9911796707
TMI Blog2002 (6) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... he expenditure incurred in the club was personal expenditure and not incurred wholly and exclusively for the purposes of assessee s business. 3. On appeal, the same was confirmed by the Commissioner (Appeals) against which the assessee is in appeal before us. 4. It is argued by the ld. counsel that this issue was squarely covered by the order of the Tribunal in the assessee s own case for assessment year 1984-85 wherein the entire expenditure incurred on the club was allowed as deduction. It was further stated that in the assessment years 1994-95 and 1995-96, no disallowance was made by the Assessing Officer though the orders were made under section 143(3) of the Act. Further reliance was placed on the cases reported in 18 TTJ (Bom. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se cylinders. However, the cylinders were used for less than 180 days in the accounting year, the depreciation was restricted to 50 per cent of the total depreciation admissible. 8. When the Assessing Officer asked the assessee to file various details in support of purchase of cylinders and hiring out the same to Sky Oxygen Co. Ltd., the assessee vide its letter dated 22-12-1998 submitted these details. It was stated that 510 cylinders were delivered on 1-11-1995, 340 cylinders on 18-11-1995 and 150 cylinders on 26-12-1995. When the Assessing Officer tallied the dates of deliveries of these cylinders vis-a-vis the copy of invoice raised by the seller, he found that though the cylinders have been sold by Averest Kanto Cylinders Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts were taken back and given to Bombay Bulk Carriers and Trivedi Transport Services for onward delivery to Sky Cylinders, the hirer. However, the Assessing Officer disbelieved the submissions of the assessee by stating that no documentary evidence has been filed by the assessee either from their side or from the side of the seller. The seller was therefore, to supply the serial number of cylinder supplied to Sky Oxygen Co. Ltd. on behalf of the assessee firm. Simultaneously, the hirer Sky Oxygen Co. Ltd. was also asked to furnish the serial numbers of cylinders supplied by the seller. The Assessing Officer noted that some of the numbers mentioned on the cylinders did not tally. He was, therefore, of the view that the transaction and purchas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, the Assessing Officers objection in respect of transportation of goods was also not based on facts. Everest Kanto Cylinders Ltd., the seller vide its letter dated 22-3-1999 has confirmed that goods vide invoice Nos. 334 to 337 and 392 were originally delivered to M/s. K.K. Transport Services for onward deliver to Sky Oxygen Co. Ltd. on behalf of the assessee. But it was found that M/s. K.K. Transport Services after lifting the material has kept in their godown and ultimately these consignments were delivered by Bombay Bulk Carriers and Trivedi Transport Services who were the sellers regular transporters. Vide this letter, the seller also gave the details of LRs with dates and other particulars which has also been confirmed by Bomba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erves to be deleted. 13. On the other hand, ld. DR supported the order of the Assessing Officer/Commissioner (Appeals). While stating so, the ld. DR further stated that though the assessee has claimed that there was only error in giving the serial numbers of cylinders, the same cannot be accepted because such error was beyond human probability. While relying on the decision reported in 250 ITR 575 (Delhi) and 245 ITR 428 (SC), the ld. DR stated that in case the part purchases were bogus, the depreciation on the entire purchases was disallowable. 14. We have considered the rival submissions. As mentioned earlier, the assessee purchased 1000 industrial gas cylinders from Everest Kanto Cylinders Ltd. These cylinders were to be hired ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arty and sent the goods through Bombay Bulk Carriers and M/s. Trivedi Transport Services. There is no dispute that the goods were transported by these two transporters. The payment has been made to them regarding transport charges. In view of confirmation by both the transporters that they had transported the goods, mere mention of K.K. Transport in the invoice will not lead to a conclusion that the goods were not transported to Sky Oxygen Co. Ltd. There are ample evidences on record which were also with the lower authorities proving that the goods were purchased and hired out to Sky Oxygen Co. Ltd. Under these circumstances, we have no hesitation in holding that the purchases of cylinders by the assessee and hiring them out to Sky Oxygen C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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