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2020 (1) TMI 500 - ITAT KOLKATADepreciation claim on its commercial vehicle - @ 30% on hire and other vehicles which stood restricted to 15% only during the course of assessment - HELD THAT:- As decided in own case [2019 (3) TMI 1702 - ITAT KOLKATA] A.O. could not bring any material on record, to dispute the assessee’s claim, that the vehicles and other equipments were deployed in difficult areas and therefore, entitle to higher rate of depreciation. A.O’s contention, that the explanation given by the assessee, is an afterthought, and that no hiring charges have been received, is not supported by facts. The tippers used by the assessee in its business are registered under the Motor Vehicles Act, 1988. They met the functional test as the basis for grant of 30% depreciation, and also on the ground that the higher depreciation is on account of rigorous and hard use of commercial vehicles, in comparison to the stationery and permanently installed machinery. These views, find support in the decision of the Punjab & Haryana High Court in the case of CIT vs. Rakesh Jain [2012 (5) TMI 7 - PUNJAB & HARYANA HIGH COURT] . Therefore, taking into account the submission of the Counsel and relevant assessment records, the addition made by AO, on account of additional depreciation claim on higher rate, should be deleted. - Decided in favour of assessee Deemed dividend u/s.2(22)(e) - appellant company has received the loan of ₹ 29977000/- from Capital Tours India Pvt. Ltd. wherein also holds more than 25% of the shares in Capital Tours India Pvt. Ltd. - HELD THAT:- DR ails to rebut the clinching fact that the assessee has paid interest @ 9% to M/s Capital Tours India Pvt. Ltd., in commercial terms. This tribunal’s co-ordinate bench’s order in Smt. Sangita Jain vs. Income Tax Officer Ward-36(3) Kolkata [2016 (3) TMI 1202 - ITAT KOLKATA] holds that such an instance of commercial loans does not attract sec. 2(22)(e) - Decided against revenue Sundry balances written off / puja expenses addition - HELD THAT:- Assessee had originally claimed puja expenses only which stood treated as sundry balances written off. Be that as it may, there can hardly be any dispute that puja expense as incurred wholly and exclusively for the purpose of business since they relate to assessee’s business sites in civil construction business. We further notice that the CIT(A) has rightly placed reliance on hon'ble apex court’s decision in T.R.F. Ltd. vs. Commissioner of Income Tax [2010 (2) TMI 211 - SUPREME COURT] to hold that it is no more necessary as per the amended statutory provision w.e.f 01.04.1989 to prove that the corresponding sums have become actually irrecoverable. We thus conclude that the CIT(A) has rightly reversed the assessment findings on these twin counts of puja as well as sundry balance. The Revenue fails in its third substantive grievance as well. Disallowance u/s 14A qua exempt dividend income - HELD THAT:- We notice that the Assessing Officer had invoked Rule 8D (2)(ii) disallowance of IT Rules, 1962 to disallow the impugned proportionate interest expenditure which stand restricted to the extent of dividend income only in lower appellate proceedings. Hon'ble Delhi high court’s decision in Joint Investment Ltd. vs. Commissioner of Income Tax [2015 (3) TMI 155 - DELHI HIGH COURT] holds that such a disallowance cannot exceed the exempt income amount itself. We thus uphold the CIT(A)’a findings qua this last issue as well
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