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2013 (3) TMI 670 - AT - Income TaxDisallowance of depreciation in respect of a Pajero Car and six tippers - Held that:- The assessee is entitled to claim depreciation on all these motor vehicles which may undeniably owned by the assessee-company and were ready for use may be on the last day of the F.Y. and therefore, confirm the impugned finding of ld. CIT(A) and dismiss ground No. (1) of revenue’s appeal. Addition on account of sundry balance written off - Held that:- The main amount advanced to Bhardwaj Transport Corp., Mathura, is shown as the opening balance in the ledger account of A.Y. 2005-06. We are convinced that all these advances are intimately connected with assessee’s business and the assessee has written off these amounts in its books of accounts in terms of Section 28 of the Act as bad-debts. As a result, we dismiss ground No. (2) of revenue’s appeal. Non-deduction of tax at source (TDS) u/s 194J on consultancy charges - Held that:- The assessee has only reimbursed the amount as per the agreement. As per the agreement entered into by this assessee with the concerned Authority it is a compulsory payment to be made as a reimbursement.On this amount, obviously Section 194J is not applicable. - Decided against revenue TDS u/s 194C - purchase of sign-boards - whether this payment is towards a works-contract or not? - Held that:- As per the A.O. these payments are not saved under the umbrella of Circular No. 681 dated 8.3.1994. He has also mentioned that this payment is not towards purchase of goods because the boards are made as per the specification supplied by the assessee and the entire work has been done by the payee accordingly. The ld. CIT(A) has observed that there is no evidence on record to show that these payments are not for ‘contract for sale’ and are for ‘contract for work’. In our considered opinion, the finding of the ld. CIT(A) is cursory and he has mainly relied on the narration on the bills but he has not gone into the real aspect of the controversy. On the other hand, the A.O. has examined this issue in depth and has found that this is nothing but a ‘works-contract’ between the assessee and the payee.But still we are of the opinion that this issue has not been correctly investigated into and examined by the A.O. Thus we need to restore this issue to the file of the A.O. for fresh adjudication as per law Sale of tippers - sale value reduced from WDV of the concerned block of assets and depreciation has been claimed on reduced block value in the computation - Held that:- There is no dispute regarding the fact that total sale consideration has been offered in the depreciation chart while reducing the block of assets and on the balance WDV of the block depreciation was claimed as stated before the A.O. Apart from the reasoning given by ld. CIT(A) as above, we are of the considered opinion that Goetz India’s decision (2006 (3) TMI 75 - SUPREME Court a) debars the A.O. from giving any relied if not sought but authorizes the Tribunal to undo any injustice so done. Therefore, we confirm the impugned deletion of the addition which has been made only on account of pedantic reasons. Addition u/s 40A - rejection of books - Held that:- the rejection of the books of account by A.O. is not correct as he has not pinpointed any specific defect, much less any material defect, therein and not only has accepted the declared turnover but has also accepted the declared G.P. Rate. The ld. CIT(A) has correctly not upheld the rejection of the books. The cash expenses have been made due to the mitigating circumstances mentioned in the above-extracted submission of the ld. A.R. which according to us are justified in that situation. However, neither the A.O. nor the ld. CIT(A) and even the ld. Counsel for the assessee in the written submissions throw any light on this aspect as to whether the cash expenses were not incurred in violation of section 40A(3) of the Act. This issue requires a fresh adjudication at the level of the A.O. TDS u/s 194C - assessee made entire payment before 31.03.2007 towards hiring of trucks for the shifting of plant from one place to another place - Held that:- Provisions of Section 194C are not applicable in view of the Special Bench’s decision in the case of Merilyn Shipping & Transports Vs. ACIT (2012 (4) TMI 290 - ITAT VISAKHAPATNAM ) wherein it has been held that provisions of section 40a(ia) of the Act are applicable only to amounts of expenditure which are payable as on 31st March of every year and it cannot be invoked to disallow expenses which have been actually paid during the previous year without deduction of TDS.
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