Shri D.Murugesh, CHENNAI v. DCIT, Trichy

ITA 1797/CHNY/2011 | 2006-2007
Pronouncement Date: 02-02-2012 | Result: Partly Allowed

Appeal Details

RSA Number 179721714 RSA 2011
Assessee PAN AAHPM8327R
Bench Chennai
Appeal Number ITA 1797/CHNY/2011
Duration Of Justice 2 month(s) 23 day(s)
Appellant Shri D.Murugesh, CHENNAI
Respondent DCIT, Trichy
Appeal Type Income Tax Appeal
Pronouncement Date 02-02-2012
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted C
Tribunal Order Date 02-02-2012
Assessment Year 2006-2007
Appeal Filed On 09-11-2011
Judgment Text
IN THE INCOME-TAX APPELLATE TRIBUNAL CHENNAI C BENCH CHENNAI. BEFORE SHRI N.S. SAINI ACCOUNTANT MEMBER & SHRI GEORGE MATHAN JUDICIAL MEMBER I.T.A. NO. 1797/MDS/2011 ASSESSMENT YEAR: 2006-07 SHRI D. MURUGESH NO. 5/184-I SRI RAGAVENDRA NAGAR MADURAI BYE PASS ROAD KARUR. [PAN: AAHPM8327R] VS. THE DEPUTY COMMISSIONER OF INCOME TAX CIRCLE II TRICHY. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI R. VIJAYARAGHAVAN ADVOCATE REVENUE BY : SHRI T.N. PRAKASH JCIT DATE OF HEARING : 0 2 . 0 2 .201 2 DATE OF PRONOUNCEMENT : 02.02.2012 ORDER PER N.S. SAINI ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE LD. CIT(A) TIRUCHIRAPALLI DATED 13.09.2011 PASSED IN I TA NO. 193/2010-11 FOR ASSESSMENT YEAR 2006-07. SHRI R. VIJAYARAGHAVAN AD VOCATE REPRESENTED ON BEHALF OF THE ASSESSEE AND SHRI T.N. PRAKASH JC IT REPRESENTED ON BEHALF OF THE REVENUE. 2. THE REGISTRY HAS ISSUED A DEFECT MEMO TO THE AS SESSEE ON 09.11.2011 POINTING OUT THAT THE APPEAL FEE PAYABLE BY THE ASSESSEE WAS ` .10 000/- BUT THE ASSESSEE HAS PAID ONLY ` .500/- AND THEREFORE THERE WAS A SHORTFALL OF ` .9 500/- AND THE ASSESSEE SHOULD DEPOSIT THE BALANC E AMOUNT I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.1 11 1797 797797 797/M/11 /M/11 /M/11 /M/11 2 OF ` .9 500/-. WHEN THE APPEAL CAME UP FOR HEARING THE BENCH ENQUIRED FROM THE LD. AR WHY THE DEFECT POINTED OUT BY THE REGIS TRY WAS NOT RECTIFIED BY HIM. THE LD. AR FOR THE ASSESSEE FILED COPY OF THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF GILBS COMPUTER LTD . VS. ITAT AND OTHERS [2009] 317 ITR 159 (BOM) AND SUBMITTED THAT IT HAS BEEN HELD BY THE HONBLE BOMBAY HIGH COURT THAT IF THE TOTAL INCOME DETERMINED IS AT A NEGATIVE FIGURE THEN THE FEE OF ` .500/- ALONE WAS PAYABLE FOR FILING APPEAL TO THE INCOME TAX APPELLATE TRIBUNAL. HE SUBMITTED THA T IN THE PRESENT CASE THE INCOME DETERMINED BY THE ASSESSING OFFICER WAS LOSS OF ` .62 10 923/- AND THEREFORE THE APPEAL FEE PAYABLE WAS ONLY ` .500/- IN VIEW OF THE DECISION OF THE HONBLE BOMBAY HIGH COURT. THEREFOR E RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE BOMBAY HIGH COURT WE H OLD THAT THE APPEAL FEE PAYABLE BY THE ASSESSEE IN THE PRESENT APPEAL IS ` .500/- ONLY AND ADMIT THE APPEAL FOR HEARING. 