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TMI Blog2015 (7) TMI 282X X X X Extracts X X X X X X X X Extracts X X X X ..... d in favour of revenue for statistical purposes. Disallowance of depreciation on vehicle - whether the depreciation cannot be allowable merely because the assessee has acquired the vehicle during the year but it should have been put to use for business for availing the depreciation - CIT(A) allowed claim - Held that:- The asset was undisputedly purchased and came in the possession of assessee within the financial year relevant to assessment year under consideration in this appeal. The AO has not disputed this fact that the vehicle was purchased during the financial year under consideration for the purpose of business of the assessee and in this situation, it can safely be presumed that the vehicle was put to use and ready for use in the assessee’s business organization and hence, CIT(A) was right in allowing depreciation to the assessee deleting the impugned addition made by the AO - Decided against revenue. - ITA No.1587/Del/2013 - - - Dated:- 30-6-2015 - Shri J.S. Reddy and Shri Chandramohan Garg, JJ. For the Petitioner : Shri Vivek Wadekar, CIT (DR) For the Respondent : Shri Rahul Khare, Adv. ORDER PER C.M. GARG, JUDICIAL MEMBER This appeal by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Authorities in estimating undisclosed investment. To this extent the Ld. AO's action is worth supporting in principle. However, the alternative claim of allowing expenses against this deemed income has considerable force since the payment of royalty would go hand in hand with any assessment of income from illegally mined stock. Since this fact is evident from the same set of documents from which the Ld. AO has worked out the undisclosed investment, it would be only fair to allow relief of ₹ 45,18,755/- against the impugned addition. Thus the Appellant gets relief of ₹ 45,18,755/- from the addition of ₹ 48,21,163/-. 4. On vigilant reading of the order of the Tribunal in the case of M/s Swastik Stone Enterprises (supra), we observe that in the similar facts and circumstances, the issue of expenses under the head of transportation and labour charges for obtaining illegal stock was remitted to the file of AO for a fresh consideration in accordance with the appellate orders of the District Magistrate, Nainital on this issue. The relevant operative part of the order of the Tribunal dated 18.1.2013 reads as under:- 3. In this case it is observed that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n made by the Assessing Officer towards the undisclosed profit and capital employed in the business to the tune of ₹ 11,14,179/- is hereby confirmed and no interference is called for. 5. Against the above order the Assessee is in appeal before us. 6. We have heard the rival contentions in light of the material produced and precedent relied upon. Ld. Counsel of the assessee submitted that the in identical circumstances in this tribunal in I.T.A. No. 419/Del/2009 for A.Y. 2005-06 of M/s Krishna Store Industries Pvt. Ltd. vs. DCIT vide order dated 23.12.2009 has remitted the matter to the file of the Assessing Officer. Hence, he prayed that accordingly, this matter should also be remitted to the file of the Assessing Officer. Ld. Departmental Representative on the other hand, relied upon the orders of the authorities below. 6.1 We have carefully considered the submissions and perused the records. We find that the in the case of M/s Krishna Store Industries Pvt. Ltd. vs. DCIT (Supra) the tribunal had adjudicated the matter as under:- 4. In this case, the assessee company is engaged in the manufacturing and sale of stone grits. During the course of assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same has been said to be a matter of adjudication pending before the Divisional Commissioner, Nainital. Both the authorities had totally relied upon the order of the DM, Nainital. Since the same is pending before the Divisional Magistrate, Nainital, the same cannot be said to be final and conclusive. 7.1 In this view of the matter, we remit the issue to the files of the AO to consider the same afresh after examining the appellate orders of the Divisional Commissioner, Nainital on this issue. Needless to add that the assessee should be granted adequate opportunity of being heard. 6.2 A reading of the above shows that facts in the present case are identical to the one adjudicated by the tribunal in the aforesaid order. In this case also the matter for adjudication is pending before the Divisional Commissioner, Nainital. Both the authorities have totally relied upon the order of the DM, Nainital. Since the same is pending before the DM, Nainital, the same cannot be said to be final and conclusive. Accordingly, respectfully following the above precedent, we remit the issue to the file of the Assessing Officer to consider the same afresh, after examining the appellate or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asset was for the purposes of business it has to be assumed that it was ready for use in the Appellant's business and would thus merit charging depreciation on. In view of this the Appellant gets relief of ₹ 86,348/- from the total addition on this account. 7. In view of above, we hold that the asset was undisputedly purchased and came in the possession of assessee within the financial year relevant to assessment year under consideration in this appeal. The AO has not disputed this fact that the vehicle was purchased during the financial year under consideration for the purpose of business of the assessee and in this situation, it can safely be presumed that the vehicle was put to use and ready for use in the assessee s business organization and hence, CIT(A) was right in allowing depreciation to the assessee deleting the impugned addition made by the AO. Accordingly, we are unable to see any reason to interfere with the order of the first appellate authority on the issue of depreciation and hence, ground no. 2 of the revenue is dismissed. 8. In the result, the appeal of revenue is partly allowed for statistical purposes. Order pronounced in the open court on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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