Income Tax Appellate Tribunal - Ahmedabad
Endeavour Instruments Pvt.Ltd.,, ... vs Assessee on 10 June, 2016
आयकर अपील
य अ धकरण, अहमदाबाद यायपीठ 'ए', अहमदाबाद ।
IN THE INCOME TAX APPELLATE TRIBUNAL
" A " BENCH, AHMEDABAD
सव ी आर.पी.तोलानी, या यक सद य एवं अ नल चतव
ु द , लेखा सद य के सम!।
BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER
And SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER
आयकर अपील सं./I.T.A. No.1067/Ahd/2013
( नधा रण वष / Assessment Year : 2008-09)
Endeavour Instruments बनाम/ The ITO
P.Ltd. Vs. Ward-4(1)
401, Mohini-II Ahmedabad
Opp. Gandhigram Rly.Station
Nr. Sakar-1, Ellisbridge
Ahmedabad - 380 006
थायी ले खा सं . /जीआइआर सं . / PAN/GIR No. : AAACE 4190 N
(अपीलाथ' /Appellant) .. (()यथ' / Respondent)
अपीलाथ' ओर से /Appellant by : Shri Tushar P. Hemani, AR
()यथ' क+ ओर से/Respondent by : Shri K. Madhusudan, Sr.DR
ु वाई क+ तार ख /
सन Date of Hearing 07/06/2016
घोषणा क+ तार ख /Date of Pronounce ment 10/06/2016
आदे श / O R D E R
PER SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER :
This appeal by the Assessee is directed against the order of the Commissioner of Income Tax(Appeals)-VIII, Ahmedabad dated 18/02/2013 for the assessment year 2008-09.
ITA No.1067/Ahd/2013Endeavour Instruments P.Ltd. vs. ITO Asst.Year - 2008-09 -2-
2. The relevant facts as culled out from the materials on record are as under:-
2.1. Assessee is a company stated to be engaged in the business of manufacturing and trading of electronic weighing scales and its parts.
Assessee electronically filed its return of income for AY 2008-09 on 29/09/2008 declaring total income of Rs.76,53,620/-. The case was selected for scrutiny and thereafter assessment was framed u/s.143(3) of the Income Tax Act, 1961 (hereinafter referred to as "the Act") vide order dated 14/12/2010 and the total income was determined 82,66,440/-. Aggrieved by the order of Assessing Officer (AO), assessee carried the matter before the ld.CIT(A), who vide order dated 18/02/2013 (in Appeal No.CIT(A)-VIII/ITO/Wd.4(1)/507/10-11) granted partial relief to the assessee. Aggrieved by the order of the ld.CIT(A), assessee is now in appeal before us and has raised following grounds:-
1. The learned CIT(A) has erred both in law and on the facts of the case in confirming the disallowance of Rs.2,72,972/- made in respect of depreciation on cars purchased during the year under consideration.
2. Both the lower authorities have passed the orders without properly appreciating the fact and that they further erred in grossly ignoring various submissions, explanations and information submitted by the appellant from time to time which ought to have been considered before passing the impugned order. This action of the lower authorities is in clear breach of law and Principles of Natural Justice and therefore deserves to be quashed.ITA No.1067/Ahd/2013
Endeavour Instruments P.Ltd. vs. ITO Asst.Year - 2008-09 -3-
3. The learned CIT(A) has erred in law and on facts of the case in confirming action of the ld.AO in levying interest u/s.234A/B/C/D of the Act.
4. The learned CIT(A) has erred in law and on facts of the case in confirming action of the ld.AO in initiating penalty u/s.271(1)(c) of the Act.
2.2. Before us, ld.AR submitted that though various grounds have been raised, but the solitary issue which is to be decided is with reference to depreciation on motor car.
During the course of assessment proceedings, AO on perusing the depreciation statement, noticed that a Honda Civic Car was purchased in the name of Directors, namely, S/Shri Paragbhai Rameshbhai Shah and Kamleshbhai M.Upadhyaya, but the depreciation was claimed by the assessee. The assessee was therefore show-caused as to why the depreciation on car purchased in the names of Directors be not disallowed to which assessee inter alia submitted that though the car was purchased in the names of the Directors but the payment for purchase of car was made from the funds of the assessee-company and was reflected as asset of the assessee. The submission of the assessee was not acceptable to the AO. He after placing reliance on the decision of Hon'ble Delhi High Court in the case of M.M.Fisheries (P) Ltd. vs. CIT reported at 277 ITR 204 (Del) concluded that since assessee has failed to furnish any proof to demonstrate that the vehicle was used for the purpose of business of the company, disallowed the claim of depreciation ITA No.1067/Ahd/2013 Endeavour Instruments P.Ltd. vs. ITO Asst.Year - 2008-09 -4- amounting to Rs.2,72,972/-. Aggrieved by the order of AO, assessee carried the matter before the ld.CIT(A), who upheld the order of AO by holding as under:-
"3.3. I have considered the facts of the case; assessment order and appellant's written submission. Appellant claimed depreciation on motor car purchased in the name of director. Assessing officer disallowed the same on the ground that appellant is not the owner of the car and the same was not used for the purpose of appellant's business in assessment year 2008-09. The basic fact is that director of the company purchased motor car in his name and the bill for the said purchase is also in the name of director. Therefore, appellant company is not the legal owner of the motor car. For claim of depreciation, the two conditions are to be fulfilled namely-appellant must be owner of the asset and it must be used for the purpose of appellant's business. In this case appellant is not the owner since the ownership vests with the director who is separate entity than the appellant company. As regards use of these cars for the purpose of business, the same were not furnished. Therefore; use of car for the purpose of company's business is not established by the appellant Although .the onus to prove the user of asset was on the appellant, the same was not discharged either before the assessing officer or before the undersigned. Claim of an expense in the company accounts is not an evidence to prove that asset was used for the business of the company. In the absence of any tangible evidence to prove the business use of the motor car purchased in the name of director, it is held that the motor car was not used for the purpose of appellant's business.
Coming to the appellant's argument of beneficial ownership, appellant submitted that payment for the car was made by the company and hence the appellant is the beneficial owner. Payment will not determine the ownership since payment can be made by way of loan also. In fact major payment is made by finance company but it is not the beneficial owner. Since both appellant and its director are separate entities and directors are not permanent, it cannot be said that ITA No.1067/Ahd/2013 Endeavour Instruments P.Ltd. vs. ITO Asst.Year - 2008-09 -5- appellant company has got complete dominion over the motor car. Since motor car is in possession and control of the directors in whose name the same stand, there is no dominion or control of the appellant company on the said motor tars. Though purchased from the funds provided by it, appellant cannot be said' to be beneficial owner for the purpose of claiming depreciation. Appellant relied upon the decisions of ITAT Ahmedabad and also certain High Courts including Supreme Court decision in the case of Mysore minerals Ltd.
It would be very relevant to refer three-member decision of honorable Supreme Court in the case of Tamil Nadu civil supplies Corporation Ltd versus CIT reported in 249 ITR 214. In this larger bench decision of apex court, earlier decision of- Mysore minerals Ltd was also considered. The said decision was distinguished on facts and it was held that since assessee has not acquired Dominion over asset in question, claim of depreciation is. not allowed. In another decision of Delhi High Court in the case of MM fisheries private Ltd versus CIT, 277 ITR 204, on the identical issue of claim of depreciation on vehicles registered in the name of directors, the same was decided against the assessee. In the light of these two landmark decisions, the issue is not held to be covered by the decision of jurisdictional I TAT since these decisions were not considered therein. Onus is on the appellant to prove the dominion over the asset as well as use for the purpose of business. If appellant is not able to prove either in the light of larger bench decision of Supreme Court, claim of depreciation on assets standing in others name cannot be allowed.
The decisions of other high Courts have been considered. In all those decisions the user of asset namely transport buses etc were by the companies and the companies were disclosing the income from hiring those vehicles. The user of asset for the purpose of business was proved in all these cases beyond doubt. With the user of asset, dominion and control is also proved. Therefore claim of depreciation in these cases were allowed by various high Courts. However in the appellant's case, use for the purpose of business is not at all proved and the dominion and control also remained unproved therefore these decisions do not help the appellant. Considering the larger bench decision of apex court ITA No.1067/Ahd/2013 Endeavour Instruments P.Ltd. vs. ITO Asst.Year - 2008-09 -6- and the Delhi High Court decision in the case of MM fisheries private Ltd, the decision of jurisdictional ITAT is not followed which has not considered these decisions. It is therefore held that the depreciation claimed by the appellant is correctly disallowed by the assessing officer. The ground of the appellant is dismissed."
