TMI Blog2015 (5) TMI 987X X X X Extracts X X X X X X X X Extracts X X X X ..... e is expected to deduct tax at the time of making the payment. Therefore, the alternative contention of the assessee is also does not hold any merit at all. Accordingly, the order of the CIT(Appeals) is confirmed. Depreciation on Maruthi car - Held that:- The assessee has claimed depreciation on Innova car at 50% of normal rate. Therefore, this Tribunal is of the considered opinion that there is no question of making any further disallowance on Maruthi car. It is not in dispute that Maruthi car was used for business purpose. Therefore, the assessee is entitled to claim depreciation on the Maruthi car. Accordingly, the orders of the lower authorities are set aside and the Assessing Officer is directed to allow the depreciation on Maruthi car maintenance expenses as claimed by the assessee - ITA Nos. 336 & 337/Mds/2015 - - - Dated:- 29-5-2015 - N. R. S. Ganesan (Judicial Member) And A. Mohan Alankamony (Accountant Member) For the Petitioner : T. S. Lakshmi Venkataraman (CA) For the Respondents: N. Madhavan (JCIT) ORDER N. R. S. Ganesan (Judicial Member) Both the appeals of the assessee are directed against the different orders of the Commissioner of Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the investments which earned tax-free income. Since the Assessing Officer has rectified the arithmetical error and when this was done after giving reasonable opportunity to the assessee, this Tribunal is of the considered opinion that the Assessing Officer has rightly rectified the mistake in the assessment order on the basis of the material already available on record. 6. In view of the above, we do not find any infirmity in the order of the CIT(Appeals). Accordingly, the same is confirmed. Now let s take I.T.A. No.337/Mds/15. 7. The first issue arises for consideration in this appeal is with regard to disallowance of ₹ 1,55,100/- paid as machine hire charges under Section 40(a)(ia) of the Act. 8. Shri T.S. Lakshmi Venkatraman, the Ld. representative for the assessee, submitted that the assessee paid machine hire charges. However, the Assessing Officer disallowed the hire charges on account of non-deduction of tax. According to the Ld. representative, the entire hire charges were paid on or before 31.03.2010 and nothing remained to be payable. The Ld. representative placing reliance on the decision of this Bench of the Tribunal in ITO v. Theekathir Press in I.T.A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntative placed reliance on the judgment of Allahabad High Court in Vector Shipping Services (P) Ltd. (supra) and on the decision of this Bench of the Tribunal in Theekathir Press (supra). We have carefully gone through the judgment of Allahabad High Court in Vector Shipping Services (P) Ltd. (supra). The Allahabad High Court, while considering the decision of the Special Bench of this Tribunal in Merilyn Shipping and Transport (supra), made a passing reference about the decision taken by the Special Bench of this Tribunal. The Allahabad High Court had no occasion to examine the legality and otherwise of the Special Bench of this Tribunal. We find that that Calcutta High Court in CIT v. Crescent Export Syndicates and Gujarat High Court in CIT v. Sikandarkhan N. Tunvar had an occasion to examine the legality or otherwise of the decision of the Special Bench of this Tribunal. The Calcutta High Court and the Gujarat High Court have examined the matter in detail and found that the decision of the Special Bench of this Tribunal is not sustainable in law. However, the Allahabad High Court by way of passing reference decided the matter in favour of the assessee. The Special Leave Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led principles of law that the judgment which discusses the point in issue elaborately and gives an elaborate reasoning has to be preferred when compared to the judgment which has no reasoning and discussion. Admittedly, the Calcutta High Court and Gujarat High Court have discussed the issue elaborately and the specific reasoning has also been recorded as to why the Special Bench is not correct. Therefore, this Tribunal is of the considered opinion that the judgments of the Calcutta High Court Crescent Exports Syndicate Another (supra) and Gujarat High Court in Sikandarkhan N Tunvar (supra) have to be preferred when compared to the Allahabad High Court in M/s Vector Shipping Services (P) Ltd (supra). 13. For the purpose of convenience we reproducing below the observations made by the Calcutta High Court in Crescent Exports Syndicate Another (supra) and Gujarat High Court in Sikandarkhan N Tunvar (supra): Calcutta High Court in Crescent Exports Syndicate Another (supra) Before dealing with the submissions of the learned Counsel appearing for the assessees in both the appeals we have to examine the correctness of the majority views in the case of Merilyn Ship ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be paid. What the Tribunal by majority did was to supply the casus omissus which was not permissible and could only have been done by the Supreme Court in an appropriate case. Reference in this regard may be made to the judgment in the case of Bhuwalka Steel Industries vs. Bombay Iron Steel Labour Board reported in 2010(2) SCC 273. Unprotected worker was finally defined in Section 2(11) of the Mathadi Act as follows:- unprotected worker means a manual worker who is engaged or to be engaged in any scheduled employment. The contention raised with reference to what was there in the bill was