TMI Blog2014 (5) TMI 1000X X X X Extracts X X X X X X X X Extracts X X X X ..... o taxation by utilization of those assets in fact tippers/trucks were used in appellant’s business of transportation and income from such activity was duly included in business income as appellant had entered into a composite contract - The Tax Auditor has duly certified depreciation claim - the facts are not in dispute in as much as that the assessee entered into a transportation contract with M/s East India Minerals Ltd. for transportation of Iron ore etc. from crusher stockpile to railway sidings which has not been assailed by the revenue by way of any argument on fact or any evidence led to show that a fact has been wrongly taken into consideration, in the absence of the same, the commercial heavy goods vehicles belonging to the assessee have been used for hire for transporting the goods from one place to the other - Considering the Circular No. 652 dated 14/6/1993, the order of the CIT(A) is upheld - Decided against Revenue. - I.T.A .No. 4727/Del/2012 - - - Dated:- 29-4-2014 - Shri G. D. Agrawal And Smt Diva Singh,JJ. For the Appellant : Sh. Gagan Sood, Sr. DR For the Respondent : Sh. Sanjeev Jain, C.A ORDER Per Diva Singh, JM This is an appeal f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. M/s East India Minerals Co. Ltd. 1100000 4. M/s Mahakud Brothers 346623 Total 3298804 2. In appeal before the First Appellate Authority the assessee assailed the action of the AO on various counts including the argument that the disallowance u/s 40 (a)(ia)of the Act could not be made as the amount of TDS was duly deposited before the due date of filing the return of income . It was argued that this fact had been taken note of by the Assessing Officer himself in the assessment order that the assessee had deducted and deposited TDS for the period April 2008 to February 2009 before due date of filing of return u/s 139 91). Reliance was placed upon CIT VS. Virgin Creations (2011) (HC) (Kolkata) and Piyush C Mehta Vs. ACIT (2012) (ITAT Mumbai) 3. Considering the arguments advanced the CIT(A) held that since the amount of TDS was duly deposited before the due date of filing the return disallowance u/s 40(a)(ia) could not be made. Apart from that he also held that the provisions of Section 194C (1) and 194C(2) do not applicable to the facts of the case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reciation applicable for Motor Buses, motor lorries and motor taxis used in a business of running them on hire. However, it is seen from the records that the assessee has not declared any income from letting the Trucks on Hire and prima-facie, the assessee has used these Trucks owned by him for his own busienss purpose and did not let these out on hire, whereby it would have earned income from such letting. As such, the Trucks owned by the assessee and used for his own business purposes, and which were note let out on Hire, are entitled to depreciation @15% only. Accordingly, a sum of Rs.1142486/-, being the excessive deprecation claimed on Trucks, which were not let out on Hire, will be disallowed as business expenditure after restricting the depreciation claim to 15% of the WDV and the same will be added back to the income of the assessee. 7. In appeal before the first appellate authority, the assessee assailed the action of the Assessing Officer contending that the Assessing Officer in Para 12 has tried to override the basic nature of the transaction and consequently disallowed the claim for high depreciation. It was submitted that the assessee has been engaged in the busine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harges are duly included in the business of the assessee. Reliance was also placed on Dr. K. R Jayachandran 212 ITR 637 (Ker) for the following proposition:- Plying of the ambulance van on hire itself constituted the business of the assessee though it may be incidental to the running of the hospital. The hire charges received were assessed under the head Business. Hence the assessee is entitled to depreciation at the rate of 40%. 8. Considering the explanation offered the CIT came to the following conclusion:- I have carefully considered the contention of the appellant as well as the case laws and circular relied upon. The contention the Assessing Officer is incorrect as he has not appreciated the facts of the case. Principle laid down in the circular and judicial precedents clearly reiterates intention of legislature to allow benefit of higher depreciation to the persons involved in the business of running motor cars, motor lorries etc. on hire as well as using these vehicle for transporting goods on hire. The word hired used by statute was only to indicate that some income should be rendered to taxation by utilization of those assets in fact tippers/trucks were use ..... X X X X Extracts X X X X X X X X Extracts X X X X
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