KHORAKIWALA HOLDINGS & INV. P.LTD, MUMBAI v. ASST CIT RG 10(1), MUMBAI

ITA 7718/MUM/2011 | 2004-2005
Pronouncement Date: 14-10-2013 | Result: Partly Allowed

Appeal Details

RSA Number 771819914 RSA 2011
Assessee PAN AAACK1955D
Bench Mumbai
Appeal Number ITA 7718/MUM/2011
Duration Of Justice 1 year(s) 10 month(s) 29 day(s)
Appellant KHORAKIWALA HOLDINGS & INV. P.LTD, MUMBAI
Respondent ASST CIT RG 10(1), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 14-10-2013
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted A
Tribunal Order Date 14-10-2013
Date Of Final Hearing 22-08-2013
Next Hearing Date 22-08-2013
Assessment Year 2004-2005
Appeal Filed On 15-11-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH MUM BAI BEFORE SHRI D. MANMOHAN VP AND SHRI SANJAY ARORA AM I.T.A. NO. 7718/MUM/2011 ( / ASSESSMENT YEAR: 2004-05) KHORAKIWALA HOLDINGS & INVESTMENT PVT. LTD. WOCHARDT TOWERS BANDRA KURLA COMPLEX BANDRA (E) MUMBAI-400 051 VS. ASST. CIT 10(1) AAYAKAR BHAVAN MUMBAI-400 020 ! ' ./PAN/GIR NO. AAACK 1955 D ( !# /APPELLANT ) : ( $%!# / RESPONDENT ) !#& / APPELLANT BY : SHRI YOGESH A. THAR $%!#'& / RESPONDENT BY : SHRI S. K. MADHUK ( )*'+ / DATE OF HEARING : 22.08.2013 -./'+ / DATE OF PRONOUNCEMENT : 14.10.2013 0 O R D E R PER SANJAY ARORA A. M.: THIS IS AN APPEAL BY THE ASSESSEE CHALLENGING THE C ONFIRMATION OF THE PENALTY LEVIED U/S. 271(1)(C) OF THE INCOME TAX ACT 1961 ( THE ACT HEREINAFTER) IN THE SUM OF RS.9 33 422/- BY THE ASSESSING OFFICER (A.O.) VIDE HIS ORDER DATED 31.03.2011 FOR THE ASSESSMENT YEAR (A.Y.) 2004-05 BY THE COMMISSIONER OF INCOME TAX (APPEALS)-21 MUMBAI (CIT(A) FOR SHORT) VIDE HIS ORDER DATED 10 .10.2011. 2 ITA NO. 7718/MUM/2011 (A.Y. 2004-05) KHORAKIWALA HOLDINGS & INVESTMENT PVT. LTD. VS. ASS T. CIT 2.1 OPENING THE ARGUMENTS IT WAS EXPLAINED BY THE LD. AUTHORIZED REPRESENTATIVE (AR) THE ASSESSEES COUNSEL THAT THE PENALTY IN T HE INSTANT CASE IS IN RESPECT OF TWO DISALLOWANCES I.E. QUA REPAIR AND MAINTENANCE AND DEPRECIATION CLAIMED B Y THE ASSESSEE PER ITS RETURN FOR THE YEAR FILED ON 30.10.2004 AT RS.18 34 587/- AND RS.7 67 291/- RESPECTIVELY. THE SAID EXPENDITURE AS WELL AS THE D EPRECIATION IS IN RESPECT OF TWO BUILDINGS I.E. AT BHIWANDI MAHARASHTRA AND KODAI KANAL KARNATAKA. ON BEING ENQUIRED IN THE MATTER IT WAS EXPLAINED BY THE ASSESSEE IN THE ASSESSMENT PROCEEDINGS THAT THE TWO PROPERTIES WERE ON THE VERGE OF GETTING READY TO