3. Aggrieved by the order of the ld.CIT(A), assessee is now in appeal before us.
3.1. Before us, ld.AR reiterated the submissions made before the AO and ld.CIT(A) and further submitted that on identical issue, the Coordinate Bench of Tribunal (ITAT "D" Bench Ahmedabad) in the case of Aflon Alplast Pvt. Vs. ITO in ITA No.186/Ahd/2012 for AY 2008-09, order dated 30/01/2015 has decided the issue in favour of assessee. He also placed on record the copy of aforesaid decision. He therefore submitted that following the decision of the Coordinate Bench in the case of Aflon Alplast (supra), the assessee's claim of depreciation be allowed. The ld.Sr.DR, on the other hand, supported the orders of the authorities below.
4. We have heard the rival submissions, perused the material available on record and gone through the orders of the authorities below as well as the decision relied upon by the ld.AR. The issue in the present case is with respect to depreciation on the car which has been purchased in the names of the Directors of the assessee-company. It is an undisputed fact that though the car has been purchased in the name of the two Directors of the Company, but it is reflected in the balance-sheet of ITA No.1067/Ahd/2013 Endeavour Instruments P.Ltd. vs. ITO Asst.Year - 2008-09 -7- the assessee. We find that on identical facts, on similar issue the Coordinate Bench in the case of Afflon Alpast(supra) has decided in favour of assessee, wherein the Coordinate Bench has held as under:-
"7. We have heard the rival submissions and perused the material on record. We find that A.O has disallowed the claim of depreciation on motor cars mainly for the reason that the motor car was in the name of the Director and not in the name of the Assessee. He has further disallowed the claim of the Assessee for expenses for the reason that Assessee could not prove that the expenses have been incurred wholly and exclusively for the purpose of business and were not in personal in nature. On perusing the Balance sheet placed by the Assessee in the paper book, it is seen that the motor car is reflected in the schedule of fixed assets. Before us, Revenue has not brought any material on record to controvert the submissions of Assessee that the funds of Assessee has been used for the purchase of motor car. We further find that on identical facts, in the case of Swati Autolink Pvt. Ltd. vs. ITO (supra), the issue was decided in favour of the Assessee by the Co-ordinate Bench by holding as under:-
14. We have heard the rival submissions and perused the material available on record. It is undisputed fact that the vehicle is standing in the name of the director of the company but the same is considered as part of fixed asset of the assessee. The submission of the assessee that for the purchase of vehicle, the funds of the assessee has been used could not be controverted by the Revenue by bringing any material on record. We find that the Co-ordinate Bench in the case of Studio-3 Architect Pvt Ltd (supra) held as under:-
"5. We have heard both the parties and gone through the facts of the case. The relevant provisions of section 32 of the Act stipulate depreciation in respect of building, machinery, plant or furniture "owned by the assessee"
and "used" for the purposes of the business or profession. Indisputably, the innova car was purchased with the funds of the company and used by the assessee for the purposes of its business. The controversy is in regard to ownership of the car. The contention of the assessee is that car being not registered under the Motor Vehicles Act in the name of the company, by itself is not sufficient to hold the contrary. The factual position as stated by the assessee is not disputed by the Revenue. The contention of the Revenue is that unless the car is registered in the name of the assessee under the Motor Vehicles Act, the assessee would not be entitled to deduction of depreciation allowance in respect thereof. We are of the opinion that the assesses, who had purchased the car for valuable consideration and used the same for its business, cannot be denied the benefit of depreciation on the ground that the transfer was not recorded under the Motor Vehicles Act ITA No.1067/Ahd/2013 Endeavour Instruments P.Ltd. vs. ITO Asst.Year - 2008-09 -8- or that the vehicle stood in the name of a director of the assessee company in the records of the authorities under the Motor Vehicles Act.
