M/s Seth Mohanlal Hiralal Construction Company, v. The ACIT, Cir. 1(1),

ITA 36/IND/2007 | 1999-2000
Pronouncement Date: 12-04-2010 | Result: Dismissed

Appeal Details

RSA Number 3622714 RSA 2007
Bench Indore
Appeal Number ITA 36/IND/2007
Duration Of Justice 3 year(s) 3 month(s)
Appellant M/s Seth Mohanlal Hiralal Construction Company,
Respondent The ACIT, Cir. 1(1),
Appeal Type Income Tax Appeal
Pronouncement Date 12-04-2010
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 02-01-2009
Date Of Final Hearing 12-04-2010
Next Hearing Date 12-04-2010
Assessment Year 1999-2000
Appeal Filed On 12-01-2007
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH INDORE BEFORE SHRI JOGINDER SINGH JUDICIAL MEMBER AND SHRI V.K. GUPTA ACCOUNTANT MEMBER ITA NO.36 TO 38/IND/07 A.YS. 1999-00 2000-01 & 2003-04 M/S SETH MOHANLAL HIRALAL CONSTRUCTION COMPANY ITARSI PAN AAFHS-6266-P APPELLANT VS ASSTT. COMMISSIONER OF INCOME TAX CIRCLE 1(1) BHOPAL RESPONDENT APPELLANT BY : SHRI S.S. DESHPANDE CA RESPONDENT BY : SMT. APARNA KARAN SR. DR O R D E R PER SHRI JOGINDER SINGH JM THESE APPEALS ARE BY THE ASSESSEES AGAINST THE ORDE R OF THE LEARNED CIT(A) DATED 16 TH OCTOBER 2006. IN ITA NO. 36/IND/2007 THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS :- 2 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LEARNED CIT(A) ERRED IN LAW IN DISMISSING THE GROUN D RAISED WITH REGARD TO INITIATION OF PROCEEDINGS U/S 147/14 8 OF THE IT ACT 161 WHICH BEING A LEGAL ISSUE LEARNED CIT(A) OUGHT TO HAVE DECIDED SUCH ISSUE ON MERITS EVEN THOUGH IT WA S NOT WELL PRESSED BY THE COUNSEL THEN INADVERTENTLY. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LEARNED CIT(A) ERRED IN LAW IN DISMISSING THE GROUN D RAISED WITH REGARD TO ASSESSMENT FRAMED IS BAD IN LAW AB INITIO PARTICULARLY IN THE CIRCUMSTANCES WHERE NO NOTICE U/S 143(2) WAS EITHER ISSUED OR SERVED ON THE APPELLANT WITHIN THE PERIOD OF LIMITATION I.E. ONE YEAR FROM THE DATE OF SUBMISSION OF THE RETURN OF INCOME. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LEARNED CIT(A) ERRED IN LAW AND FACTS IN DISALLOWIN G OF TH4 CLAIM OF DEPRECIATION MADE ON SHUTTERING PLATES PRO PERLY @ 50% WHICH WAS AFFIRMED BY LEARNED CIT(A) BHOPAL W HILE PASSING THE APPELLATE ORDER RELEVANT TO ASSESSMENT YEAR 1997-98 VIDE ORDER DATED 08.08.03 IN APPELLANTS OWN CASE AND NO SECOND APPEAL WAS PREFERRED BY THE DEPARTMEN T AND AS SUCH BECOME FINAL AND IS OF BINDING NATURE. 3 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LEARNED CIT(A) ERRED IN LAW AND FACTS IN DISMISSING THE GROUND RAISED WITH REGARD TO CHARGING OF INTEREST U /S 234B PARTICULARLY IN VIEW OF THE FACT THAT THE APPELLANT HAS BEEN FAVOURED BY ISSUE OF REFUND VOUCHER WHILE PROCESSIN G THE RETURN OF INCOME U/S 143(1) OF THE I.T.ACT. 2. DURING HEARING OF THESE APPEALS WE HAVE HEARD S HRI S.S. DESHPANDE CA AND SMT. APARNA KARAN SR. DR. AT THE OUTSET MR. DESHPANDE DID NOT PRESS GROUND NOS. 1 2 AND 4. THE SAME ARE THEREFORE DISMISSED AS NOT PRESSED. 