The Principal Commissioner Of Income Tax 1 v. Asian Mills Pvt. Ltd

IN THE HIGH COURT OF GUJARAT AT AHMEDABADR/TAX APPEAL NO. 245 of 2021 ========================================================== THE PRINCIPAL COMMISSIONER OF INCOME TAX 1 VersusASIAN MILLS PVT. LTD. ========================================================== Appearance:M R BHATT & CO.(5953) for the Appellant(s) No. 1MR B S SOPARKAR(6851) for the Opponent(s) No. 1 ========================================================== CORAM: HONOURABLE MS. JUSTICE SONIA GOKANIandHONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Date : 26/10/2021 ORAL ORDER (PER : HONOURABLE MS. JUSTICE SONIA GOKANI) 1. Being aggrieved by and dissatisfied with the orderdated 02.03.2021 passed by the Income TaxAppellate Tribunal (“ITAT” for short), Ahmedabad,the appellant has preferred this appeal raising thefollowing substantial questions of law:- “[A]Whether the Appellate Tribunal has erred inlaw and on facts in deleting the disallowance ofRs.2,59,03,812/- made under section 40(a)(ia) of theAct without appreciating that the assessee had notcomplied with the provisions of seb-sections (6) and(7) to Section 194C and that the assessee did notdeduct TDS under Section 194C(3) of the Act onfreight payments made to Essar Steel?[B]Whether the Appellate Tribunal has erred inlaw and on facts in deleting the disallowance ofRs.5,48,921/- without appreciating the fact that theadditional discount given is by way of godown ent and therefore, the assessee is under obligation todeduct TDS under section 1941 of the Act which theassessee failed to comply?[C]Whether the Appellate Tribunal has erred inlaw and on facts in deleting the depreciation on carand car expenses of Rs.34,63,547/- withoutappreciating the fact that the car purchased in thename of director cannot be said to be assets of thecompany” The Income Tax Appellate Tribunal (“the Tribunal” for short) passed an order dated 02.03.2021 in ITANo.1531/Ahd/2015 for the Assessment Year 2011- 12. There were cross appeals being ITA No.1397/Ahd./2015. Against the order of theTribunal passed in ITA No.1091/Ahd./2015, TaxAppeal No.244 of 2021 has been preferred beforethis Court by the appellant original respondent. The first question raised herein is identical, exceptfor the amount of disallowance. This Court, whiledeciding the Tax Appeal No.244 of 2021, dealt with the same in following manner: “2.The respondent assessee filed return on30.09.20130declaringtotalincomeofRs.8,65,92,110/- crores. It was processed undersection 143(1) of the Income Tax Act (“the Act” forshort) and the same was selected for scrutiny.3.Notice under section 142(1) of the Act along withquestionnaire was issued on 27.08.2012. Inresponse,the authorised representative of thecompany attended time to time. It was noticed that the respondent assessee had not deducted the taxunder section 194(C) for the payments made tovarious transporters, this included the freight inwardcharges and clearing and forwarding charges. 4.The Assessing Officer rejected the contention ofthe respondent assessee that TDS was not deducted,as the same was not applicable as per the provisionsof law. According to the assessee Company TDS wasnot to be deducted on payment made to thetransporters as per Clause 6 of section 194(c). Again,the details of the transporters have been filledin atthe time of filing of the TDS return, wherein theirPANs have been duly submitted to the authority.Therefore, the condition reflected in sub-section(7)also have been fulfilled. The Assessing Officer heldthe assessee in default and made the disallowance ofall the three charges of the total income of theassessee under section 40(a)(ia). 5.The assessee preferred the appeal before the 4.The Assessing Officer rejected the contention ofthe respondent assessee that TDS was not deducted,as the same was not applicable as per the provisionsof law. According to the assessee Company TDS wasnot to be deducted on payment made to thetransporters as per Clause 6 of section 194(c). Again,the details of the transporters have been filledin atthe time of filing of the TDS return, wherein theirPANs have been duly submitted to the authority.Therefore, the condition reflected in sub-section(7)also have been fulfilled. The Assessing Officer heldthe assessee in default and made the disallowance ofall the three charges of the total income of theassessee under section 40(a)(ia). 5.The assessee preferred the appeal before the CIT(Appeals), which deleted the addition to the extentof transportation towards freight, inward charges andclearing charges, but confirmed the addition ofRs.1,38,350/- towards forwarding charges forpayment to M/s. Trishul Transport Company. 6.The Revenue as well as the assessee both preferredappeal before the Tribunal. The Tribunal dismissedthe appeal of the Revenue and allowed the appeal ofthe assessee. The appeal of assessee was allowed onthe ground that it had obtained PAN card detailsfrom the transporters, which were furnished withTDS return. Therefore, the assessee’s claim cannotbe denied on account of non-deduction of TDS on thepayment made to the transporters towards freightinward charges and clearing charges under sub-section (6) of section 194(c). The claim also cannot bedenied on the ground that the assessee was under anobligation after obtaining the PANs from thetransporter to furnish the same in the prescribedform to the prescribed authorities.7.This Court has heard Mr. M.R.Bhatt, learnedSenior Advocate appearing with Mr.Karan Sanghani,learned advocate for the appellant and Mr.B.S.Soparkar, learned advocate for the opponent.8.The issue is covered by the decision of this Courtrendered in the case of Commission of Income-tax-I vs. Valibhai Khanbhai Mankad, [2012] 28taxman.com 119(Gujarat), where the issue was againwith regard to payment to the contractor andrequirement of deduction of TDS. Relevantparagraphs are reproduced as under: “3) We have heard the learned counsel for theRevenue as well as for the assessee. Section 194C ofthe Act, as is well known, pertains to payments tocontractors. Sub-section (1) of section 194C, as itstood at the relevant time, required that any personresponsible for paying any sum to any resident,contractor for carrying out any work in pursuance ofa contract between the contractor and the specifiedentities, shall credit specified sum as income tax onincome comprised therein. Likewise, sub-section (2)of section 194C required a person responsible forpaying any sum to resident-sub-contractor to deducttax at source under given circumstances. It is not indispute that ordinarily the assessee was required tomake such deduction on the payments made to thesub-contractors, unless he was covered under theexclusion clause contained in sub-section (3) ofsection 194C of the Act. Such provision, as it stood atthe relevant time, read as under:- “Section 194C(3):- No deduction shall be made undersub-section(1) or sub-section (2) from - (i)the amountof any sum credited or paid or likely to be credited orpaid to the account of, or to, the contractor or sub-contractor, if such sum does not exceed twentythousand rupees: Provided that where the aggregateof the amounts of such sums credited or paid orlikely to be credited or paid during the financial yearexceeds fifty thousand rupees, the person responsiblefor paying such sums referred to in sub-section (1)or, as the case may be, subsection (2) shall be liableto deduct incometax under this section: Providedfurther that no deduction shall be made under sub-section (2), from the amount of any sum credited orpaid or likely to be credited or paid during theprevious year to the account of the sub-contractorduring the course of business of plying, hiring orleasing goods carriages, on production of adeclaration to the person concerned paying orcrediting such sum, in the prescribed form andverified in the prescribed manner and within such time as may be prescribed, if such sub-contractor isan individual who has not owned more than twogoods carriages at any time during the previous year:Provided also that the person responsible for payingany sum as aforesaid to the subcontractor referred toin the second proviso shall furnish to the prescribedincome-tax authority or the person authorised by itsuch particulars as may be prescribed in such formand within such time as may be prescribed; or (ii)anysum credited or paid before the 1st day of June,1972; or (iii)any sum credited or paid before the 1stday of June, 1973, in pursuance of a contractbetween the contractor and a cooperative society orin pursuance of a contract between such contractorand the sub-contractor in relation to any work(including supply of labour for carrying out any work)undertaken by the contractor for the cooperativesociety. Explanation-For the purpose of clause(i),“goods carriage” shall have the same meaning as inthe Explanation to sub-section (7) of section 44AE.”4) Section 40(a)(ia) of the Act, in turn, provides thatcertain amounts shall not be deducted in computingthe income chargeable to tax under the head 'profitsand gains of business or profession', namely,payments made towards interest, commission orbrokerage etc., on which tax is deductible at sourceand such tax has not been deducted or, afterdeduction, the same has not been paid on or beforethe due date specified in sub-section (1) of section139 of the Act. Section 40(a)(ia) of the Act, insofar asit is relevant for our purpose, reads as under:-“Section 40(a)(ia):- Any interest, commission orbrokerage, [rent, royalty,] fees for professionalservices or fees for technical services payable to aresident, or amounts payable to a contractor or sub-contractor, being resident, for carrying out any work(including supply of labour for carrying out anywork), on which tax is deductible at source underChapter XVII-B and such tax has not been deductedor, after deduction, [has not been paid on or beforethe due date specified in sub-section (1) of section139:]” 5) From the above statutory provisions, it canbe seen that under section 40(a)(ia) of the Act,payments made towards interest, commission orbrokerage etc. would be excluded for deduction in computing the income chargeable under the head'profits and gains of business or profession', wherethough tax was required to be deducted at source, isnot deducted or where after such deduction, thesame has not been paid on or before the due date.Thus for application of section 40(a)(ia) of the Act, theforemost requirement would be of tax deduction atsource. 