DCIT, JODHPUR V. M/s. Jodhpur Vidhyut Vitran Nigam Limited, JODHPUR

ITA 1/JODH/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1582 (ITAT-JODHPUR)
• Duration Of Justice: 2 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 19-02-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 03-01-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K KHANDELWAL
• Assessee Lawyers: ANIL BHANSALI
• Keywords: Depreciation; Opportunity of being heard
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K.SAINI, ACCOUNTANT MEMBER ITA NO. 1/JU/2011 ASSESSMENT YEAR : 2007-08 THE DCIT, VS. M/S JODHPUR VIDYUT VITRAN NIGAM LTD ., CIRLCE-1, JODHPUR JODHPUR PAN NO. AAACJ8578R (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI A.K.KHANDELWAL RESPONDENT BY : SHRI ANIL BHANSALI DATE OF HEARING : 19.02.2013 DATE OF PRONOUNCEMENT : 19.02.2013 ORDER PER N.K.SAINI, A.M. THIS IS AN APPEAL BY THE DEPARTMENT AGAINST THE ORD ER DATED 11.11.2010 OF CIT(A), JODHPUR. 2. THE ONLY ISSUE RAISED IN THIS APPEAL READS AS UN DER:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A), JODHPUR HAS ERRED IN :- DIRECTING THE ASSESSING OFFICER TO DELETE THE DISALLOWANCE OF RS. 1,06,74,96,130/- MADE U/S 40(A) (IA) 2 ON ACCOUNT OF NON DEDUCTION OF TAX FROM THE PAYMENT TO THE CONTRACTORS. 3. DURING THE COURSE OF HEARING, THE LD. COUNSEL FO R THE ASSESSEE ON THE VERY OUTSET STATED THAT THIS ISSUE IS COVERED IN FA VOUR OF THE ASSESSEE VIDE ORDER DATED 25.7.2012 IN ASSESSEES OWN CASE IN ITA NO. 432/JU/2009 OF THE ASSESSMENT YEAR 2006-07, A COPY OF THE SAID ORD ER WAS FURNISHED. 4. THE LEARNED LD. DR ALTHOUGH RELIED ON THE ORDER OF THE ASSESSING OFFICER BUT COULD NOT CONTROVERT THE AFORESAID CONT ENTION OF THE ASSESSEE. 5. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PA RTIES AND THE MATERIAL ON RECORD, IT IS NOTICED THAT THE LEARNED CIT(A) DELETED THE ADDITION MADE BY THE ASSESSING OFFICER BY FOLLOWING THE EARLIER ORDER OF HIS PREDECESSOR FOR THE ASSESSMENT YEAR 2006-07, WH ICH WAS A SUBJECT MATTER OF THE ASSESSEES APPEAL IN ITA NO. 432/JU/2 009 WHEREIN THIS ISSUE HAS BEEN SET ASIDE TO THE ASSESSING OFFICER FOR FRE SH ADJUDICATION AND RELEVANT FINDINGS HAS BEEN GIVEN IN PARA 18 OF THE SAID ORDER, WHICH READS AS UNDER:- 18. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PARTIES AND MATERIAL ON RECORD, IT APPEARS THAT THE FACTS RELATING TO THE NATURE OF EXPENDITURE IN QUESTION ARE NOT BR OUGHT ON RECORD, BECAUSE IT IS NOT CLEAR AS TO WHETHER THE A SSESSEE INCURRED THE EXPENDITURE IN RESPECT OF THE ASSETS W HICH WERE IN PROGRESS OR THE ASSETS CAME INTO EXISTENCE AND THE ASSESSEE CLAIMED DEPRECIATION ON THOSE ASSETS. THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT NO 3 EXPENDITURE WAS DEBITED ON ACCOUNT OF DEPRECIATION RELATING TO ASSETS VALUING TO RS. 50,50,99,633/- W HICH WERE SHOWN AS WORK IN PROGRESS BY THE ASSESSEE HAD NOT BEEN CONTROVERTED BY THE LD DR. WE, THEREFORE, DEEM IT APPROPRIATE TO REMAND THIS ISSUE BACK TO THE FILE O F THE ASSESSING OFFICER TO BE ADJUDICATED AFRESH IN ACCOR DANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTU NITY OF BEING HEARD TO THE ASSESSEE. 6. SINCE THE FACTS FOR THE YEAR UNDER CONSIDERATION ARE IDENTICAL TO THE FACTS INVOLVED IN THE ASSESSMENT YEAR 2006-07 IN IT A NO. 432/JU/2009 (SUPRA), SO RESPECTFULLY FOLLOWING THE SAID ORDER D ATED 25.7.2012, THIS ISSUE IS REMANDED BACK TO THE FILE OF THE ASSESSING OFFIC ER FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REAS ONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 19.02.2013) SD/- SD/- (HARI OM MARATHA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMER DATED : 19 TH FEBRUARY, 2013, RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR ASSISTANT REGISTRAR 4