2019 (2) TMI 2095 - AT - Income Tax

Addition on account of depreciation - assessee has claimed depreciation @ 30% on machinery claimed as commercial vehicle - AO noticed assessee is not doing business of motor buses motor lorries motor taxies used in a business of running them on hire thus assessee is entitled to depreciation @ 15% which is applicable to plant machinery - assessee submitted that the ld.CIT(A) has passed an ex parte order for which the appeal is pending before the Tribunal against such ex parte order and various decisions relied on by the assessee at the time of hearing before the Assessing Officer were not considered like decision of M/s Sayeed Iqbal 2014 (1) TMI 744 - ITAT JODHPUR wherein it has been held that depreciation on tippers road rollers and JCB will be allowable @ 40% as against 25% allowed by the AO treating these machinery as plant and machinery and not under the category of motor vehicles - HELD THAT - We deem it proper to restore the issue to the file of the Assessing Officer with a direction to decide the issue afresh in the light of various decisions cited above. Needless to say the Assessing Officer shall give due opportunity of being heard to the assessee and decide the issue as per fact and law. We hold and direct accordingly. The first issue raised by the assessee in the grounds of appeal is accordingly allowed for statistical purposes. Addition u/s 68 - partner introduced the money in the firm - assessee has not furnished any cash flow statement to establish the withdrawal and the deposit of cash during the course of appeal proceedings - Addition n the hands of the partnership firm stating that there is no exigency for introduction of such loan in the shape of cash - HELD THAT - Although the assessee has not explained such business exigency however it is a fact that there are withdrawals from the bank account of the partner apart from his declaration of income u/s 44AD of the IT Act. The Revenue has not proved that the Partner after withdrawal of the money from the bank has utilized the money otherwise than for investing in the partnership firm. There is nothing on record to show that the partner has utilized the money for acquisition of any capital asset or spent the money towards some marriage in the family or on other such occasions where huge cash is required to be invested or expended. It has been held in various decisions that when a partner introduces the money in the firm either in the shape of capital or loan to the partnership firm addition if any can be made only in the hands of the partner and not in the hands of the partnership firm as long as the partner confirms to have invested towards capital or as loan to the firm. Since the partner in the instant case has admitted to have invested in the firm in the shape of unsecured loan and the withdrawals from the bank account has not been disputed by the Revenue therefore we are of the considered opinion that addition if any could have been made in the hands of the partner namely Shri P.K. Wadhwa but certainly not in the hands of the partnership firm. As long as the partner has sufficient means to explain the source of such loan the Revenue cannot treat the same as unexplained cash credit u/s 68 in the hands of the partnership firm merely stating that there is no exigency for introduction of such loan in the shape of cash - Decided in favour of assessee.

Summary

Issues Involved:
1. Sustaining the addition of Rs.25,04,347/- on account of depreciation.
2. Addition of Rs.41 lakhs made under section 68 of the IT Act.

Analysis:

Issue 1: Sustaining the addition of depreciation
The assessee, a partnership firm, claimed depreciation at a higher rate of 30% on various vehicles and machinery used in its business. However, the Assessing Officer restricted the depreciation to 15% for vehicles not used for carrying materials and machinery not categorized as motor vehicles. The CIT(A) upheld this decision. The Tribunal noted that various decisions supporting higher depreciation rates on specific machinery were not considered. The Tribunal directed the issue to be restored to the Assessing Officer for fresh adjudication in light of these decisions, allowing the appeal for statistical purposes.

Issue 2: Addition under section 68 of the IT Act
The Assessing Officer disallowed Rs.41 lakhs of unsecured loans received in cash by the firm, treating it as unexplained income under section 68. The CIT(A) upheld this decision, stating that the firm failed to provide a satisfactory explanation for the cash loans. The Tribunal, however, observed that the partner had sufficient means to extend the loan, supported by a cash flow statement. Referring to legal precedents, the Tribunal held that if a partner confirms advancing sums to the firm, no addition should be made in the hands of the firm. As the partner had admitted to investing in the firm as an unsecured loan, the addition should have been made in the partner's hands, not the firm's. The Tribunal directed the Assessing Officer to delete the addition, allowing the appeal on this issue.

In conclusion, the Tribunal allowed the first issue for statistical purposes and allowed the second issue, directing the deletion of the addition made under section 68 of the IT Act.