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Dy. Commissioner of Income-tax Central Circle - 39, Room No. 32(1), GroundFloor, Aayakar Bhavan M.K. Road, Mumbai 400 020. Vs. M/s Brinks Arya India Pvt. Ltd., International House, Ist Marine Cross Road, Churchgate, Mumbai - 400020.
February, 16th 2013
                 ""   
IN THE INCOME TAX APPELLATE TRIBUNAL " B " BENCH,                   MUMBAI
                        ,                     
                        ,                             

            BEFORE SHRI DINESH KUMAR AGARWAL, JM AND
                     SHRI SANJAY ARORA, AM
                 ./I.T.A. No. 8455/Mum/2010
              (   / Assessment Year : 2007-08)
     Dy. Commissioner of  /
                               M/s Brink's Arya India
     Income-tax            Vs. Pvt. Ltd.,
     Central Circle - 39,      International House,
     Room No. 32(1),           Ist Marine Cross Road,
     GroundFloor,              Churchgate,
     Aayakar Bhavan            Mumbai - 400020.
     M.K. Road,
     Mumbai ­ 400 020.
                              . / PAN : AAACB3302R
        ( /Appellant)     ..       (  / Respondent)

               / Appellant by :              Shri Mohit Jain
               / Respondent by :             Shri Y.P. Trivedi &
                                             Ms. Usha Dalal

               / Date of Hearing                     : 07-02-2013
               /Date of Pronouncement : 15-02-2013

                               / O R D E R

PER DINESH KUMAR AGARWAL, JM. :

     This appeal preferred by the Revenue is directed against the order dtd.

18-10-2010 passed by the ld. CIT(A)- 41, Mumbai for the assessment year

2007-08.

2.   Briefly stated facts of the case are that the assessee company is engaged

in the business of secured transportation of diamond and jewellery, cash,



                                   2
                                                              ITA No.8455/Mum/2010

precious metals, ATM services and safe deposit vaults etc.      The return was

filed declaring total income of Rs. 14,71,97,951/-.      During the course of

assessment proceeding it was observed by the A.O. that the assessee has

claimed depreciation on motor vehicles @ 30% whereas as per normal

provisions, depreciation @ 15% is allowable to the assessee. On being asked,

it   was   stated     that   the   assessee   has   claimed    depreciation    on

Armoured/Security vans @ 30% amounting to Rs. 67,22,156/- on the plea

that it is engaged in the business of secured transportation of diamond and

jewellery, cash, precious metals, ATM services and safe deposit vaults etc. for

which it uses motor lorries customized as Armoured/Security vans and further

that these Armoured/Security vans are customized motor lorries which are

used in the business of running them on hire for transportation of valuables;

thus depreciation thereon is allowable @ 30% as per item III (2) (ii) of Appendix

1 to the Income Tax Rules, 1962, both on the opening WDV of the block as

well as additions made thereto. The assessee also submitted a detailed reply

vide letter dtd. 14/12/2009 which is on similar lines as was done in the earlier

assessment years. However, the A.O. after relying on certain decisions allowed

the depreciation on security van at 15% as against the claim of the assessee at

30% on the ground that the assessee is not engaged in the business of running

the vehicles on hire and accordingly disallowed the excess claim of

depreciation Rs. 33,61,078/- and added the same to the total income of the

assessee and thereby completed the assessment at an income of Rs.

15,05,59,030/- vide assessment order dtd. 24-12-2009 passed u/s 143(3) of
                                          3
                                                                  ITA No.8455/Mum/2010

the Act. On appeal, the ld. CIT(A) following the Tribunal order in assessee's

own case for the assessment years 2000-01 to 2006-07, however, allowed the

claim of the assessee.


3.    Being aggrieved by the order of the ld. CIT(A) the Revenue is in appeal

before us taking following grounds of appeal:-

      "1.    On the facts and in the circumstances of the case and in law, the ld.
      CIT(A) was not correct in directing the Assessing Officer to allow higher rate of
      depreciation at 30% on security vans.

      2.     The appellant prays that the order of Commissioner of Income-tax
      (Appeal) on the above ground be set aside and that the Assessing Officer be
      restored. The appellant craves leave to amend or alter any grounds or add a
      new ground which may be necessary."

4.    At the time of hearing the learned D.R. supports the order of the A.O.

5.    On the other hand the ld. counsel for the assessee, at the outset,

submits that the issue is covered in favour of the assessee by the decision of

the Tribunal in assessee's own case for the assessment years 2001-02 to 2006-

07. He further submits that the Hon'ble jurisdictional High Court in CIT vs.

M/s Brinks Arya India Pvt. Ltd. vide judgment dtd. 29-3-2011 has upheld the

order of the Tribunal by holding that the decision of the Tribunal is based on

the finding of fact and no substantial question of law arise in these appeals

and, hence, dismissed the Revenue's appeal.          He further submits that the

Hon'ble Supreme Court in CIT vs. M/s Brinks Arya India Pvt. Ltd. vide

judgment dtd. 5-12-2011 has also dismissed the special leave petition filed by

the Revenue. He also placed on record the copy of the said decisions. He,
                                           4
                                                                   ITA No.8455/Mum/2010

therefore, submits that the order passed by the ld. CIT(A) allowing the rate of

depreciation at 30% as against 15% allowed by the A.O. be upheld.


