SKYLARK VIDEO VISION, MUMBAI v. ITO 24(30(3), MUMBAI

ITA 6248/MUM/2009 | 2005-2006
Pronouncement Date: 22-07-2011 | Result: Partly Allowed

Appeal Details

RSA Number 624819914 RSA 2009
Assessee PAN AACFS4308R
Bench Mumbai
Appeal Number ITA 6248/MUM/2009
Duration Of Justice 1 year(s) 7 month(s) 19 day(s)
Appellant SKYLARK VIDEO VISION, MUMBAI
Respondent ITO 24(30(3), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 22-07-2011
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted H
Tribunal Order Date 22-07-2011
Date Of Final Hearing 12-07-2011
Next Hearing Date 12-07-2011
Assessment Year 2005-2006
Appeal Filed On 03-12-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H MUMBAI BEFORE SHRI P.M.JAGTAP ACCOUNTANT MEMBER & SHRI R.S. PADVEKAR JUDICIAL MEMBER. I.T.A. NO. 6248/MUM/2009. ASSESS MENT YEAR : 2005-06. SKYLARK VIDEO VISION THE INCOME-TAX OFFICER 12 SIRAJ MANSION 5 TH ROAD VS. 24(3)(3) MUMBAI. LOKMANYA TILAK NAGAR GOREGAON (WEST) MUMBAI 400062. PANAACFS4308R. APPELLANT. RESPONDENT. APPELLANT BY : MISS AARTI SATHE. RESPO NDENT BY : SHRI BALKRISHNA MENON. O R D E R. PER P.M. JAGTAP A.M. : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LEARNED CIT(APPEALS)-XXIV MUMBAI DATED 29-01-2009 AND THE GRIEVANCE OF THE ASSESSEE IS PROJECTED IN THE FOLLOWING GROUNDS RAISED THEREI N : 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-XX IV MUMBAI ERRED IN NOT APPRECIATING THAT THE LCD DATA PROJECT OR IS A PART OF COMPUTER AND ENTITLED TO A RATE OF DEPRECIATION AT THE RATE OF 60% AS PER THE SCHEDULE OF OLD APPENDIX-I OF THE INCOME-TAX RU LES 1962 RELEVANT TO THE PRESENT ASSESSMENT YEAR. 2 ITA NO.6248/MUM/2009 ASSESSMENT YEAR : 2005-06 2. THE CIT(A) ERRED IN UPHOLDING THE ORDER OF THE ASSE SSING OFFICER WITHOUT APPRECIATING THE FACTS OF THE PRESENT CASE AND IN R EJECTING THE RATE OF DEPRECIATION AS CLAIMED BY THE APPELLANT. 3. THE CIT(A) ERRED IN DISALLOWING THE EXPENSES OF RS. 83 605/- (RUPEES EIGHTY THREE THOUSAND SIX HUNDRED FIVE ONLY) AS CON FIRMED BY THE ASSESSING OFFICER. 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. AS REGARDS THE COMMON ISSUE RAI SED IN GROUND NO. 1 AND 2 RELATING TO ASSESSEES CLAIM FOR HIGHER DEPRECIATIO N ON LCD DATA PROJECTOR TREATING THE SAME AS COMPUTER IT IS OBSERVED THAT THE SPECI AL BENCH OF THIS TRIBUNAL IN THE CASE OF DCIT VS. DATA CRAFT INDIA LTD. REPORTED IN 133 TTJ (BOM.) 377 HAS LAID DOWN CERTAIN GUIDE LINES FOR ASCERTAINING THE EXACT RATE OF DEPRECIATION ALLOWABLE ON THE COMPUTER PERIPHERALS AND OTHER ACCESSORIES. AT THE TIME OF HEARING BEFORE US THE LEARNED REPRESENTATIVES OF BOTH THE SIDES H AVE AGREED THAT THE ISSUE INVOLVED IN THIS APPEAL MAY BE RESTORED TO THE FILE OF THE A O FOR FRESH ADJUDICATION IN THE LIGHT OF THE SAID GUIDELINES LAID DOWN BY THE HONB LE SPECIAL BENCH IN THE CASE DATA CRAFT INDIA LTD. (SUPRA). ACCORDINGLY WE SET A SIDE THE IMPUGNED ORDER OF THE LEARNED CIT(APPEALS) ON THIS ISSUE AND RESTORE THE MATTER TO THE FILE OF THE AO WITH A DIRECTION TO DECIDE THE SAME AFRESH APPLYING THE GUIDELINES LAID DOWN BY THE SPECIAL BENCH OF ITAT IN THE CASE OF DATA CRAFT IN DIA LTD. (SUPRA). 3. GROUND NO. 1 AND 2 OF THE ASSESSEES APPEAL ARE ACCORDINGLY TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 4. AS REGARDS THE OTHER ISSUE RAISED BY THE ASSESSE E IN GROUND NO.3 RELATING TO DISALLOWANCE OF EXPENSES AMOUNTING TO RS.83 605/- IT IS OBSERVED THAT 20% OF THE TOTAL EXPENSES CLAIMED BY THE ASSESSEE ON MOTOR CAR AND TELEPHONE WERE DISALLOWED 3 ITA NO.6248/MUM/2009 ASSESSMENT YEAR : 2005-06 BY THE AO ON ACCOUNT OF PERSONAL USE OF MOTOR CARS AND TELEPHONE BY ITS PARTNERS. THE LEARNED CIT(APPEALS) CONFIRMED THE SAID DISALLO WANCE OBSERVING THAT IN THE ABSENCE OF ANY RECORD MAINTAINED BY THE ASSESSEE IN THE FORM OF LOG BOOK FOR THE MOTOR CAR AND CALL REGISTER FOR TELEPHONE PERSONAL USE OF CAR AND TELEPHONE OF THE ASSESSEE FIRM BY ITS PARTNERS COULD NOT BE RULED OU T. AT THE TIME OF HEARING BEFORE US THE ONLY CONTENTION RAISED BY THE LEARNED COUNS EL FOR THE ASSESSEE IS THAT THE DISALLOWANCE OF 20% MADE BY THE AO AND CONFIRMED BY THE LEARNED CIT(APPEALS) OUT OF MOTOR CAR AND TELEPHONE EXPENSES IS ON THE H IGHER SIDE AND THE SAME MAY BE RESTRICTED TO THE REASONABLE EXTENT. AFTER HAVING C ONSIDERED ALL THE FACTS OF THE CASE WE ARE OF THE VIEW THAT IT WOULD BE FAIR AND REASON ABLE TO RESTRICT THE DISALLOWANCE ON THIS ISSUE TO 1/6 TH OF THE TOTAL MOTOR CAR AND TELEPHONE EXPENSES CLAI MED BY THE ASSESSEE. THE IMPUGNED ORDER OF THE LEARNED CIT(AP PEALS) ON THIS ISSUE TO THAT EXTENT IS MODIFIED AND THE AO IS DIRECTED TO RECOMP UTE THE DISALLOWANCE OUT OF MOTOR CAR AND TELEPHONE EXPENSES ACCORDINGLY. 5. GROUND NO. 3 IS THUS PARTLY ALLOWED. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. . ORDER PRONOUNCED ON THIS 22 ND DAY OF JULY 2011. SD/- SD/- (R.S. PADVEKAR) (P.M. JAGTAP) JUDICIAL MEMBER A CCOUNTANT MEMBER MUMBAI DATED: 22 ND JULY 2011. WAKODE 4 ITA NO.6248/MUM/2009 ASSESSMENT YEAR : 2005-06 COPY TO : 1. APPELLANT 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR H-BENCH. (TRUE COPY ) BY ORD ER ASSTT. R EGISTRAR ITAT MUMBAI BEN CHES MUMBA I.