M/s. Agriculture Produce Marketing Commitee, (MNI), New Delhi v. ACIT, New Delhi

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH A : NEW DELHI) BEFORE SHRI R.P. TOLANI JUDICIAL MEMBER AND SHRI A.K. GARODIA ACCOUNTANT MEMBER MA NOS.98 & 99/DEL/2010 (IN ITA NOS.3711 & 2692/DEL./2009) (ASSESSMENT YEARS : 2003-04 & 2005-06) M/S. AGRICULTURAL PRODUCE MARKETING COMMITTEE VS. ADDL.CIT (MNI) AZADPUR OFFICE COMPLEX PHASE II RANGE 19 (1) SARAI PIPALTHALA AZADPUR DELHI. (APPLICANT) (RESPONDENT) APPLICANT/ASSESSEE BY : MRS. ABHINASH AHLAWAT ADV OCATE REVENUE BY : SHRI N.K. CHAND DR ORDER PER R.P. TOLANI JUDICIAL MEMBER : THESE ARE TWO MISC. APPLICATIONS FILED BY THE ASSES SEE AGAINST THE IMPUGNED ORDER OF ITAT DATED 22.12.2009. IT IS CONT ENDED IN THE APPLICATION THAT THE EXPENSES CLAIMED AS REVENUE HAVE BEEN PART LY TREATED BY THE CIT (A) TO BE CAPITAL IN NATURE AND THIS ORDER HAS BEEN CON FIRMED BY THE ITAT. IT IS PLEADED THAT THE BENCH HAS NOT GIVEN ANY DIRECTION TO ALLOW DEPRECIATION ON THE CAPITALIZED EXPENSES. IN THE MISC. APPLICATION FILED BY THE ASSESSEE THOUGH VARIOUS ISSUES HAVE BEEN TAKEN IN THE APPLICATIONS THEY CAN BE SUMMED UP IN TWO PARAGRAPHS WHICH ARE REPRODUCED : 6. THAT THIS HON'BLE BENCH THEREFORE WAS OF THE OPINION THAT THE ORDER OF THE CIT (APPEALS) DOES NOT REQUIR E ANY MA NOS.98 & 99/DEL/2010 (IN ITA NOS.3711 & 2692/DEL./2009) 2 INTERFERENCE. IT WAS HOWEVER SUBMITTED TO THE HON' BLE COURT THAT IN CASE EXPENSES WHICH ARE TREATED AS CAPITAL ARE ACCEPTED BY THIS BENCH THEN THE COURT SHOULD ALSO DIRECT THE AUTHORITIES TO ALLOW THE DEPRECIATION ON THE SAME IN ACCORDANCE WITH LAW. 7. IT IS SUBMITTED THAT WHEN THE ORDER OF THIS HON' BLE COURT WAS RECEIVED ON 4.2.2010 IT WAS FOUND THAT THIS SPE CIFIC DIRECTION HAS NOT BEEN GIVEN TO THE AUTHORITIES AND IN THE ABSENCE OF THE DIRECTION THE AUTHORITY MAY NOT PROC EED TO ALLOW DEPRECIATION ON THE CAPITAL EXPENDITURE WHICH MAY A GAIN BECAME A MATTER OF DISPUTE. IN ORDER TO AVOID ANY FURTHER LITIGATION IN THE MATTER IT IS SUBMITTED THAT THIS HON'BLE COURT MAY PLEASE ALSO DIRECT THE AUTHORITIES TO ALLOW DEP RECIATION ON THE CAPITAL EXPENDITURE FOR THE ASSESSMENT YEAR 200 3-04 IN ACCORDANCE WITH LAW. LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE CON TENTS OF MISC. APPLICATIONS AND FURTHER PLEADED THAT TO AVOID FURTHER LITIGATIO N THE LOWER AUTHORITIES MAY BE DIRECTED TO ALLOW CLAIM OF DEPRECIATION. 2. LEARNED DR ON THE OTHER HAND OPPOSED THE PETIT ION AND CONTENDS THAT NEITHER BEFORE CIT (A) NOR BEFORE ITAT ANY GROUND F OR ALLOWING SUCH DEPRECIATION ON CAPITALIZED EXPENSES WAS RAISED BY THE ASSESSEE. NO SUCH ADDITIONAL GROUND HAS ALSO BEEN RAISED BEFORE ITAT. THEREFORE THE CLAIM OF THE ASSESSEE DOES NOT ARISE OUT OF THE IMPUGNED ORD ERS AND THE MA IS BEYOND THE SCOPE OF RECTIFICATION AS THERE IS NO MISTAKE A PPARENT FROM THE RECORD. BESIDES EACH AND EVERY CAPITALIZED ITEM OF EXPENSES CANNOT BE A DEPRECIABLE ASSET THEREFORE THE ASCERTAINMENT OF DEPRECIATION WILL REQUIRE FURTHER ENQUIRY ON FACTS AND ARGUMENTS. IT WAS CONTENDED THAT THE ALLOWING OF MA WOULD AMOUNT TO REVIEW OF THE ORDER. MA NOS.98 & 99/DEL/2010 (IN ITA NOS.3711 & 2692/DEL./2009) 3 3. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. WE ARE SATISFIED WITH THE SUBMISSIONS M ADE BY THE LEARNED DR. AS THIS GROUND OF ALLOWING OF DEPRECIATION WAS NOT TAKEN EITHER BEFORE CIT (A) OR ITAT AND ALSO NO SUCH ADDITIONAL GROUND RAIS ED BEFORE ITAT. THEREFORE THE CLAIM OF THE ASSESSEE DOES NOT ARISE FROM THE IMPUGNED ORDER AND THE M.A. IS BEYOND THE SCOPE OF RECTIFICATION A S THERE IS NO MISTAKE APPARENT FROM THE RECORD. BESIDES SUCH PLEA REQU IRES FURTHER ENQUIRY OF FACTS. WE THEREFORE FIND THAT THE MISC. APPLICAT ION AMOUNTS TO REVIEW THE IMPUGNED ORDER OF THE ITAT WHICH IS OUTSIDE THE PU RVIEW OF SECTION 254(2). HENCE THE MISC. APPLICATIONS ARE DISMISSED. 4. IN THE RESULT THE MISC. APPLICATIONS FILED BY T HE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THIS 30 TH DAY OF APRIL 2010 AFTER THE CONCLUSION OF THE HEARING. SD/- SD/- (A.K. GARODIA) (R.P. TOLANI) ACCOUNTANT MEMBER JUDICIAL MEMBER TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-II DEHRADUN. 5.CIT(ITAT) NEW DELHI. AR ITAT NEW DELHI.