M/s. Ahmedabad Dyeing & Printing Pvt.Ltd., Ahmedabad V. The Income tax Officer,Ward-1(1), Ahmedabad

ITA 1140/AHD/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 80514 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-11-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 20-11-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 18-04-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V K SINGH
• Assessee Lawyers: G A MEHTA
• Keywords: Depreciation; Unabsorbed depreciation
• Section: 43B; 115JB; 37(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH AHMEDABAD , BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER. ITA.NOS. 1139 & 1140/AHD/2011 (ASSESSMENT YEAR: 2007-08) M/S. AHMEDABAD DYEING & PRINTING PVT LTD OPP: MAHALAXMI MILL COMPOUND, DUDHESHWAR ROAD, SHAHIBAUG, AHMEDABAD APPELLANT VS. INCOME TAX OFFICER, WARD-1(1), AHMEDABAD RESPONDENT PAN: AABCA5993Q /BY APPELLANT : SHRI G.A. MEHTA, A.R. /BY RESPONDENT : SHRI V.K. SINGH, SR. D.R. !' /DATE OF HEARING : 20.11.2014 #$% !' /DATE OF PRONOUNCEMENT : 21.11.2014 ORDER I.T.A. NOS. 1139 & 1140/AHD/2011 A.Y. 2007-08 (M/S. AHMEDABAD DYEING & PRINTING PVT LTD VS. ITO) PAGE 2 THESE TWO APPEALS HAVE BEEN FILED BY THE ASSESSEE F OR SAME YEAR ARISING FROM THE SAME ORDER OF COMMISSION ER OF INCOME TAX (APPEALS)-VI, AHMEDABAD FOR A.Y. 2007-08 DATED 03-02-2011. 2. ASSESSEE HAS FILED ITA NO. 1139/AHD/2011 ON FOL LOWING GROUNDS 1. THE APPELLANTS SUBMIT THAT THE LD CIT(A) HAS ERRED IN CONFIRMING THE DISALLOWANCE OF RS. 30,26.630/- ( RS . 25,00,000/- + RS. 526630/- BEING EXCISE DUTY AND EXPENSES, MADE BY THE AO AS PER EXPLANATION TO SECT ION 37(1) OF I T ACT AS AGAINST THE CLAIM OF THE APPELL ANT FOR DEDUCTION U/S 43 B ON ACTUAL PAYMENT BASIS. 1.1 THE APPELLANTS SUBMIT THAT THE LD CIT(A) HAS ER RED IN CONFIRMING THE DISALLOWANCE OF THE SAID EXPENSES ON THE GROUND THAT THEY WERE NOT FOR DISCLOSED BUSINESS AN D THEREFORE NOT ALLOWABLE. 1.2 THE APPELLANTS FURTHER SUBMIT THAT THE LD CIT(A ) HAS ERRED IN CONFIRMING THE DISALLOWANCE OF RS. 25,00,0 00/- ON THE GROUND THAT IT WAS NOT DUTY PAID BUT ONLY DEPOS IT AS PER THE ORDER OF THE TRIBUNAL FOR CONTESTING THE DISPUT E AND HENCE NOT ALLOWABLE U/S 43B. 2. THE APPELLANTS SUBMIT THAT THE LD CIT(A) HAS ERR ED IN CONFIRMING THE ADDITION OF RS. 3,07,316/- BEING PAY MENT OF EMPLOYEES CONTRIBUTION LO PF/ESIC U/S 2 (24)(X) R.W .S 36(1) (VA) OF I.T. ACT MADE BY THE AO ON THE GROUND THAT SINCE THERE HAS BEEN DELAY IN PAYMENT, THE SAME WAS NOT ALLOWABLE. 