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TMI Blog2021 (11) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... i Rajesh Upadhyay AR For the Revenue : Ms. Anupama Singla Sr-DR ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER: 1. These there appeals by assessee are directed against the separate orders of ld. Commissioner of Income tax (Appeals), Valsad all dated 05.11.2018 for assessment years (AY) 2010-11 to 2012-13. In all appeals, the assessee has raised certain common grounds of appeal; facts in all appeals are similar except variation in figure of addition on account of disallowance of depreciation. With the consent of parties, all appeals are clubbed, heard and decided by a consolidated order. For appreciation of facts, the facts in appeal for AY 2010-11 in ITA No.34/SRT/2019 is treated as lead case. The assessee has raised the following grounds of appeal:- 1. Lr. CIT(A), Valsad has erred in law and on facts to upheld Assessing Officer's action of reopening of assessment u/s 147 and issue of notice u/s 148. 2. Lr. CIT(A), Valsad had erred in law and on facts to upheld Assessing Officer's addition of ₹ 1,19,481/- being excess claim of depreciation of JCB. 2. On perusal of records, we find that all the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. Brief facts of the case are that assessee is a proprietor of Nilkanth Quarry Works, engaged in business of stone quarry. The assessee filed his return of income for assessment year (AY) 2010-11 declaring income of ₹ 23,12,341/-. Subsequently, the case was selected for scrutiny. The assessment was completed under section 143(3) on 22.05.2013 assessing total income of ₹ 42,41,263/-. Thereafter; the case was reopened under section 147. Notice under section 148 dated 29.03.2017 was issued to the assessee. The Assessing Officer recorded no reply in response to notice under section 148, was received from the assessee. The Assessing Officer issued reminder notice letter dated 04.08.2017, in response thereto, the assessee filed application dated 16.08.2017 for seeking sixty days time to submit its response and return of income. The Assessing Officer recorded that at the time of issuing notice under section 148, thirty days time was allowed. The AO again asked the assessee to file return of income before seeking reasons of reopening. The AO recorded that the assessee ultimately, vide its letter dated 26.09.2017 stated that original return filed on 07.10.2010 be treated as r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of income. The JCB machine is a motor vehicle and the assessee was of the bona fide belief and opinion that since it is eligible for @ 40% depreciation. The assessee also relied on the decision of Hon'ble Supreme Court in Bose Abraham Vs State of Kerala (2001) 9 KTR 366 (SC) and jurisdictional High Court in Gujco Carriages Vs CIT 122 Taxmann.com 206 (Guj). On the basis of above factual and legal submission, the assessee claimed that his claim of @ 40% depreciation is legal and correct. The reply of assessee was not accepted by Assessing Officer. The Assessing Officer held that JCB Machine falls under the category of heavy goods vehicle is eligible deprecation @ 40% if engaged for hiring purposes. The assessee has not let out those vehicles on hire, thereby violated the condition for claiming higher depreciation. The Assessing Officer thereby disallowed the higher depreciation claim @ 40% and allowed only @ 15% thereby disallowed depreciation of ₹ 1,19,481/- (191170 71689). 9. On appeal before Ld. CIT(A), the assessee challenged the validity of re-opening as well as disallowance of depreciation made by AO. The assessee filed required details before ld CIT(A). The Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat all the details were available during the original assessment and the AO applied his mind if the facts are on record and the reopening is change of opinion as per the decision of Hon ble Supreme Court in CIT Vs Kelvinator of India Limited (2010) 320 ITR 561-SC. The ld AR for the assessee further submits that Hon ble Rajasthan High Court in CIT Vs Hindustan Zinc Limited (2017) 393 ITR 264 (Raj) also held that in absence of new information and when the additional claim of depreciation was allowed in original assessment after conscious consideration material on record, it was a case of change of opinion. 11. On ground No.2, which relates to merit of the case that is disallowance of depreciation @ 40% on JCB Machine. The ld. AR for the assessee submits that the assessee is eligible depreciation @40% on JCB Machine, which has been allowed to the assessee. To support his submission relied on the decision of Jaipur Tribunal in Radha Krishan Beniwal Vs ACIT (ITA No. 469/JP/2016), wherein 50% depreciation was allowed on similar JCB Excavator. 12. On the other hand, Ld. Sr. DR for the Revenue supported the order of the lower authority. The ld. Sr DR for the revenue submits that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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