IN INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC KOLKATA Before Shri S.S, Godara, Judicial Member ITA No.648/Kol/2019 Assessment Year:2010-11 Babulal Krishna Gopal, Income Tax Officer, 108, J.L. Nehru Road, P.O. Ward-3(1), Apcar Garden Raniganja, Dist. Burdwan V/s . West, P.O. Asansol, Dist. Pin713347 Paschim Burdwan-713304 [PAN No.AACFB 7763 M] Appellant ..Respondent By Appellant None By Respondent Shri Satyajit Mondal, Addl. CIT-SR-DR Date of Hearing 26-08-2019 Date of Pronouncement 30-08-2019 ORDER This assessee s appeal for assessment year 2010-11 arises against Commissioner of Income-tax (Appeals)-Asansol s order dated 19.12.2018 passed in case No.83/CIT(A)/ASL/ITO/Wd-3(1)/Asl/130-14, involving proceedings u/s. 143(3) of Income Tax Act, 1961; in short Act . Case called twice. None appears at assessee s behest. Case file suggests that assessee has already placed on record his written submission. I therefore proceed to decide instant case ex pare against assessee. Heard learned departmental representative. Case file / assessee s written submission perused. 2. assessee s first substantive grievance challenges correctness of both lower authorities action disallowing interest amount of 59,795/- u/s 40A(2)(b) of Act to be excessive in case of specified related parties. Learned departmental representative fails to dispute that neither of lower authority has given any finding ITA No.648/Kol/2019 A.Y. 2010-11 Babulal Krishna Gopal Vs. ITO Wd-3(1), Asl. Page 2 on market rate of interest in respective orders. I therefore conclude that impugned disallowance has no legs to stand in absence of any market rate of interest payment determined by authorities. assessee succeeds in his former substantive ground. 3. Next comes depreciation claim disallowance of 2,905/- in relation to assessee s forming part of block asset. Both lower authorities hold that he has used vehicle in question for his own business than on hire basis. Learned departmental representative fails to dispute that assessee had earlier used very vehicle on hire basis and therefore, impugned depreciation @ 30% is allowable since relevant block of assets continues to operate. This second substantive ground also accepted. 4. Coming to depreciation disallowance on motor car and corresponding expenses disallowed @ 5% amounting to 4,293/- and 3,755/-; respectively on account of personal use, I find merit in learned departmental representative s argument that such personal usage element cannot be altogether denied in given facts and circumstances. These two substantive grounds fail therefore. 5. This assessee s appeal is partly allowed in above terms. Order pronounced in open court on 30/08/2019 Sd/- (S.S. Godara) Judicial Member Kolkata, Dkp/Sr.PS - /08/2019 Copy of Order Forwarded to:- 1. /Appellant-Babulal Krishna Gopal, 108, J.L. Nehru Road, P.O. Raniganj, Dist. Burdwan Pin-713347 2. Respondent-ITO Wd-3(1), Apcar Garden West, P.O. Asansol, Dist. Paschim Burdwan Pin-713304 3. Concerned CIT 4. CIT (A) 5. &DR, ITAT, Kolkata 6. Guard file. By order Babulal Krishna Gopal v. Income-tax Officer, Ward-3(1), Burdwan