5.1 The aforesaid view is supported by the decision in the case of CIT Vs. Navdurga Transport Co., 235ITR 150 (All), wherein the issue was as to whether firm was entitled to depreciation on cars, brought in to the firm for use of business of the firm, even through cars continued to be registered in the name partners. Hon 'ble Allahabad High Court held that the Tribunal rightly reached the conclusion that the assessee owned and used the three vehicles within the meaning of s. 32 of the Act. Similar view was taken in the case of CIT Vs, Mohd. Bus Shokat Ali (No.2), 256 ITR 357 (Raj), CIT Vs Fazilka Dabwali TPT Co. Ltd (2004) 270 ITR398 (P & H), CIT v. Salkia Transport Associates [1983] 143 ITR 39/13 Taxman 191 (Cal), CIT v. Nidish Transport Corpn. [1910] 185 ITR 669/[1989] 44 Taxman 351(Ker.), CITv. Dilip Singh Bagga [1993] 201 ITR 995/11994] 77 Taxaman 66 (Bom), CIT v Navdurga Transport Co. [1999] 235 ITR 158 (All.) and CIT v Basti Sugar Mills Co. Ltd. [2002] 257 ITR 88/123 Taxman 693 (Delhi) as also by the ITAT in their decision in the case of the Curious House (P) Ltd.
v ITO (1980) 9 TTJ 348 (Indore) and ITO Vs. Modi Agency, ITA No. 198/Gau/l977-78 (Gauhati).
5.2. In the light of the view taken in the aforesaid decisions, mere non- registration of a vehicle in the name of the company under the Motor Vehicles Act, cannot disentitle it in regard to its claim of depreciation, when the facts on record are undisputed that the asses see company has, in fact, made the investment in pur chase of the vehicle and such vehicle is being used for its business. The requirement of section 32 is that the vehicle must be owned by the assessee and not that the assessee must be a 'registered owner' of the same under the Motor Vehicles Act. Therefore, we have no hesitation in upholding the findings of the Id. CIT(A). Consequently ground no. 1 relating to disallowance of depreciation on motor car is dismissed.
8. Before us, Revenue has not been brought any contrary binding decision in its support nor could point any distinguishable feature of the present case to that of Swati Autolink (supra). We therefore, respectfully following the decision of the Co-ordinate Bench in the case of Swati Autolink Pvt. Ltd. (supra) hold that the claim of depreciation and expenditure could not have been disallowed in the present case. Thus this ground of Assessee is allowed."
4.1. Before us, Revenue has not brought any contrary binding decision in its support. We further find that in the present case, AO has ITA No.1067/Ahd/2013 Endeavour Instruments P.Ltd. vs. ITO Asst.Year - 2008-09 -9- disallowed only the depreciation and has not disallowed any expenses of the Car, meaning thereby that the expenses incurred by the assessee on the running of the car for the purpose of business has not been doubted and has been accepted by the Revenue. In view of the aforesaid facts and relying on the aforesaid decision cited hereinabove, we are of the view that, in the present case, the claim of depreciation could not be disallowed by the AO merely because the motor car was in the name of Directors. We therefore allow the ground of assessee.
5. In the result, the appeal of the assessee is allowed.
This Order pronounced in Open Court on 10 /06/2016
Sd/- Sd/-
आर.पी.तोलानी अ नल चतव
ु द
( या यक सद य) (लेखा सद य)
( R.P. TOLANI) ( ANIL CHATURVEDI )
JUDICIAL MEMBER ACCOUNTANT MEMBER
Ahmedabad; Dated 10 / 06 /2016
ट .सी.नायर, व. न.स./T.C. NAIR, Sr. PS
आदे श क ! त#ल$प अ%े$षत/Copy of the Order forwarded to :
1. अपीलाथ' / The Appellant
2. ()यथ' / The Respondent.
3. संब5ं धत आयकर आय7 ु त / Concerned CIT
4. आयकर आय7 ु त(अपील) / The CIT(A)-VIII, Ahmnedabad
5. 8वभागीय ( त न5ध, आयकर अपील य अ5धकरण, अहमदाबाद / DR, ITAT, Ahmedabad
6. गाड फाईल / Guard file.
आदे शानुसार/ BY ORDER, स)या8पत ( त //True Copy// उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील य अ धकरण, अहमदाबाद / ITAT, Ahmedabad