used' in this sec may be given a wider meaning and embraces passive as well as active user. Machinery which is kept idle may well depreciate,' particularly during the monsoon season. It seems to me that the ultimate test is, whether, without the particular user of the machinery relied upon the profits sought to be taxed could have been made; and as I read the agreement in the case, the profits of the assessee during the year under assessment could not have been earned except by his maintaining his factory in good, working order, and that involves the user of the factory and the machinery". 8.5. ...The assessee was required to keep its unit in ready for production stage at all times and the fixed minimum" guarantee received by it was not possible without keeping the plant of the undertaking in "ready for production stage" throughout the year. Capital Bus Service (P) Ltd (Del HC) has recognized that even passive use of assets is entitled for depreciation. In Sanghvi Motors (P) Ltd, it was held that depreciation is to be allowed even for passive use, i.e., while it is kept ready for use. [as extracted from Zeon Lifessciences Ltd (2015) 59 taxmann.com 299 (Del- Trib)] 2.3 It is submitted that Radio Today Broadcasting Ltd (2016) (Del HC) dt.9-12-15, held as under: "37. For the purpose of sec32 it is sufficient that assets be kept ready for use in order to claim depreciation thereon. This has been reiterated by this Court in Refrigeration & Allied Ind Ltd and

7 ITA No.13/RPR/2013 Capital Bus Service (P) Ltd. In the former decision it was held that an asset can be said to be 'used' when it is kept 'ready for use'. Likewise in Capital Bus Service (P) Ltd it was held that while interpreting the expression 'used' "it would be more appropriate to envisage the expression as comprehending cases where the machinery is kept ready by the owner for its use in the business and the failure to use it actively in the business is not on account of its incapacity for being used for that purpose or its non-availability." [as extracted from Radio Today Broadcasting Ltd (2016)282CTR272(DelHC)] 2.4 It is submitted that SPR Publications (P) Ltd (2015) (Hyd- Trib) dt.24-6-15, held as under: "13. India Tea & Timber Trading Co (1996) (Gau HC) has held that the expression 'used' should have a wider meaning so as to include not only actual but also passive user. Therefore, if the machinery was kept ready by the owner for its use in the business then it will be eligible for depreciation even if it is not actually used in the business during the relevant AY. Geo Tech Construction Corporation (Ker HC) held that if the asset on which depreciation is claimed is ready for use, then depreciation is allowable. While coming to such conclusion, the Hon'ble HC observed that the word 'used' in sec32(l) is to be given a wider meaning. Premier Industries (India) Ltd (2008) (MP) held that even if a machine is kept idle but is in a ready to use condition, then depreciation is allowable. Chennai Petroleum Co Ltd (2013) (Mad) held that if the machinery is ready for use but has not been actually used, still then assessee would be eligible for depreciation. Similar view has also been expressed in Oswal Agro Mills Ltd (2011) (Del); Oswal Woollen Mills Ltd (2006) (P&H). Therefore, the principle of law which emerges from the aforesaid judicial precedents is to the effect that the term 'used' as employed in s. 32(1) has to be given a wider meaning and will also include passive user of the asset. It has been held that if the machinery or plant is ready for use but it is not actually used, still then assessee will be eligible for depreciation. If we apply the aforecited principle to the facts of the present case, it is to be seen that the Plant & Machinery and electrical installation on which assessee has claimed full depreciation were acquired in the preceding AY. Therefore, it can be safely concluded that the P&M as well as electrical installation were ready for use in the impugned AY. Only because the inauguration took place in Oct, 2007 that cannot be a sole criteria to deny assessee's claim of depreciation at the full value when there is no material brought on record by the Department to show that the P&M and electrical

