D.Chandrasekaran, , Erode vs Department Of Income Tax
- CitationI.T.A. No.852/Mds/2012
Ratio decidendi
The rule this decision rests on
The Tribunal holds that where the Assessing Officer's denial of the higher depreciation rate rests on a finding that the assessee used the vehicles in its own business rather than letting them on hire, and that finding is contradicted by the documents on record, the finding cannot be sustained. Documentary material such as TDS certificates showing tax deducted on hire or contract payments, and bill books showing letting out of the vehicles, prevails over an unverified statement in the absence of any corroborating evidence. An unexplained statement, recorded without indication of the statutory provision under which it was taken and not corroborated by any material evidence, cannot by itself displace documentary evidence in the assessee's favour. Where the Commissioner of Income Tax (Appeals) has, on the same facts, found the assessee entitled to the higher rate in an earlier year and no contrary material exists on record to reverse that finding, the appellate finding on the issue is to be upheld.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
The Assistant Commissioner Vs. Shri. D. Chandrasekaran, of Income Tax, Prop.URC Earth Movers, Circle -II, Urumandampalayam, Erode Perundurai -638052.
[PAN :AFGPC6532G] (अपीलाथ /Appellant) ( यथ /Respondent)
अपीलाथ" क# ओर से / Appellant by : Shri. P. Radhakrishnan, IRS, JCIT. %&यथ" क# ओर से / Respondent by : Shri. S. Sridhar, Advocate.
सन ु वाई क# तार*ख/Date of hearing : 19.01.2015. घोषणा क# तार*ख /Date of Pronouncement : 02.02.2015.
आदे श / 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
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Revenue has assailed the findings of the Commissioner of Income
Tax (Appeals) in allowing high rate of depreciation on lorries, cranes
and JCBs.
2. 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- I.T.A. No.852/Mds/2012
Against these findings of the Commissioner of Income Tax
(Appeals), the Revenue has come in appeal before the Tribunal.
3. 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).
4. 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
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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.
5. 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.
6. In the result, the appeal of the Revenue is dismissed being
devoid of merits.
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Order pronounced on Monday, the 2nd of February, 2015, at Chennai.
Sd/- Sd/- (बी.आर. बा करन) (!वकास अव थी) (B.R. BASKARAN) (VIKAS AWASTHY) लेखा सद य/ ACCOUNTANT MEMBER या#यक सद य /JUDICIAL MEMBER
-दनांक/Dated:02.02.2015. K.V आदे श क# % त/ल प अ0े षत/Copy to: 1. अपीलाथ"/Appellant 2.%&यथ"/ Respondent 3. आयकर आयु2त (अपील)/CIT(A) 4. आयकर आयु2त/CIT 5. वभागीय % त न5ध/DR 6. गाड फाईल/GF.
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