IN INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER ITA No. 688/JP/2016 Assessment Year : 2009-10 ITO cuke Shri Vrindawan Lal Gupta Ward- 6 (2) Vs. 760, Barkat Nagar, Pushpanjali Marg Jaipur Tonk Phatak, Jaipur PAN/GIR No.: AFCPG 5046 F Appellant Respondent Revenue by:Shri R.A. Verma, Addl. CIT - DR Assessee by: Shri S.L. Poddar, Advocate Date of Hearing : 14/10/2016 kks"k.kk dh Date of Pronouncement : 19 /10/2016 ORDER PER BHAGCHAND, AM Revenue has filed appeal against order of ld. CIT(A)-2, Jaipur dated 25-04-2016 for assessment year 2009-10 raising therein following ground of appeal. Whether on facts and in circumstances of case and in law, ld. CIT(A) has erred in deleting addition of Rs. 1,52,257/- made by AO by allowing depreciation @ 15% instead of 30% on trucks as claimed by assessee as same was utilized for business purposes and not for hiring. 2 ITA No. 688/JP/2016 ITO, Ward- 6(2), Jaipur vs. Shri Vrindawan Lal Gupta . 2.1 I have heard rival contentions and perused materials available on record. It is observed that demand/ tax effect in Revenue s appeal in question is below Rs. 10.00 lacs . Under powers vested by sec. 268A(1) of I T Act, CBDT has recently issued CircularNo.21 of 2015 dated 10.12.2015(F No. 279/Misc. 142/2007-ITJ(Pt) instructing authorities below departmental appeal should not be filed before ITAT where demand/tax effect does not exceed Rs.10 lacs. circular is specifically mentioned to be applicable for all pending appeals. 2.2 Subject to some exceptions, it is further directed by CBDT that all departmental appeals pending before ITAT where demand/tax effect is less than 10 lacs should be either withdrawn or not pressed by departmental representatives. 2.3 present appeal is not covered by any exceptions mentioned in said CBDT circular. Since tax demand in dispute in this departmental appeal is below limit set out by CBDT for appeal same is not maintainable in view of fore goings. Accordingly appeal of Department is dismissed as not pressed/withdrawn. 3.1 appeal of Revenue has also been taken into consideration on merit also by Bench. It is noted from order of ld. CIT(A) 3 ITA No. 688/JP/2016 ITO, Ward- 6(2), Jaipur vs. Shri Vrindawan Lal Gupta . that she had allowed depreciation claimed by assessee at 30% by observing as under:- 2.3 I have perused facts of case, assessment order and submissions of appellant. only issue relates to depreciation claimed on trucks, utiliszed by assessee , at 30% as against 15% allowed by Assessing Officer. assessee is in business of transportation of supply of milk of Jaipur dairy. As per contract, assessee supplies milk, to various booths in particular area and contract in this respect as well as rate chart is based on rate of diesel prevailing at that time. Assessing Officer held that since trucks are being utilized in assessees business and not for hiring, depreciation is allowable only at 15%. In proceedings before me, assessee submitted that even though agreement with dairy was for transportation of milk, however, it functioned as hire of trucks as even payments were made keeping in mind rate of diesel and whenever these increased, rate in contract, were also revised. agreement with Jaipur dairy and various office orders were filed during proceedings agreement specifies that distributor will ensure that vehicle used for delivery of milk shall have properly insultated loading space so as to ensure safe delivery of milk to all outlets. assessee has pointed to different paragraphs in agreement i.e. 25,30,32,33,42 & 50, which show that vehicles have to be used for transportation and same was main activity, as per contract. Two such paragraphs are reproduced as follows:- Point No. 25 distributor will start paying vehicle immediately but not later tan 20 days from date of release of work order. vehicle should be covered and insulated to protect product from raise in temperature & weather surrounding. insulation should be at least at top and bottom & 2 at 4 ITA No. 688/JP/2016 ITO, Ward- 6(2), Jaipur vs. Shri Vrindawan Lal Gupta . four sides. Condition of floor should have good finish to damage of crates. Point No 32 This agreement can be repudiated at any if vehicle are not found confirming to specifications prescribed or are not in fit condition. decision of Managing Director shall be final in this respect. distributor shall have no claim for damages whatsoever on this ground. Further, reliance has been placed on Kerala High Court in case of CIT vs. Dr. K.R. Jaichandran 212 ITR 637 (Kerala). It has also been submitted that for assessment year 2012- 13 where assessment is completed u/s 143(3), business remaining same, depreciation claim of 30% has been allowed. Further, in assessment years 2010-11 & 2011-12 also depreciation at 30% has been allowed in cases processed under section 143(1). In view of decision as above and past history of case, depreciation claimed by assessee, is allowable at 30%. ground of appeal is allowed. 3.2 During course of hearing, ld. DR was not able to controvert findings recorded by ld. CIT(A). However, ld. AR of assessee relied on order of ld. CIT(A). 3.3 Therefore, by considering totality of facts and circumstances of case, I find no reason to interfere with order of ld. CIT(A) which in my view is reasoned order and same is 5 ITA No. 688/JP/2016 ITO, Ward- 6(2), Jaipur vs. Shri Vrindawan Lal Gupta . confirmed. Thus appeal of Revenue on merit of case is also dismissed. 4.0 In result, appeal of Revenue is dismissed Order pronounced in open court on 19/10/2016. Sd/ (Bhagchand) Accountant Member Jaipur Dated:- 19/10/ 2016 *Mishra Copy of order forwarded to: 1. Appellant- ITO, Ward- 6(2), Jaipur 2. Respondent- Shri Vrindawan Lal Gupta, Jaipur 3. CIT(A). 4. CIT, 5. DR, ITAT, Jaipur 6. Guard File (ITA No. 688/JP/2016) By order, Assistant. Registrar ITO, Ward- 6 (2), Jaipur v. Vrindawan Lal Gupta