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Joint Commissioner of Income Tax Versus M/s. Avinash Transport

Higher rate of depreciation - Assessee had claimed depreciation on the Dumpers at the rate of 30% - AO allowed at the rate of 15% - CIT(A) allowed the assessee’s appeal - Held that:- The Assessing Officer concluded that when the dumpers are given on hire, the assessee would be entitled for depreciation at the rate of 30%. However, that is not the correct interpretation of the law, because if the assessee is transporting the goods of other persons, then al so the dumper is given on hire and under .....

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. CIT(Appeals) on this count - Decided in favour of assessee.

Unexplained cash credit - CIT(A) deleted the addition - Held that:- Out of the total sundry creditors aggregating to ₹ 2,19,93,756/-, the Assessing Officer has made the addition of ₹ 6,50,000/- as the assessee neither produced the creditors nor gave any detail s in regard to suppliers. Merely submitting the bills in support of purchases cannot be the basis for deleting the addition unless the genuineness of purc .....

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of revenue for statistical purposes.

Disallowance on account of payment of EPF after the due date - CIT(A) deleted the addition - Held that:- CIT(Appeals) deleted the addition by following the decision of Vinay Cement Limited reported in (2007 (3) TMI 346 - Supreme Court of India) wherein it has been held that statutory items like PF and ESI if paid before the due date of filing of the return have to be allowed irrespective of the fact whether the contributions related to the employer .....

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erifiable. We, therefore, do not find any reason to interfere with the order of ld. CIT(Appeals). - Decided in favour of assessee.

Disallowance on account of excessive expenses claimed - CIT(A) deleted the addition - Held that:- reason to interfere with the order of ld. CIT(Appeals) because the assessee had duly explained the reasons for increase in expenses as noted by the ld. CITR(Appeals) and the assessee’s explanation on account of explosives being supplied by contractee had not d .....

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l dated 12.10.2012 for the assessment year 2008-09. 2. Brief fact s of the case are that the assesese, a partnership fi rm, in the relevant assessment year, derived income from t ransporting business. The nature of assessee s business was to carry out mining, transporting, loading job of coal for Eastern Coal Field Limited, Bharat Coking Coal Limited. It filed its return of income declaring income of ₹ 34,91,938/-. The Assessing Officer determined the total income at ₹ 87,03,385/- af .....

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g Officer, the assessee was in appeal before the ld. CIT(Appeals). The assessee s appeal was allowed by the ld. CIT(Appeals). 3. Against the order of ld. CIT(Appeal s), the Department is in appeal before the Tribunal by taking the following effective grounds of appeal :- 1. That the ld. CIT(A), Asansol has erred in law and on facts by allowing the relief of ₹ 35,13,409/- disallowed by the AO on account of higher rate of depreciation claimed by the assessee. 2. That the ld. CIT(A), Asansol .....

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. CIT(A), Asansol has erred in law and on facts by allowing the relief of ₹ 4,17,512/-, disallowed by the AO on account of excessive expenses claimed. 4. Brief fact s apropos Ground No. 1 are that the assessee had claimed depreciation of ₹ 95,07,297/-. Out of this, depreciation on the Dumpers had been claimed at the rate of 30% amounting to ₹ 70,26,818/- on the written down value of ₹ 2,34,22,726/-. The Assessing Officer required the assessee to justify its claim on accou .....

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ties. Primarily he disallowed the assessee s claim on the ground that the assessee was not giving the dumpers on hi re but using for it s own business for earning the hiring income/rental income. 5. Ld. CIT(Appeal s) allowed the assessee s appeal, inter alia, observing that the assessee it self was involved in the business of loading/ unloading and t ransporting for various organizations. Accordingly he allowed the assessee s claim by observing that the dumpers were predominantly used by the ass .....

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Anup Chand & Co. reported in 239 ITR 466 and CBDT Circular No. 652 dated 14.06.1993, he allowed the assessee s claim. 6. Ld. Departmental Representative for the Revenue referred page 2 of the assessment order and pointed out that the assessee was not giving the dumpers on hire because it was raising gross bills. 7. We have considered the submissions of both the parties and have perused the records of the case. As per New Appendix 1 under Rule 5 of the Income Tax (Appellate) Rules, 1962 deal .....

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the dumper is given on hire and under such circumstances, in view of the dec ision of the Hon ble Madhya Pradesh High Court in the case of Anup Chand & Co. reported in 239 ITR 466 the assessee was entitled for higher rate of depreciation as the vehicles are to be considered as being given on hire for transportation of goods of other persons. The assessee was not transporting its own goods but the goods of other persons and deriving hire charges. By considering the totality of the facts and .....

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ion Paid during the year TDS deducted Amount as shown on 31.03.2008 1. Ravi Bhattar NIL Rs.6,50,000/- Rs.6,50,000/- Details of notice given under section 133(6) have been reproduced at page 4 & 5 of the assessment order. Since neither the person to whom notice under section 133(6) had been issued, had filed any document of assessment year 2007-08 to show their creditworthiness to enter transaction of this magnitude with the assessee nor the assessee had filed any rely regarding the above que .....

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has not creditworthiness. He relied on the decision of the Hon ble Allahabad High Court in the case of Pancham Das Jain reported in 205 CTR 444, wherein, on similar fact s, that addition was deleted. 10. We have carefully considered the rival submissions and have perused the records of the case. Out of the total sundry c reditors aggregating to ₹ 2,19,93,756/-, the Assessing Officer has made the addition of ₹ 6,50,000/- as the assessee neither produced the creditors nor gave any det .....

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ore, we set aside the order of ld. CIT(Appeals) on this ground and restore the matter back to the file of Assessing Officer for verification. 11. Brief fact s apropos Ground No. 3 are that the Assessing Officer noticed that the assessee debited the payment of EPF amounting to ₹ 1,30,526/- after the due date. He, therefore, made the addition. In appeal, Ld. CIT(Appeals) deleted the addition by following the decision of the Hon ble Supreme Court in the case of Vinay Cement Limited reported i .....

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o. 4 are that from the details of current liabilities, the Assessing officer noticed that there was dumper and pay loader hire charges payable at ₹ 89,93,832/-. He noted that the assessee had debited the dumper and pay loader hi re charges of ₹ 4,77,58,229/- in the assessment year 2008-09. From the detail s furnished by the assessee, the Assessing Officer noted as under:- (i ) It contains 502 names of the persons, (ii) All the payments payable were shown to be less than ₹ 20,00 .....

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ter observing as under:- Perusal of the audit report for AY 2007-08 indicates that the assessee is showing dumper and pay loader hire charges payable at ₹ 1,59,34,372/-, whereas dumper and pay loader hire charges paid as debited in P& LA/c. for AY 2007-08 was ₹ 8,87,32,394/-. The ratio of dumper and pay loader hire charges payable/ dumper & pay loader hire charges paid for AY 2007-08 is 17.85%. Applying this ratio to the dumper and pay loader hire charges paid in AY 2008-09 i .....

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claim was false and from the face of mathematical justification of the ratios calculated by the Assessing Officer, the disallowance could not be made. 13. We have considered the rival submissions and carefully perused the material available on record. In this case, the Assessing Officer has computed the disallowance by applying the ratio of expenses claimed in different years without pointing out even on a single i tem, which was not verifiable. We, therefore, do not find any reason to interfere .....

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