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TMI Blog2021 (11) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... in common grounds of appeal; facts in all appeals are similar except variation in figure of addition on account of disallowance of depreciation. With the consent of parties, all appeals are clubbed, heard and decided by a consolidated order. For appreciation of facts, the facts in appeal for AY 2010-11 in ITA No.34/SRT/2019 is treated as lead case. The assessee has raised the following grounds of appeal:- "1. Lr. CIT(A), Valsad has erred in law and on facts to upheld Assessing Officer's action of reopening of assessment u/s 147 and issue of notice u/s 148. 2. Lr. CIT(A), Valsad had erred in law and on facts to upheld Assessing Officer's addition of Rs. 1,19,481/- being excess claim of depreciation of JCB." 2. On perusal of reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... get any benefit in filing the appeals beyond the period of limitation. The assessee is a good case on merit. The ld. AR for the assessee submits that he has explained the cause of delay in filing the appeal(s), which is sufficient cause for condoning the delay. 4. On the other hand, Ld. Sr Departmental Representative (DR) for the Revenue not seriously objected about the contention of Ld. AR of the assessee for condoning the delay in filing all the appeals. 5. We have considered the contention of both the parties and the explanation, which we have recorded above; we find that the non-filing of appeals within the period of limitation was neither intentional nor deliberate to assessee. The assessee has reasonably explained the delay in fili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion dated 23.10.2017.The objection of assessee was disposed vide speaking order dated 27.10.2017. 7. The Assessing Officer re-opened the case after recording the reasons that on verification of record, it was found that assessee claimed depreciation of Rs. 42,41,263/-.On further verification of chart of depreciation, it was found that assessee claimed depreciation @ 40% on JB machine at Rs. 1,91,170/- the written down value (WDV) of JCB machine was of Rs. 4,77,925/-. As per the audit report the assessee has shown three different block of asset; i.e. (a) construction as well as furniture and fittings, the assessee claimed depreciation @ 40%, (b) on plant and machinery, assessee claimed depreciation @ 15% and (c) computer the assessee claime ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The JCB machine is a motor vehicle and the assessee was of the bona fide belief and opinion that since it is eligible for @ 40% depreciation. The assessee also relied on the decision of Hon'ble Supreme Court in Bose Abraham Vs State of Kerala (2001) 9 KTR 366 (SC) and jurisdictional High Court in Gujco Carriages Vs CIT 122 Taxmann.com 206 (Guj). On the basis of above factual and legal submission, the assessee claimed that his claim of @ 40% depreciation is legal and correct. The reply of assessee was not accepted by Assessing Officer. The Assessing Officer held that JCB Machine falls under the category of heavy goods vehicle is eligible deprecation @ 40% if engaged for hiring purposes. The assessee has not let out those vehicles on hire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment for the subject year was completed under section 143(3) on 22/03/2013 assessing total income at Rs. 25,12,340/-, by making certain additions on account of disallowance of crusher expenses. At the time of filing return of income the assessee furnished complete details of depreciation. The AO completed assessment under section 143(3) after due application of mind and accepted the claim of depreciation on JCB Machine. Thereafter, notice under section 147 was issued on 29.03.2017. The notice issued on 29.03.2018 is nothing but is result of change of opinion. No new intangible material came to the notice of the AO. The assessee disclosed all facts necessary for assessment. No new information was available with AO while issuing notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal in Radha Krishan Beniwal Vs ACIT (ITA No. 469/JP/2016), wherein 50% depreciation was allowed on similar JCB Excavator. 12. On the other hand, Ld. Sr. DR for the Revenue supported the order of the lower authority. The ld. Sr DR for the revenue submits that the submissions of the ld R for the assessee that reopening is based on the change of opinion, is misplaced. The AO has not examined the depreciation on JCB Machines. On merit the ld AR for the assessee submits that the assessee is using his JCB Machine for its own business and not for hire or leasing. To support of her submissions the ld DR for the revenue relied on the decision of Delhi High Court in CIT Vs Usha International Ltd [2012] 25 taxmann.com 200 (Delhi)(FB). 13. We ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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