3. THE ONLY GROUND REMAINED FOR OUR ADJUDICATION PE RTAINS TO DISALLOWING OF THE CLAIM OF DEPRECIATION MADE ON SHUTTERING PLATES. THE CRUX OF ARGUMENTS IS THAT IDENTICALLY THE RATE OF DEPRECIATION AT 50% WAS AFFIRMED BY THE THE LEARNED COMMISSIONER OF INC OME TAX (APPEALS) FOR THE ASSESSMENT YEAR 1997-98 VIDE ORDER DATED 8. 8.2003 WHEREIN NO SECOND APPEAL WAS PREFERRED BY THE DEPARTMENT AND A S SUCH HAS BECOME AND IS OF BINDING NATURE. THIS FACTUAL MATRI X WAS NOT CONTROVERTED BY THE REVENUE. HOWEVER IT WAS CONTEN DED THAT EACH YEAR IS INDEPENDENT AND THE ASSESSEE ITSELF HAS CLAIMED IT AS CAPITAL IN NATURE. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON FILE. IT IS AN UNDISPUTED FAC T THAT THE ASSESSEE ITSELF 4 HAS CLAIMED THE DEPRECIATION ONLY AT THE RATE OF 50 % ON THE SHUTTERING AND IDENTICALLY FOR THE ASSESSMENT YEAR 1997-98 IT WAS ALLOWED BY THE REVENUE VIDE ORDER DATED 8.8.2003 AGAINST WHICH NO APPEAL HAS BEEN PREFERRED BY THE DEPARTMENT. EVEN OTHERWISE THE D ECISION IN THE CASE OF CIT V. MAHENDRA MILLS (243 ITR 56) (SC) SUPPORTS TH E CASE OF THE ASSESSEE TO THE EFFECT THAT IT IS AN OPTION WITH TH E ASSESSEE TO CLAIM DEPRECIATION I.E. IF LESSER CLAIM HAS BEEN MADE BY THE ASSESSEE IT CANNOT BE SAID THAT THE ASSESSEE IS NOT ENTITLED WH ICH OTHERWISE CAN BE CLAIMED OR THE ASSESSEE IS ENTITLED. EVEN OTHERWISE THE SHUTTERING MATERIAL IS HAVING A LIMITED AGE AND THE DEPRECIATI ON IS A MANDATORY ALLOWANCE WHICH CAN BE CLAIMED BY THE ASSESSEE. CON SEQUENTLY THIS GROUND OF THE ASSESSEE IS ALLOWED BEING REVENUE IN NATURE. EVEN OTHERWISE SHUTTERING MATERIAL IS HAVING A LIMITED LIFE. 5. IDENTICALLY GROUND NOS. 1 AND 2 IN ITA NO. 37/I ND/07 ARE DISMISSED AS NOT PRESSED. CHARGING OF INTEREST U/S 234B IS CO NSEQUENTIAL IN NATURE AND GROUND NO. 3 IS DECIDED IN FAVOUR OF THE ASSESS EE FOR THE REASONS MENTIONED ABOVE. LIKEWISE GROUND NOS. 2 AND 3 OF I TA NO. 38/IND/2007 WERE NOT PRESSED BY THE LD. COUNSEL FOR THE ASSESSE E BEING SMALLNESS OF AMOUNT INVOLVED THEREFORE BOTH THESE GROUNDS ARE DISMISSED AS NOT PRESSED. GROUND NO. 1 I.E. DEPRECIATION ON SHUTTERI NG PLATES IS COVERED BY THE AFORESAID DECISION I.E. GROUND NO. 3 OF ITA NO. 36/IND/2007 IN FAVOUR OF THE ASSESSEE. 5 6. FINALLY THESE APPEALS OF THE ASSESSEE ARE PARTL Y ALLOWED. ORDER PRONOUNCED IN OPEN COURT IN THE PRESENCE OF L EARNED REPRESENTATIVES OF BOTH THE SIDES AT THE CONCLUSION OF HEARING ON 12 TH APRIL 2010. SD SD (V.K. GUPTA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER APRIL 12 TH 2010 COPY TO: APPELLANT RESPONDENT CIT CIT(A) DR G UARD FILE *DBN/