DCIT 3(2), v. LAFARGE INDIA P. LTD,

MA 151/MUM/2010 | 2003-2004
Pronouncement Date: 14-05-2010 | Result: Allowed

Appeal Details

RSA Number 15119924 RSA 2010
Bench Mumbai
Appeal Number MA 151/MUM/2010
Duration Of Justice 2 month(s) 6 day(s)
Appellant DCIT 3(2),
Respondent LAFARGE INDIA P. LTD,
Appeal Type Miscellaneous Application
Pronouncement Date 14-05-2010
Appeal Filed By Department
Order Result Allowed
Bench Allotted H
Tribunal Order Date 14-05-2010
Assessment Year 2003-2004
Appeal Filed On 08-03-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H MUMBAI BEFORE SHRI D. MANMOHAN (VICE-PRESIDENT) & SHRI R.S. SYAL (ACCOUNTANT MEMBER) M.A.NO.151/MUM/2010 (ARISING OUT OF I.T.ANO.3133/MUM/2008) (A.Y. 2003-04) DY.COMMR.OF INCOME-TAX-3(2) R.NO.608/674 AAYKAR BHAVAN M.K.ROAD MUMBAI-400 020. VS. M/S. LAFARGE INDIA P.LTD. BHAKTAVAR 14TH FLOOR 229 NARIMAN POINT MUMBAI-400 021. APPLICANT BY RESPONDENT APPLICANT BY SHR I MOHD. USMAN RESPONDENT BY SHRI N IRANJAN GOVINDEKAR O R D E R PER D. MANMOHAN VICE-PRESIDENT: BY THIS APPLICATION THE REVENUE SEEKS RECALL OF TH E ORDER DATED 07-10- 2009 ON THE FOLLOWING GROUNDS : 2. THE REVENUE HAD FILED APPEAL RELATING TO A .Y. 2003-04 ON THE FOLLOWING GROUNDS : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW THE LD. CIT(A) ERRED IN HOLDING THAT THE ASSESSEE W AS ENTITLED TO CLAIM DEPRECIATION WITH REFERENCE TO THE COST OF AC QUISITION OF CEMENT UNIT PURCHASED FROM RAYMONDS WITHOUT APPRECI ATING THE PROVISION OF EXPLANATION 3 TO SEC. 43(1) OF THE I.T . ACT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD. CIT(A) ERRED IN HOLDING THAT THE ASSESSEE W AS ENTITLED TO CLAIM DEPRECIATION OF RS.86 94 33 733/- WITH REFERE NCE TO THE COST OF ACQUISITION OF CEMENT UNITS PURCHASED FROM TISCO WITHOUT APPRECIATING THAT THE AMOUNT PAID OVER AND ABOVE THE WDV WAS NOTHING BUT THE PAYMENT OF GOODWILL AND THA T THE PROVISION OF EXPLANATION-3 TO SECTION 43(1) OF THE I.T. ACT ARE DULY APPLICABLE IN THIS CASE. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LD. CIT(A) ERRED IN HOLDING THAT THE ASSESSEE WAS E NTITLED TO CLAIM DEPRECIATION OF RS.25 91 36 719/- WITH REFERE NCE TO THE COST OF ACQUISITION OF INTANGIBLE ASSET PURCHASED F ROM RAYMONDS MA 151/M/10 LAFARGE INDIA P.LTD. 2 WITHOUT APPRECIATING THE FACT THAT THE EXCESS AMOUN T PAID IS NOTHING BUT THE GOODWILL. 3. HOWEVER THE HONBLE ITAT VIDE ITS ABOVE RE FERRED ORDER HAS DECIDED THE ISSUE IN RESPECT OF THE CLAIM OF DEPREC IATION OF RS.25 91 36 719/-. THE ORDER OF THE I.T.A.T. IS SI LENT ON THE OTHER ISSUES. MOREOVER IN THE ABOVE SAID ORDER THE HONBLE I.T.A .T. HAD DIRECTED THE A.O. TO RECTIFY THE ASSESSMENT ORDER WITH RESPECT T O THE ORDER OF THE HONBLE I.T.A.T. FOR A.Y. 2000-01 AND 2001-02 WHICH ARE YET TO BE PASSED. IN VIEW OF THE ABOVE IT IS MOST HUMBLY PRAYED THAT THE HONBLE TRIBUNAL MAY BE PLEASED TO MAKE NECESSARY ALTERATIO NS IN THE ORDER AND OBLIGE. 2. WE HAVE HEARD THE LD. D.R. AS WELL AS THE LD. CO UNSEL FOR THE ASSESSEE IN THIS REGARD. IN OUR CONSIDERED OPINION THE IMPUGNE D ORDER OF THE TRIBUNAL SUFFERS FROM A MISTAKE APPARENT FROM RECORD AND DESERVES TO BE RECALLED IN VIEW OF THE FACT THAT A SPECIFIC GROUND URGED BY THE REVENUE WITH REGARD TO CLAIM OF DEPRECIATION OF RS.86 94 33 733/- WAS OMITTED TO B E CONSIDERED AND AS REGARDS THE CLAIM OF DEPRECIATION OF RS.25.91 CRORES DESPIT E A PLEA BY THE PARTIES THAT EARLIER YEARS APPEALS ON IDENTICAL ISSUE WERE APPE NDING BEFORE THE TRIBUNAL THE TRIBUNAL ERRED IN DIRECTING THE AO TO PASS RECTIFIC ATORY ORDER IN CONSEQUENCE OF THE ORDER OF THE TRIBUNAL FOR THE EARLIER YEARS WH ICH IS YET TO BE PRONOUNCED. TILL DATE APPEALS PENDING BEFORE THE TRIBUNAL IN RESPEC T OF EARLIER YEARS APPEAR TO HAVE NOT BEEN DISPOSED OF. UNDER THESE CIRCUMSTANCE S IN THE INTERESTS OF SUBSTANTIAL JUSTICE AND AS AGREED TO BY BOTH THE P ARTIES WE RECALL THE ORDER DATED 07-10-2009 AND DIRECT THE REGISTRY TO POST TH E APPEAL FOR FRESH HEARING ON 12 TH JULY 2010. 3. IN THE RESULT THE MISC. APPLICATION FILED BY TH E ASSESSEE IS ALLOWED. MA 151/M/10 LAFARGE INDIA P.LTD. 3 ORDER PRONOUNCED ON THE 14TH DAY OF MAY 2010. SD/- SD/- (R.S. SYAL) ( D. MANMONAH) ACCOUNTANT MEMBER VICE-PRESID ENT MUMBAI: 14TH MAY 2010 NG: COPY TO : 1. ASSESSEE. 2.DEPARTMENT. 3 CIT(A)-III MUMBAI. 4 CIT-3 MUMBAI. 5.DR H BENCH MUMBAI. 6. MASTER FILE. (TRUE COPY) BY ORDER ASST.REGISTRAR ITAT MUMBAI. MA 151/M/10 LAFARGE INDIA P.LTD. 4 DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 7-5-2010 SR.PS/ 2 DRAFT PLACED BEFORE AUTHOR 11-5-2010 SR.PS/ 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/ 6. KEPT FOR PRONOUNCEMENT ON SR.PS/ 7. FILE SENT TO THE BENCH CLERK SR.PS/ 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER