Pimpri Chinchwad Nwe Town Dev. Authority, Pune v. DCIT, Cir.-10,, Pune

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV JUDICIAL MEMBER AND SHRI D. KARUNAKARA RAO ACCOUNTANT MEMBER I.T.A. NO. 1011 & 1012/PN/2010 A.Y. 2003-04 AND 2006-07 DY. CIT CIR. 10 PUNE APPELLANT VS. PIMPRI CHINCHWAD NEW TOWN DEVELOPMENT AUTHORITY SECTOR 26 PRADHIKARAN PUNE-44 PAN AAALP 0279 Q RESPONDENT C.O. NO. 28 AND 29/PN/2010 ARISING OUT OF I.T.A. NO. 1011 & 1012/PN/2010 A.Y. 2003-04 AND 2006-07 PIMPRI CHINCHWAD NEW TOWN DEVELOPMENT AUTHORITY SECTOR 26 PRADHIKARAN PUNE-44 PAN AAALP 0279 Q CROSS OBJECTOR VS. DY. CIT CIR. 10 PUNE APPELLANT IN APPEAL ASSESSEE BY: SHRI S.N. PURANIK DEPARTMENT BY: SHRI S.K. SINGH DATE OF HEARING: 27-12-2011 DATE OF PRONOUNCEMENT: 30-12-2011 ORDER PER SHAILENDRA KUMAR YADAV JM THE APPEALS BY THE DEPARTMENT AND THE CROSS OBJECTIONS BY THE ASSESSEE ARE DIRECTED AGAINST SEP ARATE 2 ITA NO.1011 & 1012/PN/2010 AND CVO NO. 28 AND 29/PN/2010 PIMPRI CHINCHWAD NEW TOWN DEV. AUTHORITY A.Y. 2003-04 AND 2006-07 ORDERS OF THE CIT(A)-V PUNE BOTH DATED 31-3-2010 FOR A.Y. 2003-04 AND 2006-07. THE GROUNDS RAISED BY THE REV ENUE READ AS UNDER: 1. WHETHER ON THE FACTS AND CIRCUMSTANCES F THE CASE AND IN LAW THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION MADE ON ACCOUNT OF EXCESS DEPRECIATION CLAIMED STATING THAT THE EXPLANATION6 TO SEC. 43(6) APPLIES TO THE CASE OF THE ASSESSEE WHE REAS ON A COMBINED READING OF SEC. 2(45) 5(1) AND SEC. 10 OF THE ACT IT IS SEEN THAT IN THE CASE OF ASSESSEE WHOSE INCOME IS EX4EMPT US 10 IT CANNOT BE SAID TO BE NOT REQUIRED TO COMPUTE ITS TOTAL INCOME AS STATED IN AMENDED EXPLANATION 6 TO 43(6)? 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) WAS JUSTIFIED IN DE LETING THE DISALLOWANCE OF DEPRECIATION OF RS. 1 68 80 373 /- BY HOLDING THAT EXPLANATION 6 TO SEC. 43(6) SQUAREL Y APPLIES TO THE CASE OF THE ASSESSEE MEANING THEREBY THAT ONLY DEPRECIATION PROVIDED IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE IN RESPECT OF THE YEAR FOR WHICH THE INCOME OF THE ASSESSEE WAS EXEMPT HAS TO BE CONSIDERED TO BE THE DEPRECIATION ACTUALLY ALLOW ABLE UNDER THE I.T. ACT? 3. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION OF RS. 7 42 84 300/- WHEN THE ASSESSEES INCOME IS LIABLE FOR TAXATION UNDER THE ACT AFTER THE PROVISION OF SEC. 10(20A) OF THE ACT PROV IDING FOR SUCH EXEMPTION WERE OMITTED BY FINANCE ACT 2002? 4. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION OF RS. 7 42 84 300/- WHEN THE ASSESSEE IS NOT REGISTERED U/S 12A OF THE ACT AND HENCE INCOME OF THE ASSESSEE IS NOT EXEMPT U/S 11 O F THE ACT 2 AT THE OUTSET OF HEARING THE LEARNED COUNSEL FOR THE ASSESSEE POINTED OUT THAT SIMILAR ISSUE CAME UP FOR CONSIDERATION BEFORE CO-ORDINATE BENCH OF THE TRIBU NAL IN ASSESSEES OWN CASE FOR A.Y. 2004-05 IN ITA NO. 3 ITA NO.1011 & 1012/PN/2010 AND CVO NO. 28 AND 29/PN/2010 PIMPRI CHINCHWAD NEW TOWN DEV. AUTHORITY A.Y. 2003-04 AND 2006-07 1229/PN/2009 AND THE TRIBUNAL VIDE ITS ORDER DATED 21- 10-2011 HAS REMITTED THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO ADJUDICATE AF RESH IN ACCORDANCE WITH LAW BY OBSERVING AS UNDER: 7. IN THIS BACKGROUND RIVAL PARTIES HAVE ADVANCED THEIR ARGUMENTS WITH REGARD TO GROUND NOS. 1(I & II ) RELATING TO THE CLAIM OF DEPRECIATION ON ACCOUNT OF EXPLANATION 6 TO SEC. 43(6) OF THE ACT. AS PER THE ASSESSEE SIMILAR ISSUE CAME UP BEFORE THE TRIBUNAL IN ITA NO. 382/PN/2007 FOR A.Y. 2003-04 IN THE CASE OF MAHARASHTRA STATE WAREHOUSING CORPORATION PUNE AND VIDE ITS ORDER DATED 23-8-2011 THE ISSUE HAS B EEN REMITTED TO THE FILE OF THE A.O TO BE DECIDED AFRES H IN ACCORDANCE WITH LAW. THE LEARNED DR SUBMITTED THAT IN VIEW OF THE PRECEDENT IN THE ASSESSEES OWN CASE I N THIS YEAR ALSO THE ISSUE BE REMITTED BACK TO THE FI LE OF THE AO TO BE DECIDED IN ACCORDANCE WITH LAW. 8. HAVING CONSIDERED THE RIVAL SUBMISSIONS IN OUR VIEW AS SIMIAN MATTER HAS BEEN REMITTED BACK TO TH E FILE OF THE A.O BY OUR CO-ORDINATE BENCH FOR THE A. Y. 2003-04 (SUPRA) WE THEREFOR3E DEEM IT FIT AND PROPE R TO SET ASIDE THE ORDER OF THE CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF THE A.O WITH DIRECTION T O ADJUDICATE AFRESH THE AFORESAID ISSUE IN ACCORDANCE WITH LAW. 9. NEEDLESS TO MENTION THE AO SHALL ALLOW THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD IN SUPPORT OF ALL ITS CLAIMS AND THE AO SHALL CONSIDER IT AND ADJUDICATE AFRESH AS PER LAW. 3. FACTS BEING SIMILAR SO FOLLOWING THE SAME WE S ET ASIDE THE ORDERS OF THE CIT(A) FOR THE YEARS UNDER CONSIDERATION AND REMIT THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO ADJUDICATE AF RESH THE AFORESAID ISSUE IN ACCORDANCE WITH LAW. AS A RESULT BOTH THE APPEALS OF THE REVENUE ARE ALLOWED FOR STATISTI CAL PURPOSES. 4 ITA NO.1011 & 1012/PN/2010 AND CVO NO. 28 AND 29/PN/2010 PIMPRI CHINCHWAD NEW TOWN DEV. AUTHORITY A.Y. 2003-04 AND 2006-07 5. COMING TO THE CROSS OBJECTIONS FILED BY THE ASSESSEE THE SAME DO NOT REQUIRE ANY SEPARATE ADJUDICATION AS THE ISSUES HAVE ALREADY BEEN REMAND ED BACK TO THE FILE OF THE ASSESSING OFFICER WHILE DEA LING WITH THE APPEALS FILED BY THE REVENUE. AS A RESULT THE CROSS OBJECTIONS FILED BY THE ASSESSEE ARE DISMISSED AS INFRUCTUOUS. TO SUM UP THE APPEALS OF THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES WHILE THE CROSS OBJECTIONS OF THE ASSESSEE ARE DISMISSED AS INDICATED ABOVE. DECISION PRONOUNCED IN THE OPEN COURT ON 30-12-2011 . SD/- SD/- D. KARUNAKARA RAO SHAILENDRA KUMAR YADAV ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE DATED THE 30 TH DECEMBER 2011 ANKAM COPY OF THE ORDER IS FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-(A)- V PUNE 4. THE CIT V PUNE 5. THE D.R ITAT PUNE BENCH PUNE 6. GUARD FILE BY ORDER SR. PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL