The ITO, Ward 2(2), Baroda V. Joint Venture of MCL & MMCL (AOP), Baroda

ITA 1153/AHD/2009

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0338 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 9 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-01-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 16-01-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 15-04-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAHUL KUMAR SRDR
• Assessee Lawyers: MRS URVASHI SHODHAN
• Keywords: Depreciation
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A AHMEDABAD BEFORE SHRI, A.K.GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.1153/AHD/2009 ASSESSMENT YEAR :2005-06 INCOME TAX OFFICER, WARD-2(2), 2 ND FLOOR, AAYAKAR BHAVAN, RACE COURSE CIRCLE, BARODA V/S . JOINT VENTURE OF MCL & MMCL CREATIVE CASTLE 70 SAMPATRAO COLONY, PRODUCTIVITY ROAD, VADODARA [ PAN NO.AAAAJ 0288L ] / APPELLANT .. / RESPONDENT) /BY APPELLANT SHRI RAHUL KUMAR, SR-DR /BY RESPONDENT MRS. URVASHI SHODHAN, AR /DATE OF HEARING 16-01-2013 /DATE OF PRONOUNCEMENT 18-01-2013 / // / O R D E R PER KUL BHARAT, JUDICIAL MEMBER:- THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-II, BARODA (C IT(A) FOR SHORT) DATED 20-01-2009 PERTAINING TO ASSESSMENT YEAR (AY) 2005- 06. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) ERRED IN 1) DIRECTING TO TAKE THE STATUS OF THE ASSESSEE AS THAT OF AOP AND TAX ITS INCOME SUBSTANTIVE BASIS. 2) DIRECTING TO ALLOW DEPRECIATION OF RS.20,40,788/ - ITA NO.1153/AAHD/2009 A.Y. 2005-06 ITO WD-2(2) BRD V. JOINT VENTURE OF MCL & MMCL PAGE 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LEARNED CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF TH E ASSESSING OFFICER. 2. BRIEFLY STATED FACTS ARE THAT CASE OF THE ASSESS EE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S. 143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRA MED THEREBY THE ASSESSING OFFICER MADE ADDITION IN RESPECT OF DEPRECIATION AN D EXPENSES ON ACCOUNT OF REMUNERATING EXPENDITURE. THE ASSESSEE CHALLENGED T HE ORDER BEFORE LD. CIT(A) WHO FIRSTLY THAT THE ASSESSEE IS ASSOCIATION OF PERSON HAVING EQUAL SHARE IN PROFIT AND LOSS I.E. M/S. MARKET CREATORS LTD., AND M/S. MANI MARKET CREATORS LTD. THE AOP CAME INTO EXISTENCE WITH EFFE CT FROM 01-05-1994 VIDE AGREEMENT DATED 25-10-1994. SECONDLY, AGAINST THE A DDITION OF DISALLOWANCE OF DEPRECIATION AMOUNTING TO RS.20,40,788/-. LD. CI T(A) AFTER CONSIDERING THE SUBMISSIONS OF ASSESSEE ALLOWED THE APPEAL OF THE A SSESSEE ON BOTH THE ISSUES FOLLOWING THE DECISION OF HONBLE CO-ORDINAT E BENCH IN ASSESSEES OWN CASE IN ITA NO. 3034/AHD/2009 DATED 06-07-2012 FOR THE AY 2006-07. 3. NOW THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL . 4. LD. SR-DR SUPPORTED THE ORDER OF ASSESSING OFFIC ER WHEREAS THE LD. COUNSEL FOR THE ASSESSEE SUPPORTED THE ORDER OF LD. CIT(A). LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THIS ISSUE IS SQUARELY COVERED IN ASSESSEES OWN CASE IN RESPECT OF AY 2006-07 AS WELL AS AY 1995-96 . 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT THE FACTS OF THE PRESENT CASE ARE IDENTICAL AS WELL AS AY 2006-07 AND THE HONBLE CO-ORDINAGE BENC H RENDERED IN ASSESSEES OWN CASE IN ITA NO.3034/AAHD/2009 (SUPRA ) HAS DECIDED BOTH THE ISSUES IN FAVOUR OF ASSESSEE. WE FIND THAT LD. DR O F THE REVENUE COULD NOT CONTROVERT THE SUBMISSION OF LD. COUNSEL FOR THE AS SESSEE IN ITA NO. 3034/AHD/2009 (SUPRA) THE IDENTICAL GROUNDS WERE RA ISED AND THERE IS NO CHANGE INTO THE FACTS HAS BEEN POINTED OUT. IN THIS VIEW OF THIS MATTER AND ITA NO.1153/AAHD/2009 A.Y. 2005-06 ITO WD-2(2) BRD V. JOINT VENTURE OF MCL & MMCL PAGE 3 RESPECTFULLY FOLLOWING THE DECISION OF HONBLE CO-O RDINATE BENCH RENDERED IN ASSESSEES OWN CASE IN ITA NO. 3034/AHD/2009 (SUPRA ) THIS GROUND OF REVENUES APPEAL IS DISMISSED. 6. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. SD/- SD/- (A.K.GARODIA) (KUL BHARAT) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, *DKP !' #- 18/01/2013 *+, - ../ ../ ../ ../ 0/ 0/ 0/ 0/ / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. ','.2 3 / CONCERNED CIT 4. 3- / CIT (A) 5. /67 ...2, .2 , *+, / DR, ITAT, AHMEDABAD 6. 7:; <= / GUARD FILE. BY ORDER/ , /TRUE COPY/ >/* '? .2 , *+, - STRENGTHEN PREPARATION & DELIVERY O F ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 16/01 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE NO 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 16/01 4) DATE OF CORRECTION - - 5) DATE OF FURTHER CORRECTION - - 6) DATE OF INITIAL SIGN BY MEMBERS 17/01 7) ORDER UPLOADED ON 18/01 8) ORIGINAL DICTATION PAD-PART HAS BEEN ENCLOSED IN THE FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 18/01