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TMI Blog2018 (10) TMI 284X X X X Extracts X X X X X X X X Extracts X X X X ..... alance sheet for the year under consideration is essential for adjudicating the issue on hand. Therefore we are inclined to sent back issue to the file of AO for fresh adjudication with the direction to check whether the own fund of the assessee exceeds the amount of money advanced/invested without charging any interest income. - Decided in favour of assessee for statistical purposes. - I.T.A. No.2962/Ahd/2014 - - - Dated:- 3-10-2018 - Shri Waseem Ahmed, Accountant Member And Smt Madhumita Roy, Judicial Member For the Appellant : Shri Mukesh Patel, A.R. For the Respondent : Shri Mudit Nagpal, Sr.D.R. ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned appeal has been filed at the instance of the Assessee against the order of the Commissioner of Income Tax (Appeals) II, Baroda [CIT(A) in short] vide appeal no.CAB/II-447/13-14 dated 05-08- 2014 arising in the matter of assessment order passed under s.143(3) of the Income Tax Act, 1961(here-in-after referred to as the Act ) dated 03-03-2014 relevant to Assessment Year (AY) 2011-12. 2. The grounds of appeal raised by the assessee are as under:- 1. That the learned CIT(A) erred in law and on fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exceed more than 6000 kg. 5.2 The assessee further submitted that it is claiming depreciation on its vehicle namely Mercedes carrying the weight of 2220 kg which is below the specified limit. Thus, as per the assessee he was eligible for depreciation @50% on the value of vehicle. 5.3 However, the AO disagreed with the contention of the assessee on the ground that higher rate of depreciation available to the commercial vehicle which needs to be registered with the RTO under the category of commercial vehicles. The vehicle on which the depreciation was claimed at the rate of 50% was not commercial vehicle. Therefore, the AO held that the assessee cannot claim depreciation @50% rather he is eligible for depreciation @15% at value of the vehicle. Accordingly, the AO disallowed the excess depreciation of ₹ 8,12,334/- (depreciation 11,60,477/- being 50% - 3,48,143 being 15% of the value of vehicle) and added to the total income of the assessee. 6. Aggrieved, assessee preferred an appeal to ld CIT(A). The assessee before the ld CIT(A) submitted that there is no requirement to register the vehicle with RTO under the category of commercial vehicle under the income tax Act. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s discussed above are not in dispute, therefore, we are not inclined to repeat the same for the sake of brevity, convenience and adjudication. 9.1 As per the notification no.10/2009 dated 19 January 2009 issued by the CBDT a vehicle purchased during the specified period and put to use before the 1st October, 2009 is eligible for depreciation at higher rate i.e. 50%. In the CBDT Circular there is no mentioned that the vehicle needs to be registered with the RTO under the category of commercial vehicles. Therefore, we are of the view that the assessee is eligible for the depreciation on a higher rate. We also note that in the identical facts and circumstances this Tribunal in the case of Shree Balaji Products (supra) has decided the issue in favour of the assessee. The relevant extract of the order is reproduced below: 5. In the present case, the ld. AO has granted depreciation at the rate of 15% without examining relevant provisions. It appears that his finding is based upon his experience and past impression. He was of the opinion that once Board has not granted higher rate of depreciation to cars, which are put in the business of hiring, then how a partner, who used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest of ₹ 15,14,087/-. 11. The assessee during the year has claimed interest expenses of ₹ 15,14,087/- on the money borrowed from several parties. The assessee was paying interest @15% on all the loans taken from the parties except in one case where he was paying interest @12%. The amount of loan and interest paid thereon along with rate of interest is detailed as under: Depositor Loan Amount Interest Amount Interest Rate (%) Dipak M Shroff 1141000 171150 15 Omkar Co 1760000 264000 15 P K Co 930000 139500 15 Shyampriya Finance 1500000 225000 15 Bhadresh A Patel 1580489 237073 15 Bhadresh A Patel HUF 312662 46899 15 Bharatiben A Patel 599688 89 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4,56,940/- which is sufficient enough to justify that the money was advanced/invested out of the own fund available with him. The ld AR for the assessee in support of his claim relied on the judgment of High Court of Bombay on the CIT vs. Reliance and Utilities and Power Ltd. reported in 178 Taxman 135. 13.1 Ld AR for the assessee also submitted that no disallowance was made on account of diversion of fund as discussed above in the subsequent assessment year 2012-13. 14. On the other hand, the ld. DR before us submitted that there is no balance sheet available to the assessee suggesting that own fund exceeds the amount of loan and advances/investment at the above financial year. Therefore, the ld. DR submitted that in the absence of the relevant information no relief can be given to the assessee. The ld. DR vehemently supported the order of authorities below. 15. Ld AR in his rejoinder submitted that the matter can be sent back for further verification by the AO to check whether own fund of the assessee exceeds the amount of investment as discussed above. 16. We have heard the rival contentions and perused the materials available on record. The facts are not undisput ..... X X X X Extracts X X X X X X X X Extracts X X X X
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