BE PUT TO USE. THE CONSTRUCTION HAD BEEN COMPLETED SINCE LONG I.E. ON 30.09.2002 FOR THE B HIWANDI BUILDING WHILE THE KODIAKANAL PROPERTY WAS IN EXISTENCE SINCE 31.03.19 99. THE EXPENDITURE HAD NOT BEEN CAPITALIZED AS IN TERMS OF THE RELEVANT ACCOUNTING STANDARD I.E. AS-10 THE EXPENDITURE SUBSEQUENT TO THE ACQUISITION OF THE FIXED ASSET SH OULD BE LOADED TO ITS COST ONLY IF IT INCREASES THE FUTURE BENEFITS FROM AN EXISTING ASSE T BEYOND ITS PREVIOUSLY ASSESSED STANDARD OF PERFORMANCE. AS THE EXPENDITURE WAS BEI NG INCURRED IN MAKING THE BUILDINGS READY TO BE PUT TO USE THE SAME WAS WRITTEN OFF IN ACCOUNTS. FURTHER THE BUILDINGS WERE INTENDED TO BE USED AS GUEST HOUSES. AS SUCH EVEN IF THERE WERE NO ACTUAL USER BEING COMPLETE THE DEPRECIATION THEREON WOULD BE EXIGIBL E AND STOOD ACCORDINGLY CLAIMED. THE HONBLE COURTS HAVE HELD THAT EVEN A PASSIVE US ER WOULD ENTITLE A CLAIM FOR DEPRECIATION. THE SAME DID NOT FIND ACCEPTANCE BY THE REVENUE IN WHOSE VIEW THE BUILDINGS WERE UNDER CONSTRUCTION AS AT THE RELEVAN T YEAR-END AND HAVING NOT BEEN PUT TO USE THERE WAS NO QUESTION OR OCCASION FOR INCURRIN G EXPENDITURE ON REPAIRS AND MAINTENANCE AND NEITHER WOULD THE CLAIM FOR DEPREC IATION ARISE . THE ASSESSEE DID NOT MOVE BEYOND THE FIRST APPELLATE STAGE ACCEPTING TH E DISALLOWANCES. HOWEVER THESE ARE THE PENALTY PROCEEDINGS AND THEREFORE SOMETHING M ORE THAN A MERE INABILITY TO PROVE THE CLAIM WOULD BE NECESSARY TO SUSTAIN THE LEVY OF THE PENALTY FOR CONCEALMENT OR FURNISHING INACCURATE PARTICULARS OF INCOME. IT IS DIFFICULT T O SEE IN THE INSTANT CASE AS TO WHAT IS THE CONCEALMENT OR INACCURATE FURNISHING OF PARTICULARS OF INCOME. EVEN IF THE EXPENDITURE IS HELD TO BE CAPITAL IN NATURE IT NEEDS TO BE APPREC IATED THAT THE QUESTION OF THE EXPENDITURE BEING CAPITAL OR REVENUE IS A DEBATABLE ONE AND WO ULD THEREFORE NOT LEAD TO LEVY OF 3 ITA NO. 7718/MUM/2011 (A.Y. 2004-05) KHORAKIWALA HOLDINGS & INVESTMENT PVT. LTD. VS. ASS T. CIT PENALTY WHICH HAS TO BE ON SOME DEFINITE FIRM BAS IS. IN THIS REGARD IT IS ALSO RELEVANT TO NOTE THAT THE TAX AUDITOR HAS CLEARLY INDICATED THA T NO CAPITAL EXPENDITURE HAS BEEN DEBITED TO THE PROFIT AND LOSS ACCOUNT; THE SAME MUST BE CO NSIDERED AS AN EXPERTS OPINION SO THAT THE ASSESSEE RELYING ON THE SAME CANNOT BE SUBJECT TO PENALTY. IN FACT SIMILAR CLAIMS FOR THE IMMEDIATELY PRECEDING YEAR I.E. A.Y. 2003-04 HAD BEEN ALLOWED IN ASSESSMENT U/S. 