9911796707
TMI Blog2021 (9) TMI 1228X X X X Extracts X X X X X X X X Extracts X X X X ..... - SUPREME COURT] has held that even though principles of res judicata do not apply to income tax proceedings, but where a fundamental aspect permeating through the different Assessment Years has been found as the fact one way or the other and the parties have allowed the position to be sustained by not challenging the order, it would not be at all appropriate to allow the position to be changed in subsequent year. Thus in view of the law laid down by the Supreme Court in RADHASOAMI SATSANG, supra and taking into account that the identical issue has been held in favour of the assessee by the Tribunal vide order dated 07.09.2013 in respect of Assessment Years 1993-94 and 1995-96 and the parties have allowed it to attain finality, it is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... F agent involved in stevedoring, clearing and forwarding agency, custom house agency, steamer agency and is rendering services in New Mangalore Port. The assessee had filed the return of income for the Assessment Year 2005-06 declaring a total income of ₹ 17,60,590/-. The aforesaid income was processed under Section 143(1) of the Act and an order of assessment under Section 143(3) of the Act was passed on 06.11.2008 by the Assessing Officer, by which the total income of the assessee was assessed at ₹ 87,66,590/-. A search under Section 132 of the Act was conducted on the premises of the assessee on 04.08.2011 and in pursuance of the aforesaid search, an order under Section 143(3) read with Section 153A of the Act was passed. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of the vehicle and the assessee is mainly transporting goods imported / exported, inside and outside the New Mangalore Port area either by using its own transport vehicle or by hiring vehicle. Therefore, in respect of such business rate of depreciation would be 15% and not 30%. It is also argued that the earning from vehicle hire is only 4.11% of the gross revenue which cannot be treated as substantial amount of revenue from vehicle hire. It is further submitted that even though the Tribunal has placed reliance in the case of the assessee for earlier Assessment Years, however, there is no res judicata in taxation and claim in each Assessment Year has to be adjudicated independently on the basis of material available on record. It is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... KUR AND BROS.' (2010) 322 ITR 463 (BOM). 5. We have considered the submissions made on both sides and have perused the record. The Supreme Court in 'RADHASOAMI SATSANG Vs. COMMISSIONER OF INCOME-TAX (1992) 60 TAXMAN 248 (SC) has held that even though principles of res judicata do not apply to income tax proceedings, but where a fundamental aspect permeating through the different Assessment Years has been found as the fact one way or the other and the parties have allowed the position to be sustained by not challenging the order, it would not be at all appropriate to allow the position to be changed in subsequent year. In the instant case, the Commissioner of Income Tax (Appeals) has recorded the following findings: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Hon'ble ITAT relying on the decision of Hon'ble Bombay High Court in the case of CIT Vs S.C. Thakur and Brothers reported in 322 ITR 463 held that higher rate of depreciation was admissible when motor lorries were used by the assessee in its own business of transportation of goods on hire. The Hon'ble ITAT also relied upon Circular No.652 issued by CBDT that the motor lorries used by the assessee in the business of transportation of goods on hire would be eligible for higher rate of depreciation. 3.4 I have gone through the assessment order and the submissions made by the AR of the appellant including the decisions of the ITAT in the appellant's own case and the other decision reported in 75 Taxmann.com 67. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... composite billing is the substantial amount of receipt which cannot be for the stray incident of hiring. 3.5 Considering all these facts of the appellant's case and supported by the decisions of the Hon'ble ITAT in the appellant's own case and other similar cases, the appellant is found to be using the vehicles and the machineries in the business of hire and thus, is entitled for higher rate of depreciation. Thus, the disallowance made by the AO towards excess depreciation claimed amounting to ₹ 23,70,574/- is hereby deleted. Ground nos.1 and 2 are allowed. 6. The Tribunal, after having note of the order dated 07.09.2013 passed in the case of the assessee for the Assessment Years 1993-94 to 1995-96 has held as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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