6.    We have carefully considered the submissions of the rival parties and

perused the material available on record. We are of the opinion that the issue

involved in the present case is no more res integra and is covered by the

following decisions:-


7.    In DCIT vs. M/s Brink's Arya India Pvt. Ltd. in ITA No. 5086, 5278 &

7175/Mum/2005 for assessment years 2001-02 to 2003-04 order dtd. 30-3-

2009 it has been held vide para 14 of the order as under:-

      "14. We have carefully considered the submissions of the rival parties and
      perused the material available on record. We find that there is no dispute that
      the main objects of the assessee company are- [page 7 of CIT[A]'s order] :


         1) To establish and carry on business either solely or in partnership
            with other firms, companies or corporations of protecting and
            transporting valuables including jewellery, precious metals and
            stones, negotiable and non-negotiable instruments and securities,
            stocks bonds, valuable documents and objections and other
            commodities for customers by armored car and other vehicles
            and to render related services on all international air courier
            shipments to and India.
         2) To manufacture, repair, buy sell, lease and deal in property and
            equipment concerning the transportation of valuables a detailed
            in the preceding clause including safes, chest and cash
            protectors.
         3) To provide security and handling services including services
            relating to clearing, forwarding, transportation, safe custody,
            travel handling and coin processing.

      We further find that it is also not in dispute that the majority of the assets are
      relating to transport and the main income of the assessee company is from
      freight and related charges. Under item [2][ii] of heading III PLANT AND
      MACHINERY of Appendix I of table of rate of depreciation, the higher rate of
      depreciation is admissible on motor buses, motor lorries and motor taxis used
      in a business of running them on hire. In CIT vs. Gupta Global Exim P. Ltd
      [S.C] [supra], there is a categorical finding of the AO that the assessee was
                                           5
                                                                   ITA No.8455/Mum/2010

      occasionally in the business of transportation and mainly he was in the
      business of importing timber longs and selling them in India. Their Lordships
      while observing that "the user of the same in the business of the assessee of
      transportation is the test." Held that merely because the income from letting of
      the trucks on hire was included in the business income, the higher rate would
      not apply. However, the matter was remanded for fresh decision to the
      Commissioner [Appeals] as to whether the assessee was in the business of
      running the motor buses on hire. However, in the case before us, the assessee
      has proved that it has used the security vans for transportation of cash
      valuables etc. It is not the case of the revenue that the assessee has not used
      the said security vans for its business of transportation of cash, valuables etc.,
      or the same has not been used mainly for business of the assessee of
      transportation of cash, valuables etc. In the aforesaid case in CIT vs. Gupta
      Global Exim P. Ltd., which has also been considered and distinguished in CIT
      vs. M/s Parikh Petrochemicals Agencies Pvt. Ltd. [supra], the assessee's main
      business was importing timber longs and selling them. Whereas in the case
      before us, the assessee has proved that the transportation of cash and
      valuables was its main business. Under the aforesaid facts and circumstances,
      the decision relied on by the Ld.DR in CIT vs. Gupta Global Exim P. Ltd is
      distinguishable and not applicable to the facts of the present case. That being
      so and keeping in view that the revenue has failed to controvert the finding of
      the ld. CIT[A], we are of the view that the assessee is entitled to claim
      depreciation @ 40% and accordingly, we are inclined to uphold the finding of
      the ld. CIT[A] in directing the AO to allow depreciation on security vans @ 40%.
      The ground taken by the revenue is, therefore, rejected."

8.    The above order of the Tribunal has been followed by the Tribunal in

assessee's own case for the assessment years 2004-05 to 2006-07.





9.    In CIT vs. M/s Brinks Arya India Pvt. Ltd. in Income Tax Appeals No.

802 of 2010 and Others vide judgment dtd. 29-03-2011, the Hon'ble

jurisdictional High Court has observed and held as under:-

      "Whether the Tribunal was justified in holding that the assessee is entitled to
      higher depreciation at 40% when the assessee was not engaged in the business
      of giving the vehicles in hire, is the question raised in these appeals. The
      Tribunal has held that the assessee has proved that the security vans have
      been used for transportation of cash, valuables belonging to the third parties
      as that is the business of the assessee. This fact is not disputed. Thus, the
      decision of the Tribunal is based on finding of fact and no substantial question
      of law arise in these appeals. All the appeals are dismissed with no order to
      costs."
                                           6
                                                             ITA No.8455/Mum/2010

10.    In CIT vs. M/s Brinks Arya India Pvt. Ltd., the Hon'bble Supreme Court

vide its judgment dtd. 5-12-2011 has held as under :-

       "Delay condoned.
       The special leave petitions are dismissed."

11.    Respectfully following the above authoritative pronouncements, the

order passed by the ld. CIT(A) accepting the claim of the assessee is upheld.

12.    In the result, Revenue's appeal stands dismissed.
                  

      Order pronounced in the open court on 15-02-2013.                         .
                         15-02-2013    


        Sd/-                                               sd/-
  (SANJAY ARORA)                                 (DINESH KUMAR AGARWAL)
    / ACCOUNTANT MEMBER                              / JUDICIAL MEMBER

 Mumbai;           Dated 15-02-2013.

 . ../ r.k. , Sr. PS
        /    Copy of the Order forwarded to :
1.  / The Appellant
2.       / The Respondent.
3.      () / The CIT(A)- 41, Mumbai
4.                  / CIT -4, Mumbai
5.       ,     ,  /
      DR, ITAT, Mumbai B Bench
6.      / Guard file.


                           //True Copy//
                                                       / BY ORDER,


                                               /
                                               /  (Dy./Asstt. Registrar)
                                           ,  / ITAT, Mumbai
                                           ,
 
 
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