143(3) OF THE ACT WITHOUT MAKING ANY ADJUSTMENT/S ( PB PGS. 57 - 60 ). THE SAME ITSELF FORMS A REASONABLE CAUSE FOR THE ASSESSEE ENTERTAIN ING A BELIEF AS TO THE SAID EXPENDITURE BEING ALLOWABLE AND FOR WHICH HE WOULD TAKE US TO THE EXTRACTS OF THE BALANCE-SHEET AND THE PROFIT AND LOSS ACCOUNT FOR THAT YEAR (PB PGS.4 2-49 ). FURTHER NO DISALLOWANCE STOOD MADE IN THE ASSESSMENT UNDER THE VERIFICATION PROCE DURE U/S.143(3) FOR THE IMMEDIATELY SUCCEEDING YEAR I.E. A.Y. 2005-06 AS WOULD BE AP PARENT FROM THE ASSESSMENT ORDER DATED 27.12.2007 PLACING A COPY OF THE SAME ON REC ORD. ON BEING ENQUIRED IN RESPECT OF THE CLAIM FOR THE SAID YEAR HE WOULD SUBMIT THAT T HE SAME IS AT RS.19.08 LACS FURNISHING A COPY OF ITS DETAIL AS SUBMITTED DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS. THE CLAIM FOR REPAIRS AND MAINTENANCE HAS TO BE UNDERST OOD IN PERSPECTIVE INASMUCH AS THE WDV OF THE BUILDINGS AS AT THE YEAR-END IS AT RS.15 2.28 LACS (PB PG.20 ). ONLY BECAUSE SOME ADDITION (RS.12.99 LACS) STOOD MADE DURING THE LATTER PART OF THE YEAR UNDER REFERENCE WOULD NOT ITSELF LEAD TO THE INFERENCE O F THE SAID BUILDINGS BEING INCOMPLETE . ON BEING ENQUIRED BY THE BENCH AS TO WHAT IS THE EX PENDITURE ACTUALLY FOR I.E. IS IT TOWARD FURNISHING OF THE PREMISES AND WHETHER THE ASSESSEE HAD EXPLAINED THAT AT ANY STAGE I.E. EITHER DURING THE QUANTUM OR THE PENAL TY PROCEEDINGS HE WOULD TAKE US TO THE DETAIL OF SUCH EXPENDITURE AS SUBMITTED BEFORE THE FIRST APPELLATE AUTHORITY IN THE QUANTUM PROCEEDINGS EXTRACTED AT PARA 2.2 IN HIS ORDER WH ICH IS AS UNDER:- TELEPHONE CHARGES RS.4 980/- ELECTRICITY CHARGES RS.22 555/- GARDEN MAINTENANCE RS.1 65 949/- FURNITURE RS.7 18 737/- MAINTENANCE OF BUILDING RS.5 25 250/- TOTAL RS.14 37 471/- 4 ITA NO. 7718/MUM/2011 (A.Y. 2004-05) KHORAKIWALA HOLDINGS & INVESTMENT PVT. LTD. VS. ASS T. CIT THE ENTIRE BALANCE EXPENDITURE OF RS.3.98 LACS ON T HE REPAIR AND MAINTENANCE EXPENDITURE SAVE FOR RS. 7158/- IS ON THE BHIWAND I PROPERTY AS APPARENT FROM THE DETAIL OF THE TOTAL EXPENDITURE OF RS. 18.35 LACS (AT PB PG. 62 ). FURTHER ON BEING ASKED AS TO THE NATURE OF THE EXPENDITURE FOR RS.5.25 LACS SUPRA A S ALSO FOR RS. 3.98 LACS; THE DETAILS BEING GROSS AND NOT INDICATIVE OF THE NATURE OF THE EXPENDITURE CLAIMED HE WAS UNABLE TO PROVIDE ANY ANSWER STATING THAT IS ALL THE INFORMATION HE HAS EVEN AS THE ASSESSEE WAS IN THE PROCESS OF MAKING A GREEN-HOUSE THOUGH COULD N OT EITHER EXPLAIN OR DILATE THEREON . WITH REGARD TO THE CLAIM QUA EXPENDITURE ON FURNITURE (RS.7.19 LACS) HE WAS AG AIN UNABLE TO FURNISH ANY SATISFACTORY EXPLANATION INASMUCH AS THE SAID EXPENDITURE IS ADMITTEDLY ON FURNITURE. 