2015 (8) TMI 875 - AT - Income Tax

Higher rate of depreciation - Assessee had claimed depreciation on the Dumpers at the rate of 30% - AO allowed at the rate of 15% - CIT(A) allowed the assessee s appeal - Held that - The Assessing Officer concluded that when the dumpers are given on hire, the assessee would be entitled for depreciation at the rate of 30%. However, that is not the correct interpretation of the law, because if the assessee is transporting the goods of other persons, then al so the dumper is given on hire and under such circumstances, in view of the decision in the case of Anup Chand & Co. 1999 (6) TMI 25 - MADHYA PRADESH High Court the assessee was entitled for higher rate of depreciation as the vehicles are to be considered as being given on hire for transportation of goods of other persons. The assessee was not transporting its own goods but the goods of other persons and deriving hire charges. By considering the totality of the facts and circumstances, we do not find any infirmity in the order of ld. CIT(Appeals) on this count - Decided in favour of assessee. Unexplained cash credit - CIT(A) deleted the addition - Held that - Out of the total sundry creditors aggregating to ₹ 2,19,93,756/-, the Assessing Officer has made the addition of ₹ 6,50,000/- as the assessee neither produced the creditors nor gave any detail s in regard to suppliers. Merely submitting the bills in support of purchases cannot be the basis for deleting the addition unless the genuineness of purchases was duly established. Ld. CIT(Appeals) has merely deleted the addition on the ground that identity had not ultimately been doubted by the Assessing Officer. However, when confirmation was not filed by the creditors, then proper course was to give one more opportunity to the assessee to establish the genuineness of creditors. Therefore, we set aside the order of ld. CIT(Appeals) on this ground and restore the matter back to the file of Assessing Officer for verification.- Decided in favour of revenue for statistical purposes. Disallowance on account of payment of EPF after the due date - CIT(A) deleted the addition - Held that - CIT(Appeals) deleted the addition by following the decision of Vinay Cement Limited reported in (2007 (3) TMI 346 - Supreme Court of India) wherein it has been held that statutory items like PF and ESI if paid before the due date of filing of the return have to be allowed irrespective of the fact whether the contributions related to the employer or the employee. It is not disputed by the Department that the payment s have been made before due date of filing of the return. We, accordingly confirm the order of ld. CIT(Appeals).- Decided in favour of assessee. Disallowance of excessive liability shown - CIT(A) deleted the addition - Held that - In this case, the Assessing Officer has computed the disallowance by applying the ratio of expenses claimed in different years without pointing out even on a single item, which was not verifiable. We, therefore, do not find any reason to interfere with the order of ld. CIT(Appeals). - Decided in favour of assessee. Disallowance on account of excessive expenses claimed - CIT(A) deleted the addition - Held that - reason to interfere with the order of ld. CIT(Appeals) because the assessee had duly explained the reasons for increase in expenses as noted by the ld. CITR(Appeals) and the assessee s explanation on account of explosives being supplied by contractee had not duly been considered by the Assessing Officer. Therefore, the ad hoc disallowance, in any view of the matter, was not justified. - Decided in favour of assessee.

Summary

Issues Involved:

1. Disallowance of depreciation.
2. Unexplained cash credit.
3. Payment of EPF after the due date.
4. Unverifiable dumper and vehicle hire charges.
5. Excessive expenses claimed.

Detailed Analysis:

1. Disallowance of Depreciation:

The assessee claimed depreciation of Rs. 95,07,297/-, with Rs. 70,26,818/- at a rate of 30% on dumpers. The Assessing Officer (AO) allowed only 15%, arguing the dumpers were not hired out but used by the assessee for its own business. The CIT(A) allowed the higher rate, noting the dumpers were used for transporting goods of other persons, aligning with the decision in Anup Chand & Co. and CBDT Circular No. 652. The Tribunal upheld the CIT(A)'s decision, confirming the dumpers were indeed used for hire, thus justifying the higher depreciation rate.

2. Unexplained Cash Credit:

The AO added Rs. 6,50,000/- under Section 68 due to unverified credit from Ravi Bhattar, who did not respond to a notice under Section 133(6). The CIT(A) deleted the addition, emphasizing the AO's failure to conduct further inquiries. The Tribunal, however, remanded the matter to the AO for verification, noting the need for the assessee to establish the genuineness of the creditors.

3. Payment of EPF After the Due Date:

The AO disallowed Rs. 1,30,526/- for EPF payments made after the due date. The CIT(A) deleted the addition, citing the Supreme Court's decision in Vinay Cement Limited, which allows such payments if made before the return filing due date. The Tribunal upheld the CIT(A)'s decision, confirming the payments were indeed made timely.

4. Unverifiable Dumper and Vehicle Hire Charges:

The AO disallowed Rs. 4,17,512/- from Rs. 89,93,832/- in dumper and pay loader hire charges, citing unverifiable payments. The CIT(A) deleted the addition, arguing the AO's reliance on ratios without specific evidence was insufficient. The Tribunal agreed, finding no reason to dispute the CIT(A)'s decision due to the lack of concrete evidence from the AO.

5. Excessive Expenses Claimed:

The AO disallowed Rs. 5,00,000/- due to increased expenses despite decreased gross receipts. The CIT(A) deleted the disallowance, noting the increase was mainly due to explosives supplied by contractees, a fact the AO had overlooked. The Tribunal upheld the CIT(A)'s decision, finding the ad hoc disallowance unjustified given the explanations provided by the assessee.

Conclusion:

The Tribunal dismissed the Revenue's appeal on all grounds except the unexplained cash credit, which was remanded for further verification. The appeal was thus partly allowed for statistical purposes.