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TMI Blog2023 (1) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... ief story. Therefore, in our opinion, the finding of the Ld. 1st Appellate Authority is not sustainable on this issue. We allow this ground of appeal and restore the finding of the Ld. Assessing Officer on this issue. The addition as unexplained cash credit is confirmed. Depreciation on the Cranes given on lease to Oil India Limited @ 30% disallowed - according to the Revenue, such assets were not used for hire and, therefore, are not entitled to claim higher rate of depreciation - HELD THAT:- AO was expecting from the assessee to demonstrate that these Cranes were used by M/s. Oil India for hire basis. He failed to appreciate that transaction is to be viewed in the hands of assessee. The moment assessee has let out for the user of a third party, which means those equipments were used for commercial purposes in the business of the assessee whether the third party is using them at their own or giving on further let out, it is not the criteria to determine the nature of income in the hands of the assessee. The moment assessee has let out the Cranes, then it is to be construed that these assets were being used in the hiring business of the assessee. Therefore, the Ld. 1st Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application was filed by Shri Mayur Agarwal, FCA. We did not oblige the assessee because it is a 2013 appeal involving assessment year 2010-11. Therefore, we heard the appeal ex-parte and proceed to decide it on merit. 3. In the first ground of appeal, Revenue has pleaded that Ld. CIT(Appeals) has erred in taking into account additional evidence in violation of sub-Rule (3) of Rule 46A of Income Tax Rules, 1962. Though this ground has been raised by the Revenue but neither any paper book has been filed nor any material has been submitted specifying which item has been entertained by the Ld. CIT(Appeals) afresh without providing an opportunity of hearing to the Ld. Assessing Officer. Therefore, we do not find any merit in this ground of appeal. It is rejected. 4. In Ground No. 2, the grievance of the Revenue is that Ld. CIT(Appeals) has erred in deleting the addition of Rs. 42,00,000/-, which was added by the Ld. Assessing Officer under section 68 of the Income Tax Act on account of unexplained unsecured loan. 5. Brief facts of the case are that the assessee has filed his return of income on 05.12.2011 declaring total income of Rs. 57,31,744/-. The case of the assessee was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... layers. Therefore, Ld. Assessing Officer was very much right in investigating the root source of such funds. It is not a genuine transaction but it is a staged transaction. Therefore, Ld. CIT(Appeals) has erred in placing reliance upon the decision of Hon'ble Guwahati High Court in the case of Nemi Chand Kothari [264 ITR page 254]. The assessee might have been proved the identity but failed to prove the creditworthiness and genuineness of the transaction. He just routed the transaction in such a manner that adjudicating authority ought to be persuaded to believe in his made belief story. Therefore, in our opinion, the finding of the Ld. 1st Appellate Authority is not sustainable on this issue. We allow this ground of appeal and restore the finding of the Ld. Assessing Officer on this issue. The addition of Rs. 42,00,000/- as unexplained cash credit is confirmed. 8. Grounds No. 3 to 5 are inter-connected with each other. In these grounds of appeal, grievance of the Revenue is that depreciation on the Cranes given on lease by the assessee to Oil India Limited cannot be allowed @ 30%. In other words, according to the Revenue, such assets were not used for hire and, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne Running Expenses'. Moreover, the said 'Crane Running Expenses' was accepted as business expenditure of the assessee in the impugned order of assessment. After accepting the expenditure incurred for running and maintaining Cranes as business expenses, in my considered view, it was not open to the AO to not to accept the corresponding receipt of Crane Hire charges as business receipt of the assessee. I find that the AO has held that the rental income derived from hiring of Cranes cannot be treated as business income on the ground that Cranes were acquired for the sole purpose of letting out to others and were not used in the own business of the assessee of dealing in commercial vehicles or execution of civil contracts. I find that the AO has not considered the fact that the letting out of Cranes to others for hire was done by the assessee continuously for last more than 4 years in an organized and systemic manner and therefore, the AO has not considered as to why the these activities of hiring cranes in itself cannot be considered as 'business' of the assessee. In my considered view the word 'business' is a word of large and indefinite import. It is som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra) where in it was held, at para 15, to quote; In the present case before us, the assessee is a leasing company which leases out trucks that it purchases. Therefore, on a combined reading of Section 2(13) and Section 2(24) of the Act, the income derived from leasing of the trucks would be business income, or income derived in the course of business, and has been so assessed. Further, at para No. 30 of the said order, the Hon'ble Apex Court held, With regard to the claim of the assessee for a higher rate of depreciation, the import of the same term purposes of business , used in the second proviso to Section 32 of the Act gains significance. We are of the view that the interpretation of these words would not be any different from that which was ascribed to them earlier, under Section 32(1) of the Act. Therefore, the assessee fulfills even the requirements for a claim of a higher rate of depreciation, and hence is entitled to the same. Therefore, in view of the facts of the instant case and in view of the above decision of the Hon'ble Supreme Court, I direct the AO to treat income derived by the assessee from hiring of Cranes as 'Business Income and further, dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. On appeal, the Ld. CIT(Appeals) has partly allowed the claim of assessee by observing as under:- 7.4. I have carefully considered the various submissions of the Ld. A/I of the assessee and perused the materials available on record. I find that it is not in dispute that building materials of Rs. 14,53,458/- was purchased by the assessee in the previous year relevant to the assessment year 2008-09 and debited under the head Land Babotia Jorhat. Further, it is also not in dispute that for Rs. 20,32,000/- only vacant land at Babotia, Jorhat was sold by the assessee on 22.03.2010. In the above facts, the claim of the assessee that the building materials such as sand, brick, stone chips etc purchased in F.Y. 2007-08 were sold in cash before 22.03.2010 cannot be ruled out However, in absence of proper evidence in support of the claim that Rs. 15,00,000/- was received on sale of those building materials also cannot be fully accepted and inflation therein cannot be ruled out. Considering the entire facts and circumstances, in my considered opinion, it shall meet the interest of the justice the sale proceeds of old building materials which was purchased in F.Y. 2007-08 Rs. 14,53 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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