2.1 THE APPELLANTS SUBMIT THAT AS PER AMENDED PROVI SIONS OF SECTION 43 B FROM 1-04-2004, ANY SUM ACTUALLY PA ID BEFORE FILING THE RETURN U/S 139(1) WAS TO BE ALLOW ED AS DEDUCTION U/S 43B R.W,S 36(1)(VA) AND 2 (24) (X) OF I.T. ACT. AS SUCH, THE ADDITION CONFIRMED BY LD CIT(A) IS ILL EGAL IN VIEW OF THE SUPREME COURT DECISION REPORTED IN 319 ITR 306 (SC). I.T.A. NOS. 1139 & 1140/AHD/2011 A.Y. 2007-08 (M/S. AHMEDABAD DYEING & PRINTING PVT LTD VS. ITO) PAGE 3 VIEW OF THE SUPREME COURT DECISION REPORTED IN 319 ITR 306 (SC). AND ITA NO. 1140/AHD/2011 ON FOLLOWING GROUNDS:- 1. THE APPELLANTS SUBMIT THAT THE LD CIT(A) HAS E RRED IN CONFIRMING THE ORDER OF THE AO U/S 115JB COMPUTING THE BOOK PROFIT AT RS, 7,31,355/- AFTER SET OFF OF UNAB SORBED DEPRECIATION OF RS. 8,02,865/- AS AGAINST THE COMPU TATION OF BOOK PROFIT AT NIL AFTER SET-OFF OF UNABSORBED DEPR ECIATION OF RS. 16,31,146/- BY THE APPELLANTS. 1.1 THE APPELLANTS SUBMIT THAT THE LD CIT(A) HAS ER RED IN CONFIRMING THE SET-OFF OF BUSINESS PROFITS OF A.Y. 2005-2006 AND 2006-2007 OF RS. 2,96,212/- AND RS.5,32,069/- RESPECTIVELY AGAINST THE BROUGHT FORWARD UNABSORBED DEPRECIATION OF RS. 16 , 3I,146/- INSTEAD OF BROUGHT FORWARD BUSINESS LOSSES OF RS, 1,00,60,61S/-, BY THE AO WHICH IS NOT VALID IN LAW. 1.2 THE APPELLANTS FURTHER SUBMIT THAT LD CIT(A) HA S ERRED IN NOT CONSIDERING THE STATEMENT OF BUSINESS AND DEPRECIATION LOSS BROUGHT FORWARD AS PER BOOKS OF A CCOUNTS FOR THE ASSESSMENT YEARS FROM 1983- 84 TO 2006-2007 WHICH WAS FILED WITH THE LD CIT(A) ON 24-01-2011 AT THE LIME OF APPEAL HEARING AND HAD SUBMITTED THAT IF THE UNA BSORBED DEPRECIATION OF RS. 38,46,816/-BEING LESSER THAN UNABSORBED BUSINESS LOSS OF RS. 1,46,65,152/- BE SE T OFF AGAINST THE BOOK PROFIT OF RS. 15,34,220/- THE BOOK PROFIT U/S 115JB WILL BE NIL AND AS SUCH THE BOCK PROFIT W ORKED OUT BY THE AO U/S 115JB OF RS. 7,31,355/- BEING ILL EGAL, BE CANCELLED. 2.1 DURING THE COURSE OF PROCEEDINGS, IT WAS FOUND THAT ASSESSEE HAS FILED TWO APPEALS FROM THE FACTS ARISI NG OUT OF THE ORDER OF LD. CIT(A) MEANING THEREBY ASSESSEE FILED TWO APPEALS ON DIFFERENT ISSUES ARISING FROM THE SAME ORDER OF CIT(A) WHICH IS NOT JUSTIFIED. SO, WE ARE DISMISSING BOTH THE A PPEALS. HOWEVER, ASSESSEE HAS LIBERTY TO FILE APPEAL AS PER LAW WITHIN I.T.A. NOS. 1139 & 1140/AHD/2011 A.Y. 2007-08 (M/S. AHMEDABAD DYEING & PRINTING PVT LTD VS. ITO) PAGE 4 REASONABLE TIME. THUS ORDER HAS NO BEARING ON THE MERIT OF THE ISSUE AT HAND. 3. AS A RESULT, BOTH THE APPEALS FILED BY THE ASSES SEE ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS THE 21ST DAY OF NOVEMBER, 2014. SD/- SD/- (ANIL CHATURVEDI) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBE R A.K. & & & & ' ' ' ' ('% ('% ('% ('% / COPY OF ORDER FORWARDED TO:- 1. +, / REVENUE 2. / ASSESSEE 3. // 0 / CONCERNED CIT 4. 0- / CIT (A) 5. '45 , , / DR, ITAT, AHMEDABAD 6. 589 :; / GUARD FILE. BY ORDER / & ,