2.2 THE LD. DR ON THE OTHER HAND WOULD PLACE RELI ANCE ON THE ORDERS BY THE AUTHORITIES BELOW. IT IS APPARENT THAT THE BUILDING S ARE NOT COMPLETE AS AT THE YEAR-END SO THAT THE QUESTION OF THE SAME BEING PUT TO USE OR F OR INCURRING EXPENDITURE ON THEIR REPAIR AND MAINTENANCE DOES NOT ARISE. THE ASSESSEES EXPL ANATIONS ARE COMPLETELY UNSATISFACTORY; THE SAME NOT EVEN REVEALING THE NAT URE OF THE EXPENDITURE STATED TO BE TOWARD REPAIR AND MAINTENANCE. HOW COULD IT BE WHEN THE BUILDINGS ARE INCOMPLETE ? 3. WE HAVE HEARD THE PARTIES AND PERUSED THE MATER IAL ON RECORD. 3.1 IT FIRSTLY NEEDS TO BE CLARIFIED THAT THERE ARE TWO BUILDINGS UNDER REFERENCE AND WHILE THE CLAIM IS BEING PREFERRED IN RESPECT OF BO TH THE BUILDINGS TOGETHER THE TWO WOULD HAVE TO BE CONSIDERED SEPARATELY AS THE QUESTION I S ESSENTIALLY ONE OF FACT/S AND WHICH COULD NOT BE AND ARE NOT THE SAME FOR BOTH THE BUIL DINGS. WITH REGARD TO THE KODAIKANAL BUILDING THE SAME STANDS CAPITALIZED IN THE FINANC IAL YEAR 1998-99. THE ASSESSEE HAS ACCORDINGLY CLAIMED AND ALSO BEEN ALLOWED EXPENDI TURE ON REPAIRS AND MAINTENANCE AT RS.1.47 LACS (ON BUILDING) AND RS.6.28 LACS (ON GAR DEN MAINTENANCE) QUA THE SAID BUILDING IN ITS ASSESSMENT FOR A.Y. 2003-04 (PB PGS .51-55 ). EVEN THE EXPENDITURE IN RESPECT OF THE SAID BUILDING FOR A.Y. 2005-06 SINC E ALLOWED IS IN THE NOMINAL SUM AS APPARENT FROM THE DETAIL OF RS.19.08 LACS FOR THAT YEAR AS SUBMITTED DURING HEARING ON BEING CALLED FOR BY THE BENCH. AS SUCH WE FIND THE ASSESSEE TO HAVE A VALID BASIS OR AT 5 ITA NO. 7718/MUM/2011 (A.Y. 2004-05) KHORAKIWALA HOLDINGS & INVESTMENT PVT. LTD. VS. ASS T. CIT LEAST A PLAUSIBLE EXPLANATION FOR THE CLAIM OF EXPE NDITURE ON REPAIR AND MAINTENANCE AS WELL AS DEPRECIATION IN RESPECT OF THE SAID BUILDIN G WHICH WOULD BE SEGREGATED ON THE BASIS OF THE MATERIAL ON RECORD. 