6) Section 194C, as already noticed, makesprovision where for certain payments, liability of thepayee to deduct tax at source arises. Therefore, ifthere is any breach of such requirement, question ofapplicability of section 40(a)(ia) would arise. Despitesuch circumstances existing, sub-section (3) makesexclusion in cases where such liability would notarise. We are concerned with the further proviso tosub-section (3), which provides that no deductionunder sub-section (2) shall be made from the amountof any sum credited or paid or likely to be credited orpaid to the subcontractor during the course ofbusiness of plying, hiring or leasing goods carriages,on production of a declaration to the personconcerned paying or crediting such sum in theprescribed form and verified it in the prescribedmanner within the time as may be prescribed, if suchsub-contractor is an individual who has not ownedmore than two goods carriages at any time during theprevious year. 7) The exclusion provided in sub-section (3) of section 194C from the liability to deducttax at source under sub-section (2) would thus becomplete the moment the requirements containedtherein are satisfied. Such requirements, principally,are that the sub-contractor, recipient of the paymentproduces a necessary declaration in the prescribedformat and further that such sub-contractor does notown more than two goods carriages during the entireprevious year. The moment, such requirements arefulfilled, the liability of the assessee to deduct tax onthe payments made or to be made to such sub-contractors would cease. In fact he would have noauthority to make any such deduction. 8) The laterportion of sub-section (3) which follow the furtherproviso is a requirement which would arise at amuch later point of time. Such requirement is thatthe person responsible for paying such sum to thesub-contractor has to furnish such particulars as prescribed. We may notice that under Rule 29D ofthe Rules, such declaration has to be made by theend of June of the next accounting year in question.9) In our view, therefore, once the conditions offurther proviso of section 194C(3) are satisfied, theliability of the payee to deduct tax at source wouldcease. The requirement of such payee to furnishdetails to the income tax authority in the prescribedform within prescribed time would arise later andany infraction in such a requirement would not makethe requirement of deduction at source applicableunder sub-section (2) of section 194C of the Act. Inour view, therefore, the Tribunal was perfectlyjustified in taking the view in the impugnedjudgment. It may be that failure to comply suchrequirement by the payee may result into some otheradverse consequences if so provided under the Act.However, fulfillment of such requirement cannot belinked to the declaration of tax at source. Any suchfailure therefore cannot be visualized by adverseconsequences provided under section 40(a)(ia) of theAct. 10) When on the basis of the record it is notdisputed that the requirements of further provisowere fulfilled, the assessee was not required to makeany deduction at source on the payments made tothe subcontractors. If that be our conclusion,application of section 40(a)(ia) would not arise since,as already noticed, section 40(a)(ia) would applywhen there is a requirement of deduction of tax atsource and such requirement is either not fulfilled orhaving deducted tax at source is not deposited withinprescribed time.” 9.Yet another decision of the HighCourt of Madras is reported in the case ofCommissioner of Income Tax, Madurai vs.SriParameshwari Spinning Mills(P.)Ltd.,[2019] 10taxmann.com 386(Madras), where sub-section 6 ofsection 194, which grants benefit to the assessee, isdiscussed along with subsection(7) of section 194.The Court held that this benefit comes with thecondition of compliance of sub-section (7) of section194(c). This is a procedure required to be followed.The Court held that non-filing of the statement interms of sub-section(7) of section 194(C) cannot takeaway the benefit, which will accrue to the assesseeunder subsection(6) of section 194. Relevant paragraphs are reproduced as under: “6. We findsub-Section 6 of Section 194C is the provision whichgrants benefit to the assessee. This benefit comeswith the condition of compliance of Sub-Section (7) ofSection 194C, which is the procedure to be followed.The question would be as to whether if the procedureunder Section 194C(7) has not been adhered to bythe assessee would it be fatal and thereby disentitlethe assessee to the benefit under sub-Section 6 ofSection 