8 ITA No.13/RPR/2013 installations were not ready for use prior to 22-10-07. Therefore, considering the totality of the facts and circumstances of the case, we hold that disallowance of 50%, 30% out of the total depreciation claimed by the assessee on the opening WDV is without any reasonable basis. Hence, we delete the addition made on that account." [as extracted from SPR Publications (P) Ltd (2015) 26 NYPTTJ 5010 (Hyd-Trib)] 2.5 It is submitted that K-Ites Pvt Ltd (2015) (Chen-Trib) dt.22- 5-15, held as under: "12. CIT(A) denied depreciation for the reason that assessee has not carried on any business during the year and the assets were not put to use. It was the submission of the assessee that P&M was ready for use and failed to get orders from customers, in other words, P&M was kept ready for use. Chennai Petroleum Corporation Ltd (Chen-Trib) (TM) considered the situation where depreciation was not allowed by the AO on the machinery kept ready for use, the assessee could not use the machinery for want of raw materials. In such circumstances, TM of Chennai Bench held that assessee is entitled for depreciation as the machinery was kept ready for use during the entire PY. The relevant portion of Chennai Petroleum Corporation Ltd (Chen- Trib) (TM) is as under: "Even after the introduction of block of assets concept, there is no change in the legal position to the effect that the assessee would be entitled to depreciation even though the assets in question were not actually put to use in the relevant PY, but were kept ready for being put to use for the purpose of the business. Thus, in order to claim depreciation u/s32 it is not necessary that the machinery in question should have been actually used in the relevant PY for the purpose of business and it is sufficient if the same is kept ready for use during the relevant PY, though not actually used due to circumstances beyond the assessee's control. Sec32 has received several amendments but there is no amendment which has clarified that depreciation would be allowed only if the asset in question was actually used during the relevant PY and merely keeping ready for being used in the business was not sufficient. When the interpretation of sec32, especially of the word "used" appearing in that sec was the subject-matter of a judgment of the Bom HC as long back in 1937 in the old Act, the same word which is used in sec32 must receive the same construction. Therefore, the assessee is entitled to the claim of depreciation on the gas sweetening plant which was kept ready for use during the entire PY, though not actually used due to lack of raw material."

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10 ITA No.13/RPR/2013 [ 3 vehicles 1 BilasDur to Pudncheri 1,675 Kms Total fuel expenses Rs. 1,30,650 Puducheri to Bilaspur 1,675 Kms (i.e., avg 3 Km/litre); 3,350 ltrs x Total 10,050 kms Rs.39 per litre) 6 vehicles Bilaspur to Ahmedabad 1293 Kms Total fuel expenses Rs.2,01,708 Ahd to Bilaspur 1293 Kms (i.e., avg 3 Km/ litre) Total 15,516 kms 5,172 ltrs x Rs.39 per litre) Total Rs.3,32,358

3.2. in fact, on these tankers, the assessee has claimed depreciation on being used in the business of the assessee and fuel expenses has also incurred by the assessee which is included in the Trading & P&L account (31-3-09) in which Rs.1,84,53,568 on "Diesel & Fuel expenses" has been shown; similarly, for driver's salary & other expenses on theses tankers has also been incurred by the assessee and duly recorded in the audited books of account of the assessee-firm and it is very well included in "Salary & wages" of Rs.46,91,280 shown in the P&L account (31-3-09) of the assessee-firm; 3.3. the Id AO has made the alleged addition of Rs.3,32,358 u/s69C & confirmed by the Id CIT(A) merely on presumption & surmises that it is not claimed/ recorded in the books of account, which is totally an incorrect findings & thus, it is liable to be deleted. 6. Ld DR on the other hand has supported the orders of Ld AO and Ld CIT(A) on the issues under consideration and prayed to upheld the order of CIT(A). 7. We have heard the rival contentions, perused the material available on records and carefully gone through the case laws relied upon. 8. Apropos the first issue regarding Depreciation claimed by the assessee on 2 Bulkers (i.e. Tankers) purchased on 30th March 2009 were on road on 31st March 2009 and as apprehended by the assessee that same is eligible for depreciation u/s 32 of the IT Act, however the AO and Ld CIT(A) have a different opinion in this context therefore the depreciation allowance was denied treating the same as not put to use within the meaning of section 32 of the Act.

