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TMI Blog2019 (6) TMI 816X X X X Extracts X X X X X X X X Extracts X X X X ..... ranted. - R/TAX APPEAL NO. 41 of 2019 - - - Dated:- 12-6-2019 - MR J. B. PARDIWALA AND MR A. C. RAO, JJ. For The Appellant (s) : MRS KALPANA K RAVAL (1046) For The Opponent (s) : None ORAL ORDER ( PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) 1 This Tax Appeal under Section 260A of the Income Tax Act, 1961 (for short, the Act, 1961 ) is at the instance of the Revenue and is directed against the order passed by the Income Tax Appellate Tribunal, Surat Bench, Surat dated 28th June 2018 in the ITA No.1536/Ahd/2016/SRT for the assessment year 2010-11. 2 The Revenue has proposed the following substantial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defined in the Appendix 1 and the said definition does not require that the vehicle should be registered as a commercial vehicle under the Motor Vehicle Act. 2009. Therefore. Conclusion drawn by the AO allowing the claim of the assessee cannot be held as erroneous and prejudicial to the interest of Revenue. 13. From the impugned order of ld. CIT para 5 it is discernible that the ld. CIT(A) firstly stated that the depreciation applicable to motor cars is 15% and the AO has allowed depreciation @50% which is applicable to the commercial vehicles, without any examination on the issue therefore. The order is set aside with a direction to the AO to reframe the assessment afresh after examining the issue. First of all, allegat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n between lack of enquiry and inadequate enquiry if there is an enquiry, even inadequate, that would not by itself give occasion to the CIT to pass order u/e 263 merely because he has a different opinion in the matter and such a course of action is open to him only in the cases of lack of enquiry. As we have held earlier that the AO has made enquiry on the issue therefore, this is not a case of no enquiry or lack of enquiry. Thus, ratio of the decision Hon ble High Court of Delhi In the case of Sunbeam (supra) supports the contention of the Id. AR. Our conclusion also gets strong supports from the decision of Hon ble Jurisdictional High Court in the case of Minalben S Parikh (supra) and decision of Hon ble Delhi High court in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile working the disallowance of deduction claimed u/s. 80IB of ₹ 12,45,153/had considered depreciation of ₹ 41,62,948/which includes depreciation claimed on new motor car purchased of ₹ 8.85,608/and the CIT(A) has allowed the appeal on the issue and so the principle of doctrine of merger applies. As per reliance on the decision of Hon ble Jurisdictional High Court of Gujarat in the case of CIT vs. Shashi Theatre 114 Taxman 214 (Guj), as relied by the ld. AR, where the claim of the assessee was partly allowed by the AO and the first appellate authority allowed the claim on rest part which was disallowed by the AO, then irrespective of doctrine of merger since appellate authority had given its due consideration to the claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hah Rukh Khan (supra). 19 On the basis of foregoing discussion, we are inclined to hold that the ld. CIT did not assume valid jurisdiction to revise the impugned assessment order dated 15.03.2013 for AY 201011 and directing the AO to reexamine the issue of allowability of depreciation on car without impugned order of CIT is not valid and sustainable being passed without having valid jurisdiction and against the mandate of s. 263 of the Act and hence, the same is not only sustainable but bad in law. Consequently, impugned notice and order u/s. 263 of the Act dated 31.03.2015 and all subsequent proceedings in pursuant thereto are hereby quashed. 4 Having heard Mrs. Kalpana K. Raval, the learned senior s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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