rejected by the Supreme Court by holding as follows: It must, at this juncture, be noted that in spite of Section 2(11), which included the words but for the provisions of this Act is not adequately protected by legislation for welfare and benefits of the labour force in the State , these precise words were removed by the legislature and the definition was made limited as it has been finally legislated upon. It is to be noted that when the Bill came to be passed and received the assent of the Vice-President on 05-06-1969 and was first published in the Maharashtra Government Gaz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vices or to a contractor of sub-contractor shall not be deducted in com putting the income of an assessee in case he has not deducted, or after deduction has not paid within the specified time. The language used by the legislature in the finally enacted law is clear and unambiguous whereas the language used in the bill was ambiguous. A few words are now necessary to deal with the submission of Mr. Bagchi and Ms. Roychowdhuri. There can be no denial that the provision in question is harsh. But that is no ground to read the same in a manner which was not intended by the legislature. This is our answer to the submission of Mr. Bagchi. The submission of Mr. Roychowdhuri that the second proviso sought to become effective from 1st April, 2013 should be held to have already become operative prior to the appointed date cannot also be acceded to for the same reason indicated above. The law was deliberately made harsh to secure compliance of the provisions requiring deductions of tax at source. It is not the case of an inadvertent error. For the reasons discussed above, we are of the opinion that the majority views expressed in the case of Merilyn Shipping Transports are not acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to a contractor or sub-contractor for carrying out any work. The language used is not that such amount must continue to remain payable till the end of the accounting year. Any such interpretation would require reading words which the legislature has not used. No such interpretation would even otherwise be justified because in our opinion, the legislature could not have intended to bring about any such distinction nor the language used in the section brings about any such meaning. If the interpretation s advanced by the assessees is accepted, it would lead to a situation where the assessee though was required to deduct the tax at source but no such deduction was made or more flagrantly deduction though made is not paid to the Government, would escape the consequence only because the amount was already paid over before the end of the year in contrast to another assessee who would otherwise be in similar situation but in whose case the amount remained payable till the end of the year. We simply do not see any logic why the legislature would have desired to bring about such irreconcilable and diverse consequences. We hasten to add that this is not the prime basis on which we have ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be applied by comparing the draft presented in Parliament and ultimate legislation which may be passed. Secondly, the statutory provisions is amply clear. 38. In the result, w are of the opinion that Section 40(a)(ia) would cover not only to the amounts which are payable as on 20 ITA No. 63 64m 83-85 7-72/Coch/2014 31st March of a particular year but also which are payable at any time during the year. Of course, as long as the other requirement of the said provision exist. In that context, in our opinion the decision of the Special Bench of the Tribunal in the case of M/s Merilyn Shipping Transports vs ACIT (supra), does not lay down correct law. 14. By following the judgments of the Calcutta High Court in Crescent Export Syndicate (supra) and the Gujarat High Court in Sikandarkhan N Tunvar (supra), this Tribunal is of the considered opinion that the decision of the Special Bench of this Tribunal in the case of M/s Merilyn Shipping Transports (supra) and the judgment of the Allahabad High Court in Vector Shipping Services (P) Ltd (supra) are not applicable to the facts of the case under consideration whereas the judgments of the Calcutta High Court in Crescent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Ld. representative for the assessee, submitted that the assessee has claimed for depreciation on Maruthi car. However, on Innova car, the assessee has restricted the depreciation to 50% of the normal rate of depreciation. According to the Ld. representative, when the assessee himself restricted the depreciation to 50% of normal rate of depreciation, there is no question of any disallowance. Even otherwise, according to the Ld. representative, after introduction of the concept of block asset on depreciation , it would not be possible to disallow any portion of the depreciation for personal use of the vehicle. According to the Ld. representative, the car was used only for business purpose, therefore, there is no question of any disallowance. The Ld. representative placed reliance on the judgment of Madras High Court in the case of CIT v. Indian Express (P) Ltd. (255 ITR 68) and submitted that even where the machinery was used by the sister concern of the assessee, the Madras High Court found that the assessee is eligible for depreciation under Section 32(2) of the Act. 16. On the contrary, Shri N. Madhavan, the Ld. Departmental Representative submitted that the use of the vehic ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
