IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 25TH JUNE 2008 / 4TH ASHADHA 1930 ITA.No. 26 of 2003() -------------------- ITA.144/(COCH)/1999 of I.T.A.TRIBUNAL,COCHIN BENCH .................... APPELLANT/RESPONDENT ------------------------------------- SRI.P.DIVAKARAN NAIR, "POORNA", KARAKONAM, NEYYATTINKARA. BY ADV. SRI.P.BALAKRISHNAN (E) SRI.K.C.ARUN RESPONDENTS: APPELLANT ---------------------- THE COMMISSIONER OF INCOME TAX, TRIVANDRUM. BY ADV. SRI.P.K.R.MENON(SR.),SR.COUNSEL FOR IT SRI.GEORGE K. GEORGE, SC FOR IT THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 25/06/2008, ALONG WITH ITA NO. 48 OF 2003 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C .N. RAMACHANDRAN NAIR & V.K. MOHANAN, JJ. -------------------------------------------- I.T.A. No. 26 & 48 OF 2003 -------------------------------------------- Dated this the 25th day of June, 2008 JUDGMENT Ramachandran Nair,J. Heard counsel for the appellant and senior standing counsel appearing for the revenue. Common question which arises in both the appeals pertains to assessee's claim for depreciation on two lorries. The assessee is a contractor who has returned 12% net contract receipts as income from business. The assessing officer instead of granting depreciation reduced the net income from 12% offered to 10%. Even though first appeal was allowed, the Tribunal reversed the order of the first appellate authority by stating that no evidence is there to establish ownership and use of lorries for business purposes. We do not find any justification to interfere with Tribunal's order because if evidence is lacking about ownership and use of the truck in business, appellant is not entitled to depreciation. We also notice that the Officer was considerate to the assessee because while declining depreciation he reduced the net income returned from 12% to 10%. Therefore we do not find any ground to interfere with Tribunal's order on this issue. 2. The next question pertains to addition of Rs. 30,000/- and Rs. 2 43,000/- and odd, respectively for the two assessment years, for want of explanation for the credit made in the OD account. Even though assessee produced certificate from the Chit Fund about source, it is noticed that Chit Fund was closed and no cross checking could be made. The Tribunal noticed that confirmation letter issued by the Chit Fund was available with the assessee even at the time of assessment, but assessee did not produce the same. Therefore the Tribunal was of the view that document produced by the appellant cannot be accepted at the stage of appeal. We do not find anything wrong in the Tribunal's view because if the confirmation letter was available nothing stopped the assessee from producing it before the assessing officer. The assessee did not offer explanation for the non-production of confirmation letter before the assessing officer at the time of assessment. Probably documents would have been obtained with back date later. We do not find any question of law arising on this issue also. We therefore dismiss both the appeals. (C.N.RAMACHANDRAN NAIR) Judge. (V. K. MOHANAN) Judge. kk 3