194C. 7. It is a submission of Mr.A.S.Sriraman, learnedcounsel for the appellant/assessee that Section 31Adeals with statement of deduction of tax under sub-Section 3 of Section 200 referring to Section 31(A)(4)(vi). It is submitted that the deductor at the time ofpreparing statement of tax, deductor shall furnishparticulars of amount paid or credited on which taxwas not deducted in view of the compliance ofprovision of sub-Section 6 of Section 194C by thepayee. Section 234(E) was relied to state that if thestatement is not filed, a fee of Rs.200/-for every day,during which the failure continues, has to be paid bythe assessee. Therefore, it is the submission that thenonfiling of a statement in terms of sub-Section 7 ofSection 194C cannot take away the benefit which willaccrue to the assessee under sub-Section 6 ofSection 194. 8. We fail to understand as to what is theapprehension in the mind of the Revenue when theTribunal has remanded the matter to the AssessingOfficer to consider whether the assessee has filedform no. 26(Q) belatedly and to examine as towhether the fee has to be collected. We find thatthere is no ground to interfere with the order passedby the Tribunal. 9. Ms.V.Pushpa placed reliance onthe decision of the Hon'ble Supreme Court in thecase of CIT Vs. Valibhai Khanbhai Mankad reportedin [(2014) 51 Taxmann.com 385 (SC)] where theHon'ble Supreme Court has granted leave to fileappeal by the revenue against the order passed bythe Gujrat High Court in CIT Vs. Valibhai KhanbhaiMankad reported in [(2012) 28 Taxmann.com 119].In the said decision the High Court of Gujarat heldthat once conditions of proviso to Section 194(C)(7)are satisfied, liability of payer to deduct taxes at source would cease and consequently, disallowanceof payment of subcontractor under Section 40(a)(ia)could not be made on the ground that the asseseehad not furnished form no.15J as required underRule 29D. We find that the said decision is of noassistance to the case of the Revenue. 10. Mr.A.S.Sriraman, learned counsel for theassessee referred to the decision of the ITAT Jaipur inthe case of ACIT Vs. Arihant Trading Co. reported in[176 ITD 397 (Jaipur-Tri)]. In the said decision it hasbeen held that Section 194C(6) & (7) are independentof each other and cannot read together to attractdisallowance under Section 40(a)(ia) read withSection 194C of the Act” 10. In the instant case also, as detailed above, theassessee company has not deducted the TDS ofpayment made to the transporters as per sub-section(6) of section 194(c). However, the details ofthe transporters have been filled-in in the TDSreturn, wherein their PAN cards also have been dulysubmitted to the Income-tax authorities, as this is asufficient compliance of sub-section (7) ofsection194(c). The Tribunal was absolutely correct inupholding the version of the assessee. It also rightlyheld that after obtaining the PAN Card from thetransporters, assessee is needed to furnish the samein the prescribed form to the prescribed authoritywithin prescribed time. section194(C) (7) isreproduced as under: “(7) The person responsible for paying or creditingany sum to the person referred to in sub-section (6)shall furnish, to the prescribed income-tax authorityor the person authorised by it, such particulars, insuch form and within such time as may beprescribed.” 11. The Tribunal held that there is no prescribedauthority nominated under the provisions of law.Thus, in absence of such prescribed authority, nofault was attributed to the assessee obviously for notfiling the details before such authority. The detailsfiled by the respondent assessee along with FormNo.26 naturally could be construed as sufficientcompliance. No fault can be found with these detailedfindings and the settled position of law. 12. The first question is accordingly answered.” 4.Here also the first question is accordingly answered.5.So far as the second question is concerned, dealingwith the disallowance of Rs.5,48,921/-, we noticethat the Assessing Officer has added disallowance ofRs.5,48,921/-, whereas the CIT(Appeals) deleted thesaid addition made by the Assessing Officer for theadditional discount given on account of the godownrent and tax not deducted thereon under section194(i) of the Act.5.So far as the second question is concerned, dealingwith the disallowance of Rs.5,48,921/-, we noticethat the Assessing Officer has added disallowance ofRs.5,48,921/-, whereas the CIT(Appeals) deleted thesaid addition made by the Assessing Officer for theadditional discount given on account of the godownrent and tax not deducted thereon under section194(i) of the Act. 6. 