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2011 (8) TMI 749 - AT - Income TaxDepreciation - Aeroplane vis a vis Aircraft - CIT invoked 263, aircraft owned by the assessee cannot be an aeroplane since it is much smaller, lighter and less powerful than an aeroplane and thus eligible for depreciation @ 25% instead of 40% - Held That - Aeroplane in comparison to aircraft has a fixed wings and is powered by propellers or jets and it s a submission of the assessee that aircraft owned by it has fixed wings and is powered by propellers or jets. There is no merit in observation of CIT - aeroplane is a machine much bigger, heavier and powerful than an aircraft which travels in the air more than an aircraft. Thus aircraft owned by the assessee cannot be considered only as Plant and machinery which is a term distinct to such type of aircraft. - t the Assessing Officer had granted the depreciation to the assessee @ 40% in accordance with the provisions of the Rule, therefore, such grant of depreciation cannot be considered to be a claim not supported by law, as the department cannot straightaway show that such claim of depreciation was not in accordance with the law and, in such, circumstances, the powers u/s 263 could not be invoked. Eligibility of Expense for Exempt Income - Relevant A/y 07-08 - CIT(A) upheld disallowances on retrospective applicability of Rule 8 - Held That - In case of Godrej & Boyce Mfg. (P.) Ltd. (2010 (8) TMI 77 - BOMBAY HIGH COURT) matter referred back to Assessing Officer to reconsider and re-adjudicate the same after giving the assessee a reasonable opportunity of hearing. Applicability of 40A(2) - Commission paid 2.3% of turnover paid to the directors but no supporting evidence has been placed on record by the assessee to substantiate that such payment was supported by the resolution - held that - it is not the case of the assessee that section 40A(2)(b) is not applicable. Under the provisions of section 40A(2)(a), the Assessing Officer has an authority to disallow any part of expenditure which is paid to the persons described in section 40A(2)(b) if he is of the opinion that such expenditure paid by the assessee is excessive or unreasonable - case remanded back. Cash payment in excess of Rs. 20,000/ - Section 40A(3) - Airport Authority of India (AAI) towards Rout Navigation (RNFC), landing and parking and/or duty on fuel and the charges for fuel which are made out of the buffer with IOC, but the duty was to be paid in cash before the flight could take off. It was submitted that there are several reasons for making such cash payments as these are the payments made in respect of non-scheduled aircrafts or airlines which, as per rules of Government of India, - held that - Such payments are to be made in cash as per the directions given by AAI. Such fact has been certified by the AAI. If it is so, then, in our opinion, learned CIT (A) has rightly granted the relief to the assessee as the same may fall under the exceptions specified in Rule 6DD (k) - Decided in favor of assessee.
Issues Involved:
1. Validity of proceedings initiated under Section 263 of the Income-tax Act, 1961. 2. Interpretation of law and findings based on assumptions and surmises. 3. Evaluation of evidence produced by the assessee. 4. Investigation of details regarding depreciation. 5. Distinction between aeroplanes and aircrafts. 6. Disallowance under Section 14A. 7. Excessive remuneration, bonus, and commission to directors. 8. Disallowance under Section 40A(3). Issue-wise Detailed Analysis: 1. Validity of proceedings initiated under Section 263 of the Income-tax Act, 1961: The CIT invoked Section 263, claiming that the assessee wrongly received 40% depreciation on the 'Beechcraft Super King Air B-200C' aircraft, which should have been 20%. The CIT argued that the Assessing Officer (AO) failed to investigate this matter, thus making the order erroneous and prejudicial to the revenue. The assessee contended that the AO had indeed investigated and allowed 40% depreciation, a permissible opinion under the law. The tribunal found that the AO had allowed the depreciation in accordance with the rules, and thus, the CIT's invocation of Section 263 was unjustified. 2. Interpretation of law and findings based on assumptions and surmises: The CIT's interpretation, based on definitions from Google, distinguished 'aircraft' from 'aeroplane,' arguing that the aircraft owned by the assessee did not qualify as an 'aeroplane' for higher depreciation. The tribunal disagreed, stating that the definitions and distinctions made by the CIT were not supported by the Income-tax Act or Rules. The tribunal emphasized that the aircraft owned by the assessee had characteristics of an aeroplane and was thus eligible for 40% depreciation. 3. Evaluation of evidence produced by the assessee: The assessee provided evidence, including departmental information, showing that similar aircrafts received 40% depreciation. The CIT ignored this evidence, assuming that the facts could not be identical. The tribunal found the CIT's assumption unfounded and recognized the consistency in the department's treatment of similar cases, supporting the assessee's claim. 4. Investigation of details regarding depreciation: The CIT concluded that the AO did not ask for details or investigate the issue of depreciation. The assessee presented a letter dated 1st October 2007, explaining the eligibility for 40% depreciation, which was on record. The tribunal noted that the AO had indeed considered this explanation, and thus, the CIT's conclusion was incorrect. 5. Distinction between aeroplanes and aircrafts: The CIT argued that the aircraft owned by the assessee was not an 'aeroplane' and thus not eligible for higher depreciation. The tribunal analyzed various definitions and concluded that the aircraft had fixed wings and characteristics of an aeroplane, qualifying it for 40% depreciation. The tribunal emphasized that the term 'aeroplane' in the relevant Appendix-I included such aircrafts. 6. Disallowance under Section 14A: The AO disallowed Rs.1,75,009 under Section 14A, calculated as per Rule 8D, which was upheld by the CIT(A). The tribunal noted that Rule 8D was not applicable for the assessment year 2007-08, as per the Bombay High Court's decision in Godrej & Boyce Mfg. Co. Ltd. v. Dy. CIT. The tribunal restored the issue to the AO for reconsideration as per the law. 7. Excessive remuneration, bonus, and commission to directors: The AO disallowed Rs.49,77,500 as excessive remuneration under Section 40A(2)(b), upheld by the CIT(A). The tribunal noted the unprecedented increase in payments and the lack of supporting evidence from the assessee. The tribunal restored the issue to the AO for re-adjudication, allowing the assessee to provide relevant material. 8. Disallowance under Section 40A(3): The AO disallowed 20% of cash payments totaling Rs.14,40,228 under Section 40A(3), which the CIT(A) deleted. The tribunal found that the payments were made in cash as per the Airport Authority of India's (AAI) requirements, supported by certificates from AAI. The tribunal upheld the CIT(A)'s decision, finding the payments fell under the exceptions in Rule 6DD(k). Conclusion: The tribunal allowed the appeals for ITA Nos.1557 & 1558/Del/2010, restored issues in ITA No.2215/Del/2010 for statistical purposes, and dismissed ITA No.3824/Del/2010.
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