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TMI Blog2016 (8) TMI 759X X X X Extracts X X X X X X X X Extracts X X X X ..... nish Borad, AM Appellant by Smt. Urvashi Sodhan, AR Respondent by Shri Keyur Patel, Sr. DR ORDER Per Manish Borad, Accountant Member This appeal of the assessee is directed against the order of ld. CIT(A)-IV, Baroda dated 13.03.2013 vide appeal No.CAB-IV-N- 332/2011-12 relating to Asst. Year 2009-10. Assessment u/s 143(3) of the IT Act, 1961 (in short the Act) was framed by DCIT, Kheda Circle, Nadiad on 29/11/2011. We observe that this appeal is time barred by 29 days and on going through the reasons of delay in filing this appeal we find that assessee was prevented from filing the appeal within 60 days as assessee was awaiting the outcome of application dated 25.4.2013 filed for rectification u/s 154 before ld. CIT(A)-IV, which was rejected on 5/6/2013 and this order of rejection of application was received by assessee on 12.07.2013. In the given circumstances, assessee was having reasonable cause for not filing appeal in time, we accept the same and condone the delay and proceed to adjudicate the appeal. Following grounds have been raised by the assessee:- (1) The learned Commissioner (Appeal) failed to understand the facts and circumstances of the case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... total income at ₹ 34,15,285/-. The case was selected for scrutiny assessment and notice u/s 143(2) of the Act was issued and duly served upon the assessee on 28.8.2010. During the course of assessment proceedings, ld. Assessing Officer went through the details of assets required for depreciation claim thereon and found that assessee purchased a new motor car in March, 2009 at a cost of ₹ 10,21,134/- and claimed depreciation @ 25% in block of depreciation @ 50% depreciation meant for new commercial vehicles under the block-III Machinery Plant (3) (via) of New Appendix-I under Rule-5 of the IT Rules, 1962. The Assessing Officer was of the view that assessee being engaged in the business of marketing of bidi and cars are not used for hiring and therefore, the motor cars are subject to depreciation @ 15% and not 50% on block rate and accordingly revised depreciation amount on the w.d.v. of the car as well as car purchased during the year and disallowed excess depreciation of ₹ 1,85,486/-. 5. Aggrieved, assessee went in appeal before ld. CIT(A) and the same was rejected by ld. CIT(A) by observing as under :- 6. The reason for making disallowance of excess depr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred and relied on the decision of the Tribunal Mumbai Bench in the case of Daleep S. Chandnani vs. ACIT in ITA Nos.7307(Mum) of 2003 and 4059(Mum) of 2004 for Asst. Years 1999-2000 and 2001-02 vide order dated 12th October, 2006, wherein similar type of issue was adjudicated and decision was delivered in favour of assessee. 6. On the other hand, ld. DR supported the orders of lower authorities. 7. We have heard the rival contentions and perused the material on record. Ground Nos. 2 3 of the appeal relate to disallowance of depreciation of ₹ 6,787/- and ₹ 1,78,699/- hitherto claimed by the assessee on w.d.v. and new motor car purchased falling under the category of 50% block of depreciation which was not accepted by the Assessing Officer on the basis of specific observation that assessee s business is not of running cars on hire and assessee s claim of depreciation under 50% rate is not admissible. 8. Rates for claiming of depreciation for the year under appeal are available at New Appendix-1 with respect to Rule 5 of IT Rules and impugned asset on which depreciation has been disallowed falls under category 3 of Part-A relating to machinery and plant. We fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent years. Thus, the cost of car was to be treated as WDV for computing depreciation thereon at the specified percentage. Further, the Explanation to the third proviso to section 32 defines that the expression 'commercial vehicle' would mean 'light motor vehicle' and the 'light motor vehicle' as defined in the , Motor Vehicles Act, 1988, means any transport vehicle or omini bus, the gross physical weight of either of which or a motor car or a tractor or road roller the unladen weight of which does not exceed 7,500 kgs. Thus, a motor car not exceeding the specified weight is covered under the definition of 'light motor vehicle'. It is further provided that commercial vehicle would not include 'maxi-cab' and 'motor cab'. The 'maxi-cab' as per provision of the Motor Vehicles Act means any motor vehicle constructed or adopted to carry more than six passengers but not more than twelve passenger1; excluding the driver for hire or reward. Similarly, the term 'motor cab' also excludes any motor vehicle for hire or reward. If the provisions of Explanation to third proviso to section 32 and the definition of maxi-cab and motor c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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