Case Law Details

Case Name : Tapan Kumar Biswas Vs ITO (ITAT Kolkata)
Appeal Number : ITA No. 2049/Kol/2019
Date of Judgement/Order : 05/06/2020
Related Assessment Year : 2009-10
Courts : All ITAT (7336) ITAT Kolkata (592)

Tapan Kumar Biswas Vs ITO (ITAT Kolkata)

The issue under consideration is whether the higher rate of depreciation can be granted to the vehicles used for the display of advertisement under the provisions of the Income Tax Act, 1961.

In the present case, the assessee is an individual who is engaged in the business of advertisement through the display of banner, hoardings and mobile van. He has filed an income tax return for the relevant year where he claimed the higher rate of depreciation, i.e., 40% for the vehicles used for the display of advertisement where normally 15% was allowed in the Act. The CIT(A) has rejected this claim and pass the order.

ITAT states that the depreciation at a higher rate is allowed on the motor vehicle only if it is used by the assessee in the business of running the same on hire. Keeping in view the nature of the assessee’s business, ITAT is of the view that the vehicle used for the display of advertisement cannot be said to have used in the business of running the same on hire and the assessee, therefore, is not entitled to a higher rate of depreciation on such vehicles. ITAT, therefore, uphold the impugned order of the Ld. CIT(A) confirming the disallowance on account of assessee’s claim for depreciation at a higher rate on the vehicle.

FULL TEXT OF THE ITAT JUDGEMENT

This appeal filed by the assessee is directed against the order of Ld. CIT(A) – 18, Kolkata dated 28.06.2019 and the solitary issue involved therein relates to the disallowance of assessee’s claim for depreciation at higher rate on hoardings and mobile display car.

2. At the outset, it is noted that there is a delay of 2 days on the part of the assessee in filing this appeal before the Tribunal. In this regard, an application seeking condonation of the said delay is filed by the assessee and keeping in view the reasons given therein, I am satisfied that there was a sufficient cause for the delay of 2 days on the part of the assessee in filing this appeal before the Tribunal. Even the learned DR has not raised any objection in this regard. I, therefore, condone the said delay and proceed to dispose of the appeal of the assessee on merit.

3. The assessee in the present case is an individual who is engaged in the business of advertisement through display of banner, hoardings and mobile van. In the assessment originally completed u/s 143(3) vide an order dated 04.11.2011, the total income as declared by the assessee in his return of income at Rs. 11,26,360/- was accepted by the AO. The record of the said assessment came to be examined by the concerned Ld. CIT(A) and on such examination, he found that there was an error in the assessment order passed u/s 143(3) in allowing the claim of the assessee for depreciation at higher rate of 40% and 30% on hoardings and mobile display car respectively as against the admissible rate of 15%. Since the said error was prejudicial to the interest of the revenue, the order passed by the AO u/s 143(3) was set aside by the Ld. CIT vide an order dated 24.03.2014 passed u/s 263 with the direction to the AO to make the assessment afresh on the issue of correct rate of depreciation allowable on hoardings and mobile display car after making necessary enquiry. As per the direction of the Ld. CIT, a fresh assessment was completed by the AO vide an order dated 27.02.2015 passed u/s 143(3)/263 of the Act wherein he allowed depreciation to the assessee on hoardings and mobile display car only to the extent of 15% which resulted a disallowance of Rs. 12,65,566/-. On appeal, the Ld. CIT(A) confirmed the said disallowance made by the AO. Aggrieved by the order of the Ld. CIT(A), the assessee has preferred this appeal before the Tribunal.

4. I have heard the arguments of both the sides and also perused the relevant material available on record. As rightly contended by the learned counsel for the assessee, hoardings used for the purpose of advertisement has been treated as temporary structure by this Tribunal in various cases which is eligible for depreciation at 100%.

He however has submitted that depreciation on hoardings has been consistently claimed by the assessee @ 40% and since the same has been allowed in the earlier years as well as in the subsequent years, the claim of the assessee for depreciation on hoardings @ 40% may be allowed in order to maintain the consistency. I find merit in this contention of the learned counsel for the assessee and accordingly direct the AO to allow the claim of the assessee for depreciation @ 40% on hoardings.

5. As far as the depreciation claimed at higher rate of 40% on the car used for display of advertisement, it is observed that the depreciation at higher rate is allowed on the motor vehicle only if it is used by the assessee in the business of running the same on hire. Keeping in view the nature of the assessee’s business, I am of the view that the vehicle used for display of advertisement cannot be said to have used in the business of running the same on hire and the assessee therefore is not entitled to a higher rate of depreciation on such vehicles. I therefore, uphold the impugned order of the Ld. CIT(A) confirming the disallowance made by the AO on account of assessee’s claim for depreciation at a higher rate on vehicle.

6. In the result, the appeal of the assessee is partly allowed.

Order Pronounced in the Open Court on 5th June, 2020.

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