Dinesh Chaudhary , Ajmer vs Department Of Income Tax

Jh vkj-ih-rksykuh] U;kf;d lnL; ,oa Jh Vh-vkj-ehuk] ys[kk lnL; ds le{k BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM

M.A. No. 28/JP/2015 (Arising out of I.T.A. No. 874/JP/2012) Asstt. Year-2007-08 Assistant Commissioner cuke Dinesh Choudhary, of Income Tax, Vs. Prop- M/s Balaji Construction, Cicle-2, Ajmer. C-186, Chandravardai Nagar, Beawar Road, Ajmer. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ADOPC 4804 F vihykFkhZ@Appellant izR;FkhZ@Respondent

jktLo dh vksj ls@ Revenue by : Shri D.C. Sharma (Addl.CIT) fu/kZkfjrh dh vksj ls@ Assessee by : None (A.D. on record)

lquokbZ dh rkjh[k@ Date of Hearing : 05/06/2015 ?kks"k.kk dh rkjh[k@ Date of Pronouncement : 05/06/2015

vkns'k@ ORDER

PER: T.R. MEENA, A.M.

The revenue has filed this M.A. U/s 254(2) of the Income Tax Act,

1961 (in short the Act) against the order of this Bench of ITAT, Jaipur

in ITA No. 874/JP/2012 for A.Y. 2007-08, which was passed on

05/12/2014.

2 MA 28/JP/2015 ACIT Vs. Dinesh Choudhary

2. It is submitted by the Assessing Officer that the Hon'ble ITAT had

decided the appeal by considering the tax effect limit and CBDT

Instruction No. 5/2014 dated 10/7/2014 has not fully analysed/applied.

As per Assessing Officer, the Hon'ble ITAT was not justified in

dismissing the appeal filed by the department without appreciating the

fact that the department had filed the appeal in view of para 8C of the

then applicable instruction No. 5/2014 dated 10/7/2014. Though the tax

effect involved was below the prescribed monetory limit. The facts in

this case was that the assessee claimed depreciation on JCB machine

for the A.Y. 2007-08, which was registered on 03/4/2007. As per

Assessing Officer, the assessee has claimed excess depreciation on JCB

by Rs. 1,56,544/- on the basis of use of JCB in the previous year

relevant to assessment year 2007-08. The order of the Assessing Officer

passed U/s 143(3) of the Act dated 22/12/2009 had been rectified U/s

154 of the Act on 17/02/2011 and Assessing Officer withdrawn the

excess depreciation of Rs. 1,56,544/-. The assessee challenged the

disallowances made by the Assessing Officer before the ld CIT(A) who

had allowed the appeal by considering the Hon'ble Supreme Court

decision in the case of Mysore Minerals Ltd. Vs. CIT 106 Taxman 166 3 MA 28/JP/2015 ACIT Vs. Dinesh Choudhary

(SC). The revenue challenged this issue before the ITAT, which has

been dismissed on the basis of tax effect involved in the appeal.

3. After considering the arguments of the ld DR, it is found that this

exceptional clause of para 8C of instruction No. 5/2014 dated

10/07/2014 had not been brought in the notice of the Bench.

Therefore, we do have any power to review U/s 254(2) of the Act.

Accordingly we dismiss the revenue's M.A.

4. In the result, the miscellaneous application of the revenue is

dismissed.

Order pronounced in the open court on 05/06/2015.

Sd/- Sd/- ¼vkj-ih-rksykuh½ ¼Vh-vkj-ehuk½ (R.P.Tolani) (T.R. Meena) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member

Tk;iqj@Jaipur fnukad@Dated:- 05th June, 2015

*Ranjan

vkns'k dh izfrfyfi vxzsf'kr@Copy of the order forwarded to:

1. vihykFkhZ@The Appellant- Shri Dinesh Choudhary, Ajmer.

2. izR;FkhZ@ The Respondent-

3. vk;dj vk;qDr@ CIT

4. vk;dj vk;qDr¼vihy½@The CIT(A)

5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur

6. xkMZ QkbZy@ Guard File (M.A. 28/JP/2015) vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar