9911796707
TMI Blog2020 (1) TMI 1341X X X X Extracts X X X X X X X X Extracts X X X X ..... roof upon the AO in deleting addition of Rs. 95,00,000/- made on account of disallowance of Rs. 1,00,00,000/- from Fright & Truck Running expenses." 4. "Whether on the facts and circumstances of the case the CIT(A) justified in law in shifting onus of burden of proof upon the AO in deleting addition of Rs. 24,00,000/- made on account of disallowance of Rs. 25,00,000/- from Freight and Truck Repair & Maintenance expenses." 5. "Whether on the facts and circumstances of the case the CIT(A) justified in law in shifting onus of burden of proof upon the AO in deleting addition of Rs. 1,00,00,000/- made on account of disallowance under the head of depreciation." 6. "Whether on the facts and in the circumstances of the case, the order of the Ld. CIT(A) is perverse to the facts." 7. "Any other ground that may be adduced at the time of hearing." 2. Brief facts of the case are that, the assessee is a Private Limited Company, registered under the provisions of The Companies Act, 1956. For the A.Y. 2010-11, the assessee-company had e-filed its return of income on 08-10-2010 declaring therein total income NIL and claiming a refund of Rs. 6,44,994/- on account of TDS in excess of tax pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o M/s. Tata Motor Finance Ltd., it has been clarified that Ld. A.O. has made disallowance of Rs. 33,25,633/- for non-deduction of IDS for interest paid to Tata Motor Finance Ltd. and thus, there was no discrepancy in both the figures. After due consideration, I find significant force in the argument of the appellant that there is no discrepancy in the figure mentioned in Ledger A/c and amount disallowed by A.O. Even if the recipient has shown more amount, then same should not be viewed adversely because assessee is not at fault for such mistake. As far as objection of Ld. A.O. with regard to compliance of Rule 31ACB is concerned which requires submission of Form 26A with certificate Annexure 'A' is concerned, I find approach of Ld. A.O. being hyper-technical. He has given more importance to technicalities instead of factual aspect of the case. Nevertheless, during appellant proceedings, ld. AR of the assessee filed Form 26A. In view of this, A.O. is directed to grant relief of Rs. 33,25,633/- representing interest paid to M/s. Tata Motor Finance Ltd. for which necessary details/evidences in Form 26A & Annexure A has been filed by the appellant. As far as disallowance of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded by the Ld. CIT(A) at Pgs. 19-20 to the following effect: "Ground# 1: Rejection of book results u/s. 145: 8. Adverting to ground wise discussion, it is seen that by raising ground# 1 appellant has challenged the assessment order as unsustainable in law because income was not computed in accordance with the audited books of accounts wherein no defects were found in maintenance of books of accounts by Ld. AO. Because, as per appellant, books of accounts were not rejected by invoking the provision of Section 145 of the Act by specifying any defects, Ld. A.O. cannot make addition and thus impugned assessment order deserves to be discarded. I have duly considered the contention of the appellant and took notice of observations made in the assessment order that during assessment proceedings, books of accounts with details were produced which were examined on test-check basis. My attention was also drawn to the fact that Ld. A.O. neither pointed out any defects nor expressly rejected, books of accounts, so, as per ld. AR of the assessee profit disclosed in audited books cannot be disturbed and additions/disallowances cannot be made. In support of this proposition, Ld. A.R. pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bills/vouchers, it was not appropriate for the Ld. CIT(A) to reduce the ad hoc disallowed made by the Assessing Officer to only Rs. 5 Lakhs instead of Rs. 1 Crore. 5.2. Per contra, Ld. AR had submitted that the expenses of the assessee drastically have reduced from 76.64% to 73.56% in the assessment year under consideration and further it was submitted that the Revenue cannot be given a second hearing to the case and no fruitful purpose would be served for remanding back the matter to the file of CIT(A) or to the file of AO. He had submitted that once the books of account is rejected, then, the AO cannot make ad hoc disallowance of the expenditure and he was required to specifically provide the details of bills/vouchers, which were in his understanding were not correct or excessive. He had further submitted that the action on the part of the Ld. CIT(A) was in accordance with law. 5.3. We have heard the rival submissions and perused the material available on record. In our considered opinion, once the books of account have rejected by the Assessing Officer and confirmed by the CIT(A), then, it was incumbent upon both the lower authorities i.e., AO as well as the CIT(A) to phy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he has very fairly accepted that expenditure incurred in relation to repair & maintenance is a normal business expenditure but since the assessee failed to discharge his onus to prove he genuineness of expenses a lump sum disallowance of Rs. 25 lacs was made out of the said expenses. On the other hand, the appellant has contended that an ad-hoc disallowance made out of said expenses without any basis, calculation, evidences and premises is not sustainable especially when the A.O. did not find any defects in books of accounts. It has been also contended that Ld. A.O. never pointed out any defects in bills and vouchers produced before him during the assessment proceedings alongwith books of accounts and allegation of non production of supporting bills and vouchers is factually incorrect statement. On this issue, arguments and contention of the appellant and comments of Ld. A.O. in remand report remained the same as made with reference to ground #3 pertaining to ad-hoc disallowance of Rs. 1 crore out of freight expense and truck running expenses. I have perused the material placed on record and gone through the remand report submitted by Ld. A.O. and rejoinder filed by the appellant o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 25 Lakhs. Since the Ld. CIT(A) had verified the record and nothing had been pointed by the Ld. DR that the record which was verified was not sufficient to come to the conclusion or the finding recorded by the Ld. CIT(A) in para 11 was incorrect or contrary to the facts. In the light of the above, we do not find any reason to interfere with the findings giving by the Ld. CIT(A). Accordingly, the Ground No. 4 of the Revenue appeal is dismissed. Ground No. 5 7. The Ld. DR had submitted that the Ld. CIT(A) in para 12.2 and 12.3 had dealt with this issue and had brush aside the objections of the AO, while deleting the disallowance of Rs. 1 Crore. 7.1. The Ld. AR, drawn our attention to the order passed by the Ld. CIT(A) and also the remand report given by the AO pursuant to the documents filed by the assessee. 7.2. We have heard the rival contentions and perused the material available on record. The Ld. CIT(A) had passed a detailed order as mentioned in para 12.2 & 12.3 to the following effect: "12.2. During the appellate proceedings, ld. AR of the assessee furnished proof of ownership of assets/vehicles as Annx C-1 to C-60 with regard to 16 trucks (in fact 15 trucks) alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icion. It is evident from "Depreciation Chart" (Annx A) enclosed with Return of Income that during the year, appellant has claimed depreciation @50% on the Trucks worth Rs. 6,30,22,810/- purchased before 30.09.2009 and @15% (for half year) on the Trucks worth Rs. 4,28,87,927/- purchased after 30.09.2009. Ld. AO has though in principle agreed that as per provision inserted by IT (third amendment) Rules 2009 w.e.f. 01.04.2009 assessee is eligible to claim depreciation @50% on new commercial vehicles purchased/acquired between 01.01.2009 to 01.10.2009. Thus, there is no dispute that rate of depreciation claimed @50% was as per the provision of relevant Rules. Although, during assessment proceedings, assessee provided the details of purchase of New Commercial Vehicles (Trucks) with Truck No. Registration No./Chassis No., Date of Registration and amount capitalized. On being asked, the appellant has also supplied the copies of purchase Invoice, Ownership Track Record (showing Chassis No & Registration date etc.) and copy of RC (Certificate of Registration) in respect of trucks purchased during the year in majority of cases. I can understand the predicament of the appellant in collecting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecord. On the other hand, the appellant by furnishing evidence could satisfactorily justify the allowability of entire claim of depreciation. So, in view of factual matrix of the case, I am of considered view that no disallowance is required to be made out of claim of depreciation. Hence, disallowance of Rs. 1 Crore made by Ld. AO is hereby ordered to be deleted". 7.3. In fact in the order passed by the CIT(A), it is categorically mentioned that the case of the assessee was decided on scrutiny u/s. 143(3) of the Act and no doubt by the AO in the A.Y. 2009-10 in respect of claim of depreciation. The record further shows that the assessee has given the details of the trucks along with Chassis number, which were put to use after being registered with MP State Transport Department. This information was also available on the website of the MP State Transport Department. In our view, for the purpose of claiming the depreciation, the assessee was required to prove that the asset was put to use in the year under consideration. For the purposes of claiming the depreciation for the trucks, it would be sufficient if the trucks were registered with the Transport Authorities before the cut-of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