3.2 COMING TO THE BHIWANDI PROPERTY THE SAME IS ST ATED TO HAVE BEEN COMPLETED ON 30.09.2002 ON THE BASIS OF A CERTIFICATE FROM THE ARCHITECT D ATED 30.12.2002 (PB PG. 61 ). OUR FIRST OBSERVATION IN THE MATTER IS THAT THE SAM E IS CONTRADICTORY TO THE ASSESSEES OWN AUDITED ACCOUNTS FOR THE CURRENT YEAR (PLACED AT PB PGS.1-19) ON WHICH IT PLACES RELIANCE WHICH REFLECT AN ADDITION OF RS.12.99 LACS DURING T HE SECOND HALF OF THE YEAR (PB PGS.10 20). IN FACT EVEN DURING THE HEARING THE LD. AR O N BEING QUESTIONED ON THE BASIS OF THE COMPLETION CERTIFICATE COULD NOT FURNISH ANY SATIS FACTORY ANSWER. FURTHER EVEN ASSUMING THAT THE SAID BUILDING STANDS COMPLETED DURING THE SECOND HALF OF THE YEAR I.E. BY 31.03.2004 THE YEAR-END HOW COULD THE SAME LEAD TO A CONCURRENT CLAIM FOR H EAVY REPAIRS AND MAINTENANCE FOR THE F.Y. 2003-04 ? AND FURTHER EVEN WITHOUT HAVING BEEN PUT TO USE AS ADMITTED BY THE ASSESSEE DURING THE ASSE SSMENT PROCEEDINGS STATING THE SAME TO IT BEING ON THE VERGE OF BEING MADE READY TO BE PUT TO USE. THIS IS PRECISELY THE REVENUES CASE AND WHICH HAS NOT BEEN SATISFACTORI LY ANSWERED OR EXPLAINED AT ANY STAGE MUCH LESS WITH REFERENCE TO ANY EVIDENCES. FURTHER THE SAID EXPENDITURE CONTINUES AND IN EQUAL MEASURE FOR THE FOLLOWING YEAR AS WELL S O THAT IT IS EQUALLY INEXPLICABLE AS TO HOW EXPENDITURE IN SUCH SUM FOLLOWS IMMEDIATELY AFT ER THE COMPLETION OF THE BUILDING PUTTING A QUESTION MARK ON THE ISSUE OF ITS ACTUAL COMPLETION EVEN BY 31/3/2004 . THE ASSESSEES CONTENTION OF THE CLAIM BEING ALLOWE D FOR THE PRECEDING YEAR FORMING A REASONABLE CAUSE TOWARD THE SAME FOR THE CURRENT YEAR EVEN AS POINTED OUT DURING HEARING IS ALSO MISLEADING INASMUCH AS THE ASSESSMENT FOR AY 2003-04 WAS COMPLETED ON 20/12/2005 (PB PG. 59 ) WHILE THE RETURN FOR THE CURRENT YEAR AND THERE BY THE IMPUGNED CLAIM STANDS PREFERRED ON 30/10/2004 ( PB PG. 29 ). IN FACT AS APPARENT AND AS ALSO OBSERVED EARLIER THE EXPENDITURE FOR THE S AID YEAR IS QUA THE KODAIKANAL PROPERTY (PB PGS. 52 54). THERE IS ALSO NO QUESTION OF PAS SIVE USER WHEN THE BUILDING IS ITSELF INCOMPLETE AND BEING MADE READY FOR BEING PUT TO U SE. AGAIN REFERENCE TO AS 10 IS ALSO 6 ITA NO. 7718/MUM/2011 (A.Y. 2004-05) KHORAKIWALA HOLDINGS & INVESTMENT PVT. LTD. VS. ASS T. CIT INAPPOSITE AS THE ASSESSEE HAS ITSELF CAPITALIZED E XPENDITURE ON THE BUILDING IN ITS BOOKS AND WHICH IS CONSISTENT WITH ITS EXPLANATION IN ASS ESSMENT PROCEEDINGS OF THE BUILDINGS BEING MADE READY FOR USE. AS IT THEREFORE APPEARS TO US THE SAID BUILDING IS IN THE PROCESS OF COMPLETION WORK FOR WHICH HAS BEEN CONTRACTED AND IN ANY CASE WAS IN PROGRESS. THE CONSTRUCTION OR THE ACQUISITION OF AN ASSET CANNOT BE SAID TO BE CO MPLETE PRIOR TO IT ATTAINING A WORKING