Income Tax Appellate Tribunal - Rajkot
Agencies & Cargo Care Ltd.,, Gandhidham vs Department Of Income Tax on 14 December, 2012
1
ITA 406-Rjt-11
IN THE INCOME TAX APPELLATE TRIBUNAL
RAJKOT BENCH : RAJKOT.
(BEFORE SHRI T.K. SHARMA, JM AND SHRI B.R. JAIN, AM)
ITA NO. 406/RJT/2011
Asstt. Year : 2006-07.
The ACIT, Circle-1, vs. M/s. Agencies & Cargo Care Ltd.,
Gandhidham-Kutch. Gandhidham.
(Appellant) (Respondent)
Assessee by : Shri Avinash Kumar
Department by : Shri Kalpesh Doshi
Date of hearing : 14.12.2012.
Date of pronouncement :
ORDER
Date of Order :_11/1/2013.
PER B.R. JAIN, A.M.
This appeal by revenue against the order dated 04.08.2011 of ld. CIT (Appeals)- XX, Ahmedabad raises the following grounds :-
(1) The Ld. CIT (A) erred in law and on facts of the case in deleting the excess depreciation claimed of Rs. 11,32,782/-. (2) On the facts and circumstances of the case Ld. CIT (A) ought to have upheld the order of the Assessing Officer.
(3) It is therefore, prayed that the order of the Ld. CIT (A) may be set-aside and that of the Assessing Officer be restored to the above extent.
2. Briefly the facts are that the assessee is owner of a storage tank and derives income by letting out the same to the customers at a fixed rate. This storage tank is being used for storing the liquid cargo. The assessee treated the storage tank as its plant and 2 machinery and claimed depreciation accordingly, but the Assessing Officer restricted assessee's claim by holding such storage tanks as building and allowed depreciation thereon on the rates prescribed for Building under the IT Rules 1962. The excess depreciation of Rs. 11,32,782/- stood disallowed.
3. The Ld. CIT (A) following the orders for earlier years i.e. for assessment years 2004-05 and 05-06 and for subsequent year 2007-08 in assessee's own case deleted the disallowance so made by the Assessing Authority.
4. The Ld. D/R assailing the impugned order contends that the storage tank is merely a structure made for storage of liquid. It thus constitutes a building on which depreciation at the rate prescribed for building has to be allowed. The Ld. CIT (A) has, therefore, erred in treating the same as machinery by allowing assessee's claim of depreciation as plant and machinery thereon.
5. On the other hand assessee's counsel placed reliance on the written submissions placed before the Ld. CIT (A) as well as an order dated 28.4.2008 in the case of M/s. Friends Oil & Chemical Terminal Pvt. Ltd. by the Rajkot Bench of the Tribunal in ITA No. 1691/RJT/2005 and also the order dated 22.8.2007 in its own case for assessment year 2004-05 passed by the Ld. CIT(A)-II, Rajkot in Appeal No. CIT(A)-II/0244/06-07. This decision has been accepted by the Revenue as no second appeal is shown to have been preferred against such order before the Appellate Tribunal or any other forum.
6. We have heard parties with reference to material on record and the precedents brought to our notice. No new storage is shown to have been erected during the year under consideration. The assessee has made a statement that no second appeal has been preferred against the order dated 22.8.2007 for assessment year 2004-05 made by Ld. 3 CIT (A)-II, Rajkot in Appeal No. CIT (A)-II/0244/06-07 in its own case whereby such storage tank erected by the assessee was treated as Plant and Machinery and depreciation was allowed accordingly. There being no change in facts and in law and having regard to the peculiar facts and the statement, we find no reason to interfere with the decision taken by Ld. CIT (A) by following his earlier decision on this issue. Accordingly ground raised in appeal stands rejected.
Order pronounced in the open court on 1/11/2013
Sd sd
( T.K. SHARMA ) ( B.R. JAIN )
JUDICIAL MEMBER ACCOUNTANT MEMBER
Rajkot,
d/-
Copy forwarded to :-
The ACIT, Circle-1, Gandhidham-Kutch.
M/s. Agencies & Cargo Care Ltd., Gandhidham.
The CIT (A)
The CIT
The D/R
Guard file (ITA No. 406 /RJT/2011) By Order,
True copy
AR ITAT Rajkot.