4.Here also the first question is accordingly answered.5.So far as the second question is concerned, dealingwith the disallowance of Rs.5,48,921/-, we noticethat the Assessing Officer has added disallowance ofRs.5,48,921/-, whereas the CIT(Appeals) deleted thesaid addition made by the Assessing Officer for theadditional discount given on account of the godownrent and tax not deducted thereon under section194(i) of the Act.5.So far as the second question is concerned, dealingwith the disallowance of Rs.5,48,921/-, we noticethat the Assessing Officer has added disallowance ofRs.5,48,921/-, whereas the CIT(Appeals) deleted thesaid addition made by the Assessing Officer for theadditional discount given on account of the godownrent and tax not deducted thereon under section194(i) of the Act. 6. As noted by the ITAT, the assessee gave additionaldiscount to parties on account of godown rent paidby the said parties. According to the assessee, thecustomers did not take the delivery of the goods intheir own godown after the purchase and the goodswould continue to be at the godown of the assesseetill the customer sells the goods to the other parties.However, five persons to whom the deduction hadbeen given by the assessee had taken the delivery ofthe goods to their own godown and, therefore, theywere given the discount for the godown rent paid bydiscount to parties on account of godown rent paidby the said parties. According to the assessee, thecustomers did not take the delivery of the goods intheir own godown after the purchase and the goodswould continue to be at the godown of the assesseetill the customer sells the goods to the other parties.However, five persons to whom the deduction hadbeen given by the assessee had taken the delivery ofthe goods to their own godown and, therefore, theywere given the discount for the godown rent paid by them, on the ground that these parties were locatedin Mumbai and they also owned the godown. TheAssessing Officer had chosen not to allow thepayment made to them as according to him, thediscounts were for rent, which required deduction oftax under section 194(1) of the Act, and, therefore,this discount had been added to the total income ofthe assessee. The CIT(Appeals) deleted the addition. TheCIT(Appeals) had directed to verify the contention ofthe Revenue and modify the above and subject toverification, disallowance of the amount was deleted.When challenged before the Tribunal, it held thatthe discount offered by the assessee to its partieshad been disallowed on two counts. Firstly, thatthey were owning their own godown in Mumbai andsecondly, the assessee was paying the rent to thoseparties in the form of discounts extended to themand such discount is subject to the provisions ofsection 194(1) paying the rent in the garb ofdiscounts. 9. 10. The Tribunal rightly held that the Assessing Officerhad no authority to sit on the arm chair of theassessee and direct the assessee to carry out itsbusiness affairs in a particular manner, so far asthe first reason was concerned. The second reason,according to the Tribunal, of protection of section194(i) of the Act on the discount extended was notsustainable. Again, the assessee had claimed theassessment as deduction, which cannot be equatedwith the rent. The CIT (Appeals) adjudicated theissue raised before it by allowing the appeal of theassessee subject to the directions, which has beendiscussed above. Hence, it did not interfere. The Tribunal is absolutely right in holding thatevery assessee is required to decide its ownbusiness affairs. The manner of conducting thebusiness also gives it a fillip, which shall need to beessentially decided by the assessee and no one cancomment and run his business usurping hisposition. Again, the rational given on the discountand having held it a non-protection of the provisions 11. 12. 13. of section 194(i) of the Act, would not require anyinterference. The Tribunal is absolutely right in holding thatevery assessee is required to decide its ownbusiness affairs. The manner of conducting thebusiness also gives it a fillip, which shall need to beessentially decided by the assessee and no one cancomment and run his business usurping hisposition. Again, the rational given on the discountand having held it a non-protection of the provisions 11. 12. 13. of section 194(i) of the Act, would not require anyinterference. So far as the third issue is concerned, there was adisallowance of depreciation on expenses relating tocar which was registered in the name of Director. disallowance of depreciation on expenses relating tocar which was registered in the name of Director. The assessee claimed depreciation of three cars,out of which two cars were bought during the yearunder consideration. The cars were registered in thename of Directors, but they were used for thebusiness purpose of the assessee company. The Assessing Officer held that the car purchasedand owned in the name of Directors, cannot be saidto be the asset of the company, since the assesseecompany and the Directors are two differentpersons. It was held to be their asset in personalcapacities. Again, according to the Assessing Officer,the Director may not be the Director of the assesseecompany and he may also hold Directorship withother company or can also hold stake in some otherbusiness concern. and owned in the name of Directors, cannot be saidto be the asset of the company, since the assesseecompany and the Directors are two differentpersons. It was held to be their asset in personalcapacities. Again, according to the Assessing Officer,the Director may not be the Director of the assesseecompany and he may also hold Directorship withother company or can also hold stake in some otherbusiness concern. He did not find satisfactory evidence to establishthat their purchase of cars was by the company onthat their purchase of cars was by the company on 14. 