3. THE ASSESSEE HAS TAKEN 4 GROUNDS OF APPEAL. GRO UND NO.1 AND 4 OF THE APPEAL ARE GENERAL IN NATURE AND HENCE REQUIRES NO ADJUDICATION BY US. GROUND NO. 2 READS AS UNDER: 2. THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE REOPENING OF THE ASSESSMENT AS THE A PPELLANT HAS FURNISHED ALL THE MATERIALS AND PARTICULARS FULLY A ND TRULY WHILE COMPLETING THE ASSESSMENT U/S 143(3) ON 26.12.2008. 2.1 THE COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE APPRECIATED THAT THE ADDITION MADE IN THE REASSESSM ENT HAS ARISEN ONLY DUE TO CHANGE OF OPINION OR IS A CASE O F REVIEW ON THE SAME SET OF FACTS AND NOT ON ACCOUNT OF CONCEALMENT OF ANY I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.1 11 1797 797797 797/M/11 /M/11 /M/11 /M/11 3 PARTICULARS BY THE APPELLANT; HENCE THE ORDER IS TO BE QUASHED AS BEING WITHOUT JURISDICTION. 4. AT THE TIME OF HEARING THE LD. AR OF THE ASSES SEE SUBMITTED THAT HE IS NOT PRESSING THIS GROUND OF APPEAL AND MADE AN ENDO RSEMENT TO THIS EFFECT IN THE GROUND OF APPEAL OF THE APPEAL MEMO. THEREFO RE THIS GROUND OF APPEAL IS DISMISSED AS NOT PRESSED. 4. THE ONLY GROUND REMAINING TO BE ADJUDICATED BY US IS GROUND NO. 3 WHEREIN THE GRIEVANCE OF THE ASSESSEE IS THAT THE L D. CIT(A) ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER DISA LLOWING THE ADDITIONAL DEPRECIATION ON WINDMILLS TO THE ASSESSEE. 5. THE LD. CIT(A) HAS DECIDED THE ISSUE AS UNDER: I HAVE GONE THE SUBMISSIONS MADE BY THE APPELLANT'S AUTHORISED REPRESENTATIVE AND THE ASSESSMENT ORDER IN WHICH TH E ASSESSING OFFICER HAS BROUGHT OUT CLEARLY THE REASONS FOR NOT ALLOWIN G ADDITIONAL DEPRECIATION COUNTERING THE JUDICIAL PRONOUNCEMENTS MENTIONED BY THE APPELLANT'S AUTHORISED REPRESENTATIVE AND I FIND TH AT THERE IS CONSIDERABLE FORCE IN THE ARGUMENTS OF THE ASSESSIN G OFFICER AS HE HAS CLEARLY BROUGHT OUT THE REQUIREMENT FOR ALLOWING AD DITIONAL DEPRECIATION UNDER SECTION 32(L)(IIA). AS THE ASSES SING OFFICER HAS CLEARLY BROUGHT OUT IN HIS ASSESSMENT ORDER THAT TH E APPELLANT IS NOT MANUFACTURING OR PRODUCING ANY NEW PRODUCTS. THE AP PELLANT IS IN THE BUSINESS OF GENERATION/ DISTRIBUTION OF ELECTRICITY DOES NOT AMOUNT TO MANUFACTURE OR PRODUCTION OF ANY ARTICLE OR A NEW T HING. THE ASSESSING OFFICER HAS ALSO STATED CLEARLY IN HIS ASSESSMENT O RDER THAT MANUFACTURE OR PRODUCTION OF ANY ARTICLE OR THING HAS NOT INCLU DED GENERATION OF POWER WHICH CAN BE CLAIMED UNDER SECTION 32(1)(IIA) FOR ADDITIONAL DEPRECIATION. THE APPELLANT'S AUTHORISED REPRESENTA TIVE HAS NOWHERE STATED THAT HE HAS FILED AN AUDIT REPORT IN FORM NO . 