GOLDEN CROSS PHARMA P.LTD, MUMBAI V. ACIT CIR 6(3), MUMBAI

CO 114/MUM/2011

• Counselvise Citation: [2015] 123 COUNSELVISE.COM (IT) 0257 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 5 month(s) 14 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 02-01-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 20-11-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 19-07-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation
• Section: 263; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH G, MUMBAI , ,, , BEFORE SHRI R.C. SHARMA, ACCOUNTANT MEMBER AND SHRI VIVEK VARMA, JUDICIAL MEMBER : : : : 114 / // / / // / 2011 ! A.Y. 2007-2008 CROSS OBJECTION : 114/MUM/2011 ARISING OUT OF ITA NO. 5912/MUM/2010, AY 2007-08 GOLDEN CROSS PHARMA PVT LTD, 12, GUNBOW STREET, HORNBY VIEW BLDG., FORT, MUMBAI -400 001 '# $ %.: PAN: AABCG 0541 J VS THE ACIT -6(3), ROOM NO. 522, 5 TH FLOOR, AAYAKAR BHAVAN, M K ROAD, MUMBAI -400 020 #' (APPELLANT) #' (RESPONDENT) CROSS OBJECTOR BY : SHRI V MOHAN RESPONDENT BY : SHRI RUDOLPH N DSOUZA % ( )*$ /DATE OF HEARING : 20-11-2014 +,! ( )*$ / DATE OF PRONOUNCEMENT : 02-01-2015 - . - . - . - . O R D E R , , , , PER VIVEK VARMA, JM: WE ARE CONCERNED WITH CO ARISING IN ITA NO. 5912/MUM/2010. THE FOLLOWING GROUND HAS BEEN RAISED: 1 THE COMMISSIONER OF INCOME TAX (APPEALS) -12, MUMBAI (HEREINAFTER REFERRED AS THE CIT(A)) ERRED I N ALLOWING THE CLAIM FOR DEPRECIATION AT RS. 52,42,62 5/- AS AGAINST RS. 63,84,986/- CLAIMED BY THE APPELLANTS. 2. AT THE TIME OF HEARING, THE AR SUBMITTED THAT THE ISS UE RAISED IN THE CO IS COVERED BY THE ORDER OF THE ITAT IN ITA NO . 4354/MUM/2009 FOR ASSESSMENT YEAR 2006-07 IN ASSESSEE S OWN CASE, WHEREIN THE COORDINATE BENCH OBSERVED, GOLDEN CROSS PHARMA PVT LTD, CO NO. 114/MUM/2011 2 2. THE ONLY ISSUE RAISED IN THIS APPEAL RELATES TO THE CLAIM OF DEPRECIATION. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A COMPANY ENGAGED IN THE BUSINESS OF PHARMACEUTICAL FORMULATIONS. FOR THE ASSESSMENT YEAR UNDER CONSIDERATION THE ASSESSEE CLAIMED DEPRECIATION AT RS. 65,91,986/-. THE AO NOTED THAT FOR THE ASSESSMENT YEAR 2001-02 THE ASSESSEE HAD NOT CLAIMED DEPRECIATION ON THE WDV. SUBSEQUENTLY THE CIT REVISED THE ASSESSMENT AND DIRECTED THE AO TO REDO THE ASSESSMENT AFTER GRANTING DEPRECIATION ALLOWANCE. ACCORDINGLY, DEPRECIATION WAS GRANTED TO THE ASSESSEE. ALSO FOR ASSESSMENT YEAR 2004-05 DEPRECIATION WAS ALLOWED TO THE ASSESSEE. THE ASSESSEE HAD CLAIMED DEPRECIATION AT RS.65,91,986/- IGNORING DEPRECIATION ALLOWED FOR ASSESSMENT YEARS 2000-01 AND 2004-05. THEREFORE, THE AO ASKED THE ASSESSEE TO RE-CAST DEPRECIATION FIGURES TAKING INTO CONSIDERATION DEPRECIATION ALLOWED FOR ASSESSMENT YEARS 2001- 02 AND 2004-05. THE ASSESSEE SUBMITTED THE WORKING OF DEPRECIATION BY LETTER DATED 13-11- 2008. TAKING INTO CONSIDERATION THE FIGURES, DEPRECIATION WAS ALLOWED TO THE ASSESSEE AT RS.52,53,658/- AS AGAINST RS.65,91,986/- CLAIMED BY IT. ON APPEAL, THE CIT(APPEALS) CONFIRMED THE ORDER OF THE AO. BEING AGGRIEVED, ASSESSEE IS IN APPEAL BEFORE THIS TRIBUNAL. 3. WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE RECORDS. NONE APPEARED ON BEHALF THE ASSESSEE DESPITE NOTICE. IT IS SEEN FROM RECORDS THAT THE LEARNED AR OF THE ASSESSEE, BY MEANS OF LETTER DATED 30.03.2010, HAD BROUGHT TO THE NOTICE OF THIS BENCH THAT THE CIT(APPEALS) HAS PASSED AN ORDER U/S 154 DATED 11-2-2010 RECTIFYING HIS ORDER DATED 9- 4-2009 AND GRANTING RELIEF TO THE ASSESSEE. IT IS FURTHER MENTIONED IN THE LETTER THAT IN VIEW OF THE FACT THAT THE CIT(APPEALS) HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE, THE APPEAL BEFORE THE TRIBUNAL HAS BECOME INFRUCTUOUS. WE HAVE GONE THROUGH THE ORDER OF THE CIT(APPEALS) DATED 11-2- 2010 IN WHICH THE CIT(APPEALS) HAS OBSERVED AS UNDER: 3. IN VIEW OF THE ABOVE, THE REQUEST FOR RECTIFICA TION OF THE EARLIER ORDER OF THE CIT(A)-VI FOR AY 2006-0 7 IS ACCEPTED AN PARA 4.3 SUBSTITUTED AS UNDER: 3.1 THE AO HAD NOT ALLOWED DEPRECIATION TO THE APPELLANT IN AY 2001-02 AFTER THE ANNULMENT OF THE ORDER U/S 263 AND CONSEQUENT GIVING EFFECT ORDER PASSED BY THE AO. THE ORIGINAL ORDER OF ASSESSMENT WOULD BE THE FINAL ORDER. THUS, DEPRECIATION EFFECTIVELY, WAS NOT ALLOWED TO THE APPELLANT IN AY 2001-02. THE WDV OF THE ASSETS WOULD, THEREFORE, BE HIGHER THAN IF DEPRECIATION WOULD HAVE BEEN ALLOWED IN THAT YEAR. GOLDEN CROSS PHARMA PVT LTD, CO NO. 114/MUM/2011 3 CONSEQUENTLY, THE DISALLOWANCE MADE IN AY 2006- 07 ON ACCOUNT OF EXCESS CLAIM OF DEPRECIATION IS NO T JUSTIFIED. 4. THE APPEAL IS ALLOWED. 3. THE DR ACCEPTED THAT THE ISSUE IS COVERED IN THE PR ECEDING YEAR. 4. ON GOING THROUGH THE ORDER OF THE COORDINATE BENCH ON THE ISSUE RAISED IN THE IMPUGNED ISSUE, WE DO NOT FIND ANY REA SON TO DEVIATE FROM THE ORDER OF THE ITAT IN ASSESSEES OWN CASE. 5. IN THE CIRCUMSTANCES, THE CO AS FILED BY THE ASSESSEE IS ALLOWED. THE AO IS THEREFORE, DIRECTED TO GIVE NECESSARY A ND APPROPRIATE FINDING AND IN LINE OF THE ORDER IN ASSESSMENT Y EAR 2006- 07. 6. IN THE RESULT, THE CO IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 2 ND JANUARY, 2015. SD/- SD/- ( ) (1 1 1 1 ) $ %-' $ %-' $ %-' $ %-' %-' %-' %-' %-' (R C SHARMA) (VIVEK VARMA) ACCOUNTANT MEMBER J UDICIAL MEMBER MUMBAI, DATE: 2 ND JANUARY, 2015 )/ COPY TO:- 1) #' / THE APPELLANT. 2) #' / THE RESPONDENT. 3) THE CIT (A)-27, MUMBAI. 4) 2 C -CITY -16, MUMBAI / THE CIT- CITY -16, MUMBAI. 5) 1 34 ) , , / THE D.R. G BENCH, MUMBAI. 6) 45 6 COPY TO GUARD FILE. -.% / BY ORDER / / TRUE COPY / / 7 / %8 , DY. / ASSTT. REGISTRAR I.T.A.T., MUMBAI *:;8 . . % * CHAVAN, SR. PS