CONDITION WHICH HAS TO BE RECKONED WITH REFERENCE TO ITS INTENDED USER AS FOR THE PURPOSE OF GUEST HOUSE IN THE INSTANT CASE. IT IS THEREFOR E NOT THE CASE AS HAS BEEN SOUGHT TO BE PROJECTED BY THE ASSESSE THAT THE REVENUE HAS NOT ACCEPTED ITS CLAIMS IN THE ABSENCE OF ACTUAL USER EVEN THOUGH THE BUILDING IS READY FOR USE SO THAT IT IS A CASE OF PASSIVE USER. WHY THE DETAIL OF THE EXPENDITURE ITSELF REVEALS A GOOD PART OF THE EXPENDITURE TO BE ON FURNITURE (RS.7.19 LACS) AND WHICH HAS ALSO BEEN F ACTORED INTO IN ARRIVING AT OUR FOREGOING INFERENTIAL FINDING OF THE BUILDING BEING READIED FOR ITS INTENDED USER AS ADMITTED IN THE QUANTUM PROCEEDINGS . FURTHER ON WHEN THE ASSESSEE ITSELF HAS NOT FURNISHED THE EXACT PROPER DETAILS IT IS IMPERMIS SIBLE FOR IT TO RAISE THE BOGEY OF THE CLAIMS BEING IN ANY CASE DEBATABLE WHICH ASPECT CO ULD ONLY BE DECIDED IN THE LIGHT OF THE OBTAINING FACTS I.E. WHETHER THE SAME GIVE RISE T O TWO POSSIBLE VIEWS OR NOT. TO SAY THAT THE ISSUE IS DEBATABLE SANS ANY DETAILS OF THE EXPENDITURE IS SELF-DEFEATING O F THE ASSESSEES CASE; RATHER A FALSE STATEMENT. ITS ARG UMENT OF RELYING ON AN EXPERTS OPINION WOULD ALSO IN VIEW OF THE SAME BE OF NO CONSEQUEN CE. 3.3 SO HOWEVER AS IT TRANSPIRED DURING THE COURSE OF HEARING THE ASSESSEE IS IN PROCESS OF BUILDING A GREEN-HOUSE AND HAS ALSO APPARENTLY INCURRED EXPENDITURE ON GARDEN MAINTENANCE ELECTRICITY TELEPHONE ETC. (RS.1 93 484/-). THE SAID EXPENDITURE COULD DEPENDING ON THE NATURE OF THE WORK BEING CARRIED O N BE OF REVENUE NATURE. WITH REGARD TO THE GREEN-HOUSE THOUGH THERE IS NO EXPLANATION WITH REGARD TO IT BEFORE THE AUTHORITIES BELOW THE SAME IS MANIFEST FROM THE RECORD AS FOR EXAMPLE A BILL DATED 18.04.2003 FOR THE SUPPLY & INSTALLATION OF DOUBLE DOOR FOR THE GR EENHOUSE (PB PG.64 ) BY ONE M/S. SRIROZ PVT. LTD. THE LD. AR ON BEING QUESTIONED IN THIS RESPECT OR EVEN AS TO THE NATURE 7 ITA NO. 7718/MUM/2011 (A.Y. 2004-05) KHORAKIWALA HOLDINGS & INVESTMENT PVT. LTD. VS. ASS T. CIT OF THE SAID HOUSE WAS UNABLE TO PROVIDE ANY PROPER ANSWER. WE ARE THEREFORE NOT IN A POSITION TO ISSUE ANY FINDING/S IN THIS RESPECT WH ICH WOULD BE EVEN OTHERWISE INAPPROPRIATE IN THE ABSENCE OF THE SAID MATTER HAV ING BEEN SET UP BEFORE AND EXAMINED BY THE AUTHORITIES BELOW. IT MAY WELL BE THAT THE G REEN-HOUSE WHICH IS STATED TO BE NOT REPRESENTING A CAPITAL EXPENDITURE IS SO AND TO T HAT EXTENT THEREFORE ITS CLAIM FOR THE SAME AS REVENUE EXPENDITURE IS NOT INCORRECT EVEN THOUGH THE SAME STANDS DISALLOWED. 