15. behalf of the Director. The Assessing Officer also held and observed thatthe depreciation was denied in the year 2010-11, asthe assessee failed to establish the same onproducing the documentary evidence. He thus,disallowed the depreciation, RTO expenses andinsurance charges of all the three cars. The samewas challenged by the assessee before theCIT(Appeals). The CIT(Appeals) held in favour of the assessee byholding thus: “20. Aggrieved assessee preferred an appealbefore the learned CIT(A) who allowed the appealof the assessee by observing as under: Having considered the facts of the case I aminclined to accept the contentions of the Ld.A.R. asadmitted by the A.O himself the funds forpurchase of the car were provided by theappellant. The Hon’ble Supreme Court in the case of MysoreMinerals Ltd. vs. C.I.T 239 ITR 775(S.C.) has heldthat the section of the I.T.Act, 1961, confers abenefit of the assessee. The provision should be sointerpreted and the words used therein should beassigned such meaning as would enable theassessee to secure the benefit intended to be givenby the Legislature to the assessee. It was furtherheld by the Hon’ble Supreme Court that the termowned as occurring in section 32(1) of the Income-tax Act must be assigned a wider meaning. TheHon’ble Supreme Court has held as under:“It is well-settled that there cannot be two ownersof the property simultaneously and in the same 16. The Hon’ble Supreme Court in the case of MysoreMinerals Ltd. vs. C.I.T 239 ITR 775(S.C.) has heldthat the section of the I.T.Act, 1961, confers abenefit of the assessee. The provision should be sointerpreted and the words used therein should beassigned such meaning as would enable theassessee to secure the benefit intended to be givenby the Legislature to the assessee. It was furtherheld by the Hon’ble Supreme Court that the termowned as occurring in section 32(1) of the Income-tax Act must be assigned a wider meaning. TheHon’ble Supreme Court has held as under:“It is well-settled that there cannot be two ownersof the property simultaneously and in the same 16. sense of the term. The intention of the Legislaturein enacting section 32 of the Act would be bestfulfilled by allowing deduction in respect ofdepreciation to the person in whom for the timebeing vests the dominion over the building andwho is entitled to use it in his own right and isusing the same for the purpose of his business orprofession. Assigning any different meaning wouldnotsubservethelegislativeintent.”4.3.1Further, the Ahmedabad I.T.A.T. in thecase of Ambuja Synthetics Mills Pvt. Ltd. vs. theDy. C.I.T., Range-1, Ahmedabad, on similar facts,decided the issue in favour of the assessee, byholding. “It is not disputed that funds for purchases of thecar- were provided by the assessee company whichis also reflected in the accounts of the assesseecompany. In our opinion, when the car is actuallyused for the purpose of business of the companydepreciation thereon cannot be denied.” As regards the A.O’s observation that theappellant failed to establish that the vehicles wereused by the company, it is seen that there arevarious judicial pronouncements to the effect thatthe use means kept ready for use and not actuallyuse. The case laws cited at 123 ITR 404 (Delhi,170 Taxman 407(MP), 187 Taxman 442 (Mad), 201Taxman 666 ( P & H), 198 Taxman 470 & 199Taxman 273 are in favour of the appellant.” The Revenue challenged the same before theTribunal. It also relied on the decision of ITO vs.Electro Ferro Alloys Ltd. in ITA No.2773/Ahd/2009reported in 25 taxmann.com 458. According to theITAT, the material available on record, when lookedat, the assessee though was not the legal owner ofthe vehicle, it has made the payment for acquisition of cars and thus, it is a beneficial owner. It is,therefore, held to be entitled for depreciation on thecar. It has drawn the support from the decision ofITO vs. Electro Ferro Alloys Ltd.B (supra) and thedecision of the Rajasthan High Court in CIT(Appeals) vs. Mohd. Bux Shokat Ali (no.2),[2002]256 ITR 357(Raj.) and the decision in the case ofCIT vs. Basti Sugar Mills Co.Ltd. [2002] 257 ITR. 88(Delhi) 17. The Tribunal has rightly distinguished the conceptof dominion ownership of the car. The questionraised is answered accordingly. of dominion ownership of the car. The questionraised is answered accordingly. 18.In the result, in absence of substantial questions oflaw arising for consideration, we choose to dismissthe appeal.law arising for consideration, we choose to dismissthe appeal. (MS. SONIA GOKANI, J. ) SUDHIR (HEMANT M. PRACHCHHAK,J)