TMI Blog2016 (7) TMI 738X X X X Extracts X X X X X X X X Extracts X X X X ..... ANT MEMBER : This appeal by the Assessee is directed against the order of the Commissioner of Income Tax(Appeals)-VIII, Ahmedabad dated 18/02/2013 for the assessment year 2008-09. 2. The relevant facts as culled out from the materials on record are as under:- 2.1. Assessee is a company stated to be engaged in the business of manufacturing and trading of electronic weighing scales and its parts. Assessee electronically filed its return of income for AY 2008-09 on 29/09/2008 declaring total income of ₹ 76,53,620/-. The case was selected for scrutiny and thereafter assessment was framed u/s.143(3) of the Income Tax Act, 1961 (hereinafter referred to as the Act ) vide order dated 14/12/2010 and the total income was determined 82,66,440/-. Aggrieved by the order of Assessing Officer (AO), assessee carried the matter before the ld.CIT(A), who vide order dated 18/02/2013 (in Appeal No.CIT(A)-VIII/ITO/Wd.4(1)/507/10-11) granted partial relief to the assessee. Aggrieved by the order of the ld.CIT(A), assessee is now in appeal before us and has raised following grounds:- 1. The learned CIT(A) has erred both in law and on the facts of the case in confirming the disallowa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the name of director. Assessing officer disallowed the same on the ground that appellant is not the owner of the car and the same was not used for the purpose of appellant's business in assessment year 2008-09. The basic fact is that director of the company purchased motor car in his name and the bill for the said purchase is also in the name of director. Therefore, appellant company is not the legal owner of the motor car. For claim of depreciation, the two conditions are to be fulfilled namely-appellant must be owner of the asset and it must be used for the purpose of appellant's business. In this case appellant is not the owner since the ownership vests with the director who is separate entity than the appellant company. As regards use of these cars for the purpose of business, the same were not furnished. Therefore; use of car for the purpose of company's business is not established by the appellant Although .the onus to prove the user of asset was on the appellant, the same was not discharged either before the assessing officer or before the undersigned. Claim of an expense in the company accounts is not an evidence to prove that asset was used for the business of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of other high Courts have been considered. In all those decisions the user of asset namely transport buses etc were by the companies and the companies were disclosing the income from hiring those vehicles. The user of asset for the purpose of business was proved in all these cases beyond doubt. With the user of asset, dominion and control is also proved. Therefore claim of depreciation in these cases were allowed by various high Courts. However in the appellant's case, use for the purpose of business is not at all proved and the dominion and control also remained unproved therefore these decisions do not help the appellant. Considering the larger bench decision of apex court and the Delhi High Court decision in the case of MM fisheries private Ltd, the decision of jurisdictional ITAT is not followed which has not considered these decisions. It is therefore held that the depreciation claimed by the appellant is correctly disallowed by the assessing officer. The ground of the appellant is dismissed. 3. Aggrieved by the order of the ld.CIT(A), assessee is now in appeal before us. 3.1. Before us, ld.AR reiterated the submissions made before the AO and ld.CIT(A) and f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing in the name of the director of the company but the same is considered as part of fixed asset of the assessee. The submission of the assessee that for the purchase of vehicle, the funds of the assessee has been used could not be controverted by the Revenue by bringing any material on record. We find that the Co-ordinate Bench in the case of Studio-3 Architect Pvt Ltd (supra) held as under:- 5. We have heard both the parties and gone through the facts of the case. The relevant provisions of section 32 of the Act stipulate depreciation in respect of building, machinery, plant or furniture owned by the assessee and used for the purposes of the business or profession. Indisputably, the innova car was purchased with the funds of the company and used by the assessee for the purposes of its business. The controversy is in regard to ownership of the car. The contention of the assessee is that car being not registered under the Motor Vehicles Act in the name of the company, by itself is not sufficient to hold the contrary. The factual position as stated by the assessee is not disputed by the Revenue. The contention of the Revenue is that unless the car is registered in the nam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground no. 1 relating to disallowance of depreciation on motor car is dismissed. 8. Before us, Revenue has not been brought any contrary binding decision in its support nor could point any distinguishable feature of the present case to that of Swati Autolink (supra). We therefore, respectfully following the decision of the Co-ordinate Bench in the case of Swati Autolink Pvt. Ltd. (supra) hold that the claim of depreciation and expenditure could not have been disallowed in the present case. Thus this ground of Assessee is allowed. 4.1. Before us, Revenue has not brought any contrary binding decision in its support. We further find that in the present case, AO has disallowed only the depreciation and has not disallowed any expenses of the Car, meaning thereby that the expenses incurred by the assessee on the running of the car for the purpose of business has not been doubted and has been accepted by the Revenue. In view of the aforesaid facts and relying on the aforesaid decision cited hereinabove, we are of the view that, in the present case, the claim of depreciation could not be disallowed by the AO merely because the motor car was in the name of Directors. We therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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