3.4 UNDER THE GIVEN FACTS AND CIRCUMSTANCES THEREF ORE WE ONLY CONSIDER IT FIT AND PROPER TO REMIT THE MATTER WITH RESPECT TO THE CLAI M QUA BHIWANDI PROPERTY BACK TO THE FILE OF THE LD. CIT(A) TO ALLOW THE ASSESSEE AN OP PORTUNITY TO SUBSTANTIATE ITS CASE IN RESPECT OF COST INCURRED TOWARD THE GREENHOUSE IF ANY INCLUDED THEREIN AS WELL AS OF THE SAME AS NOT REPRESENTING A CAPITAL EXPENDITURE. THE LD. CIT(A) SHALL DECIDE THE ISSUE IN ACCORDANCE WITH LAW ISSUING DEFINITE FINDINGS OF F ACT AND AFTER HEARING BOTH THE PARTIES. NEEDLESS TO ADD HE SHALL ALLOW THE ASSESSING AUTHO RITY AN OPPORTUNITY TO EXAMINE THE MATERIAL ON WHICH THE ASSESSEE MAY RELY IN SUBSTANT IATION OF ITS CASE. FOR THE BALANCE EXPENDITURE QUA THE BHIWANDI PROPERTY WE CONFIRM THE LEVY OF PENA LTY U/S. 271(1)(C) SAVE QUA EXPENDITURE FOR RS.1.93 LACS SUPRA FOR WHICH IT HA S A PLAUSIBLE EXPLANATION; THE ASSESSEE HAVING COMPLETELY FAILED TO EXPLAIN THE SA ME AS REPRESENTING REPAIR AND MAINTENANCE OF BUILDING; RATHER ITS EXPLANATION HA VING BEEN FOUND AS CONTRARY TO FACTS AS WELL AS INCONSISTENT WITH THE MATERIAL ON RECORD. ITS CLAIM FOR DEPRECIATION ON THE BHIWANDI BUILDING WOULD ALSO FOLLOW SUIT INASMUCH AS THERE HAS BEEN NO EXPLANATION MUCH LES S ITS SUBSTANTIATION AS TO THE USER OF THE BHIWANDI PROPERTY OR EVEN OF ITS BEING READY FO R ITS INTENDED USER. FINALLY THERE IS NO CASE FOR THE APPLICATION OF TH E DECISION BY THE APEX COURT IN THE CASE OF CIT VS. RELIANCE PETROPRODUCTS (P.) LTD. [2010] 322 ITR 158 (SC) THE MATTER AS AFORE-STATED BEING PURELY FACTUAL WITH THE ASSESS EE BEING UNABLE TO MAKE OUT ANY CASE. WE DECIDE ACCORDINGLY. 8 ITA NO. 7718/MUM/2011 (A.Y. 2004-05) KHORAKIWALA HOLDINGS & INVESTMENT PVT. LTD. VS. ASS T. CIT 4. IN THE RESULT THE ASSESSEES APPEAL IS PARTLY A LLOWED AND PARTLY ALLOWED FOR STATISTICAL PURPOSES. 1/+23451+' 60) 7 +89' :;6< 60) 7 +'+= ORDER PRONOUNCED IN THE OPEN COURT ON OCTOBER 14 2 013 SD/- SD/- (D. MANMOHAN) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER ( >* MUMBAI; ? DATED : 14.10.2013 )3 ROSHANI SR. PS ! ' #$%& ' &$ COPY OF THE ORDER FORWARDED TO : 1. !# / THE APPELLANT 2. $%!# / THE RESPONDENT 3. ( @+ A B / THE CIT(A) 4. ( @+ / CIT CONCERNED 5. C)DE$3+3F4 F4/ ( >* / DR ITAT MUMBAI 6. E5G* GUARD FILE ! ( / BY ORDER )/(* + (DY./ASSTT. REGISTRAR) ( >* / ITAT MUMBAI