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TMI Blog2014 (1) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the reasons beyond the control of the assessee. It is stated by the assessee that the assessee was served with the order of the Commissioner of Income Tax (Appeals) on 8.8.2012 and has forwarded the same to his Accountant for filing of appeal before the Tribunal. However, he proceeded on a pilgrimage to various places in North India and started from Hyderabad on 2.10.2012 and returned to Hyderabad on 23.10.2012 and thereafter, fell ill. He submitted that he was diagnosed as suffering from Typhoid by his Doctor and was advised 40 days of rest and immediately after recovery the assessee filed the present appeal on 30.11.2012 and thus has resulted in delay of 54 days. He, therefore, prayed that the delay may be condoned. In support of his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Tribunal. 5. Further, as held by the jurisdictional High Court in the case of Surya General Traders cited (supra), where the assessee has a case on merits, the technical plea of limitation should not defeat his claim and should not lead to injustice. In view of the same, I am inclined to condone the delay of 54 days in filing the appeal. 6. On merits, the brief facts of the case are that the assessee was the proprietor of M/s. R.Vishwanath Transport Company and was engaged in the business of hiring of vehicles to IOC Limited for transportation of Gas Cylinder from Cherlapally and Thimmapura. The assessee filed his return of income on 24.08.2005 which was processed on 20.02.2006. Subsequently, the Assessing Officer noticed that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to tax. 7. Aggrieved, assessee preferred an appeal before the CIT(A) who confirmed the Order of the Assessing Officer by holding that the assessee had received the bus without a body i.e., only a chasis and that it is not possible to transport M.S.Radar (which stands for mild steel) to transport on chasis. He further observed that on the very day on which the M.S. Radar was transported, the vehicle was sent for body building which is not possible. He also observed that the assessee did not have a certificate and permission from the authorities to transport the goods on this bus and transporting goods on a chasis without a body is violative of law. He, therefore, confirmed the addition made by the Assessing Officer. 8. Aggrieved, assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned D.R. on the other hand supported the Orders of the authorities below and submitted that the assessee has contravened the provisions of the Transport Department and therefore, the claim of putting the vehicle to use cannot be accepted and the claim of depreciation was rightly disallowed by the authorities below. As far as the alternative claim of computation of income under section 44AE is concerned, the learned D.R. submitted that this is a fresh claim made before the Tribunal and therefore, cannot be entertained at this stage. 10. In the rejoinder, the learned Counsel for the assessee submitted that though the assessee has not made the claim of computation of income under section 44AE before the authorities below, this being the lega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y opinion, this observation of the authorities below is not justifiable. Under the Income Tax Act, to allow the claim of depreciation, the assessee has only to prove that he has put the vehicle to use before the relevant date. If the vehicle is used in contravention of the Rules provided by the respective Transportation Department, it would not effect the claim of depreciation under the Income Tax Act. It is for the respective transportation department to take action for the contravention of its Rules but the Income Tax authorities cannot disallow the claim of depreciation. I find that the authorities below have disbelieved the claim of the assessee of having used the vehicle. The CIT(A)'s observation that the assessee's claim that he has t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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