11 ITA No.13/RPR/2013 9. To examine the issue in light of provisions of section 32 of Income Tax Act, 1961, where in it is stated that, an assessee is entitled to claim depreciation on fixed assets only if the following conditions are satisfied:

12 ITA No.13/RPR/2013 and were started to travel towards the premises of the assessee on 30.03.2009, thus as explained were on road on 30.03.2009 and 31.03.2009, thus assessee contented that the same should be treated as Kept Ready for use and thus passively put to use. Further, on being enquired by the bench, the Ld AR of the assessee was unable to explain or demonstrate with cogent evidence that the Prime Movers, the carrier on which the bulkers were placed for bringing them to the premises of the assessee were belongs to assessee or send by the assessee. On perusal of the Fixed Assets Chart of the assessee on page no 40 of the paper book, it is emanated that the assessee has not owned any Prime Movers during the Financial Year 2008-09, thus Ld AR’s argument that Prime Movers of assessee reached the factory gate of the supplier of Bulker on 29.03.2022 could not be substantiated, no further evidence in this regard was brought to our attention. Thus, the condition to put to use for the business could not be substantiated by the assessee for the impugned asset to make it eligible for depreciation u/s 32 of the IT Act. 11. In view of these observations, we are of the considered view that the claim of assessee under this ground for depreciation on 2 Bulkers was rightly and judiciously disowned by the Ld CIT(A). Therefore, we upheld the order of Ld CIT(A) on this issue, thus, this ground of the assessee is dismissed in terms of our observations herein above. 12. Next ground of the appeal - Addition of Rs. 3,32,358/- u/s 69C on account of unexplained fuel expense.

13 ITA No.13/RPR/2013 13. Ld AR of the assessee submitted that Ld AO was wrong in presuming that the fuel expenses incurred on transportation of 6 new bulkers were not claimed by the assessee, alleging that no explanation on this matter was offered by the assessee before the AO and an estimated amount of Rs 3,32,358/ was added to the income of assessee as unexplained expenditure u/s 69C of the Act. Ld AR submitted that the before us that the said expenses were duly explained and claimed. The same are included under the head “Diesel & Fuel expense” showing total expenditure of Rs. 1,84,53,568/- in P&L account of the assessee. Ld AR drew our attention to the said expenses in the P&L, placed at page 38 of the paper Book. Ld AR also submitted in support of this contention that the Salary of the drivers & other expenses in this regard were included under the Salary & wages head reflecting in the same P&L account. 14. We have carefully perused the evidences submitted by the Ld AR. Since, the amount shown in the P&L are consolidated figures for the year, the question whether the fuel expense on transport of 6 New Bulker were claimed by the assessee could not be answered without verification of individual entries of expenses along with vouchers and supporting documents like toll tax receipts, RTO receipt for interstate transportation or other cogent supporting evidences. Thus, in the interest of natural justice, we are of the considered view that this matter needs further investigation to arrive at a logical conclusion. Therefore, we are restoring this matter back to the AO for limited purpose of the verification of facts to accept explanation of the assessee based on facts and evidences as per

14 ITA No.13/RPR/2013 law. Needless to say, reasonable opportunity of being heard be granted to the assessee. Assessee is also expected to extend full cooperation in the proceedings before AO. Accordingly, this ground of the assessee is allowed partly for statistical purposes. 15. In the result appeal of the assessee partly allowed for statistical purposes. Order pronounced in pursuance to Rule 34(4) of ITAT Rules, 1963 on 17/10/ 2022. Sd/- Sd/- (RAVISH SOOD) (ARUN KHODPIA) न्यानयक सदस्य / JUDICIAL MEMBER ऱेखा सदस्य / ACCOUNTANT MEMBER रायऩुर/Raipur; ददनाांक Dated 17/10/2022 Prakash Kumar Mishra, Sr.P.S. आदेश की प्रनतलऱपऩ अग्रेपषत/Copy of the Order forwarded to : अऩीऱाथी / The Appellant- 1. प्रत्यथी / The Respondent- 2. 3. आयकर आयुक्त(अऩीऱ) / The CIT(A), आयकर आयुक्त / CIT 4. विभागीय प्रयतयनधध, आयकर अऩीऱीय अधधकरण, रायऩुर/ DR, ITAT, 5. Raipur 6. गार्ड पाईऱ / Guard file. सत्यावऩत प्रयत //True Copy// आदेशानुसार/ BY ORDER,

(Assistant Registrar) आयकर अऩीऱीय अधधकरण, रायऩुर/ITAT, Raipur