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Sh. Raj Kumar Yadav [Propietor: M/s Paras Travel & Raj Filling Station] Station H No. 810, Sector- 4 Gurgaon vs. DCIT Circle- 1(1) Gurgaon
April, 11th 2019


                         ITA No.: 2740/Del/2016
                        Assessment Year: 2011-12

 Sh. Raj Kumar Yadav                     Vs    DCIT
 [Propietor: M/s Paras Travel &                Circle- 1(1)
 Raj Filling Station]                          Gurgaon
 Station H No. 810, Sector- 4
 (APPELLANT)                                   (RESPONDENT)

 Assessee by                                Mrs. Kavita Gupta, C.A.
 Department by                              P.V. Gupta, Sr. DR

 Date of hearing:                           09.04.2019
 Date of Pronouncement:                     11.04.2019



                               GROUNDS OF APPEAL

         1.      That the Commissioner of Income-tax (Appeals) erred on
         facts and in law in upholding the disallowance of depreciation to
         the tune of Rs. 2,82,426 on vehicles (i.e., bus/tempo traveller), on
         the ground that such vehicles were not used for commercial
         1.1.    That the Commissioner of Income-tax (Appeals) erred on
         facts and in law in not appreciating that the vehicles were used by
         the appellant purely for commercial purposes and thereby,
         depreciation @ 50% was rightly claimed.
         1.2.    That the Commissioner of Income-tax (Appeals) erred on

            facts and in law in not appreciating that the business of the
            assessee is of transport (carrying the staff for different companies)
            and therefore the disputed vehicles i.e. Bus and Tempo Traveller
            are Commercial Vehicles.
            1.3.    That the Commissioner of Income-tax (Appeals) erred on
            facts and in law in holding the view taken by A.O. that commercial
            vehicles cannot be hiring vehicles.
            1.4.    That the Commissioner of Income-tax (Appeals) erred on
            fact and in law in holding that the appellant failed to substantiate
            that the aforesaid vehicles were used for commercial purposes.
            1.5.    That the commissioner of Income Tax (Appeals) has
            wrongly mentioned that no evidence has been filed to show the
            vehicles are commercial in nature is totally wrong as copy of
            receipt of passenger tax /road permit mentioning the vehicles as
            Commercial were produced and were put on record.

1.    The moot issue to be adjudicated in this case is that whether the
depreciation claimed by the assessee at the rate of 50% as pleaded before us
is allowable as per the provisions of the Income Tax Act or not.

2.    The Ld. CIT(A) confirmed the additions made by the AO on the
grounds that the depreciation on
(a) Bus- 1986
(b) Tempo Traveller- 7344
was to be allowed only at the rate of 30%. The Ld. CIT(A) held while
confirming the addition (or) restricting the depreciation that no documentary
evidence was produced by the assessee at the assessment stage to show that
the vehicles were "commercial" as per the definition and no such claim was
made before the AO.

3.    On perusal of the documents filed before us in the paper book namely
the Registration certificate and the insurance policy and by the very nature
of the vehicle i.e. bus and tempo traveller, we find that they straightly fall
under the definition of commercial vehicles and eligible for 50% depreciation
as per part B of the depreciation table wherein it has been clearly mentioned
that new commercial vehicles which are acquired on or after first day of

January, 2009 but before the first day of April, 2009 and is put to use before
the first day of April, 2009 for the purpose of business or profession are
eligible for depreciation at the rate of 50%. (Vide notification no. 10/2009
dated 19.01.2009 w.e.f. 01.09.2009). Commercial vehicle is defined in the
notes to the Depreciation table as under:
"3A. Commercial vehicle means heavy goods vehicle, heavy passenger motor
vehicle, light motor vehicle, medium goods vehicle and medium passenger
motor vehicle but does not include maxi-cab, motor-cab, tractor and road-
roller. The expressions heavy goods vehicle, heavy passenger motor vehicle,
light motor vehicle, medium goods vehicle, medium passenger motor vehicle,
maxi-cab, motor-cab, tractor and road-roller shall have the meanings
respectively as assigned to them in section 2 of the Motor Vehicles Act, 1988
(59 of 1988)."

4.    Hence, keeping in view the provisions of the Act, depreciation is
hereby allowed at the rate of 50% on the two vehicles.

5.    As a result, the appeal of the assessee is allowed.

      Order pronounced in the open Court on 11.04.2019.

     Sd/-                                                    Sd/-
 (LALIET KUMAR)                                     (B. R. R KUMAR)
JUDICIAL MEMBER                                  ACCOUNTANT MEMBER


Copy of order to: -
1)     The   Appellant
2)     The   Respondent
3)     The   CIT
4)     The   CIT(A)
5)     The   DR, I.T.A.T., New Delhi
                                                   By Order

                                              Assistant Registrar
                                               ITAT, New Delhi

          Date of dictation                             10.04.2019
          Date on which the typed draft is placed
          before the dictating Member
          Date on which the approved draft comes to
          the Sr.PS/PS
          Date on which the fair order is placed before
          the Dictating Member for Pronouncement
          Date on which the fair order comes back to
          the Sr. PS/ PS
          Date on which the final order is uploaded
          on the website of ITAT
          Date on which the file goes to the Bench
          Date on which file goes to the Head Clerk.
          The date on which file goes to the Assistant
          Registrar for signature on the order
          Date of dispatch of the Order
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