3AA FOR THE CLAIM OF ADDITIONAL DEPRECIATION UNDER SECTION 32(1)(IIA). U NDER THE CIRCUMSTANCES NO INTERFERENCE IS REQUIRED ON THE D ECISION TAKEN BY THE ASSESSING OFFICER IN DISALLOWING THE ADDITIONAL DEP RECIATION CLAIMED BY THE APPELLANT. I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.1 11 1797 797797 797/M/11 /M/11 /M/11 /M/11 4 6. AT THE TIME OF HEARING THE LD. AR FOR THE ASSE SSEE FILED BEFORE US A COPY OF THE ORDER OF THE HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. HI TECH ARAI LTD. [2010] 321 ITR 477 (MAD) AND SUBMITT ED THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE. 7. THE LD. DR COULD NOT CITE ANY CONTRARY DECISION TO THE DECISION CITED BY THE LD. AR OF THE ASSESSEE. 8. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND MAT ERIAL AVAILABLE ON RECORD WE FIND THAT THE SOLE ISSUE TO BE DECIDED I S AS TO WHETHER THE ASSESSEE IS ENTITLED TO ADDITIONAL DEPRECIATION ON WINDMILLS INSTALLED BY IT OR NOT. WE FIND THAT THE HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. HI TECH ARAI LTD. (SUPRA) HAS HELD AS UNDER: (II) THAT IN ORDER TO CLAIM THE ADDITIONAL DEPRECI ATION UNDER SECTION 32(1)(IIA) OF THE ACT THE NEW MACHINERY OR PLANT WOULD HAVE TO BE ACQUIRED AND INSTALLED AFTER MARCH 31 2002 BY A N ASSESSEE ALREADY ENGAGED IN THE BUSINESS OF MANUFACTURE OR PRODUCTIO N OF ARTICLE OR THING. THE REQUIREMENT OF THE PROVISION WAS NOT THA T THE SETTING UP OF NEW MACHINERY OR PLANT ACQUIRED AND INSTALLED AFTER MARCH 31 2002 WOULD HAVE TO HAVE ANY OPERATIONAL CONNECTIVITY TO THE ARTICLE OR THING THAT WAS ALREADY BEING MANUFACTURED BY THE ASSESSEE . IT COULD NOT BE SAID THAT THE SETTING UP OF A WIND MILL WOULD NOT F ALL WITHIN THE EXPRESSION SETTING UP OF A NEW MACHINERY OR PLANT. THERE WAS NO ERROR IN THE CONCLUSION OF THE TRIBUNAL IN CONFIRMING THE ORDER PASSED BY THE COMMISSIONER (APPEALS). NO SUBSTANTIAL QUESTION OF LAW AROSE. 9. IN VIEW OF THE ABOVE WE SET ASIDE THE ORDERS O F THE LOWER AUTHORITIES AND RESTORE THE ISSUE BACK TO THE FILE OF THE ASSES SING OFFICER. THE ASSESSING OFFICER IS DIRECTED TO VERIFY WHETHER THE AUDIT REPORT IN FORM NO. 3AA HAS BEEN FILED BY THE ASSESSEE OR NOT AND AFTER VERIFYING THE AUDIT REPORT I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.1 11 1797 797797 797/M/11 /M/11 /M/11 /M/11 5 TO READJUDICATE THE ISSUE AFRESH IN THE LIGHT OF TH E DECISION OF THE HONBLE MADRAS HIGH COURT CITED ABOVE. THUS THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 10. IN THE RESULT THE APPEAL OF THE ASSESSEE IS P ARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED AT THE CLOSE OF THE HEARING IN THE PRESENCE OF THE PARTIES ON 02.02.2012. SD/- SD/- (GEORGE MATHAN) JUDICIAL MEMBER (N.S.SAINI) ACCOUNTANT MEMBER CHENNAI DATED THE 02.02.2012 VM/- TO: THE ASSESSEE//A.O./CIT(A)/CIT/D.R.