M/s Boulder Hills Leisure Private Limited, Hyderabad V. DCIT, Circle-1(3), Hyderabad

ITA 1234/HYD/2014

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 5372 (ITAT-HYDERABAD)
• Duration Of Justice: 6 year(s) 10 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-05-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB-A
• Next Hearing Date: 24-03-2021
• Assessment Year: 2007-2008
• Appeal Filed On: 23-06-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: A V RAGHURAM
• Keywords: Depreciation
• Section: 143(3); 13; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A : HYDERABAD (THROUGH VIDEO CONFERENCE) BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND SHRI LAXMI PRASAD SAHU, ACCOUNTANT MEMBER I.T.A. NOS. 1233 & 1234/HYD/2014 ASSESSMENT YEARS: 2007-08 & 2008-09 M/S.BOULDER HILLS LEISURE PRIVATE LIMITED, HYDERABAD [PAN: AACCB5076C] VS DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-1(3), HYDERABAD PRESENT ASSESSING OFFICER AFTER RESTRUCTURING OF INCOME TAX DEPT: DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-1(2), HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI A.V.RAGHURAM, AR FOR REVENUE : SHRI SUNIL KUMAR PANDEY, DR DATE OF HEARING : 24-03-2021 DATE OF PRONOUNCEMENT : 06-05-2021 O R D E R PER S.S.GODARA, J.M. : THESE TWO ASSESSEES APPEALS FOR AYS.2007-08 & 2008 -09 ARISE FROM THE CIT(A)-II, HYDERABADS ORDER(S) BOTH D ATED 03- 03-2014, PASSED IN APPEAL NOS.0640 & 0641/CIT(A)-I I, HYD/ 2011-12; IN PROCEEDINGS U/S. 143(3) R.W.S.263 OF THE INCOME TAX ACT, 1961 [IN SHORT, THE ACT]. HEARD BOTH PARTIES. CASE FILES PERUSED. 2. IT TRANSPIRES AT THE OUTSET THAT ASSESSEES IDENTICAL SO LE SUBSTANTIVE GRIEVANCE CHALLENGES CORRECTNESS OF BOTH TH E LOWER AUTHORITIES ACTION DISALLOWING DEPRECIATION CLAIM(S ) FOR THE ITA NOS. 1233 & 1234/HYD/2014 :- 2 -: PRECISE REASON THAT IT HAD NEITHER COMMENCED ITS BUSINE SS NOR THE FIXED ASSETS HAD BEEN KEPT AS READY TO USE. THE CIT (A)S DETAILED DISCUSSION TO THIS EFFECT READS AS UNDER: 2. THE FACTS AND FIGURES PERTAINING TO A.Y.2007-08 AND 2008-09 ARE AS UNDER: SL. NO. ASST. YEAR INCOME OR LOSS RETURNED ORDER U/S. DATE OF ORDER NATURE OF ADDITIONS 1 2007-08 RS.(-) 3,88,81,784/- 143(3) 29.12.2009 DEPRECIATION DISALLOWED: RS.3,60,93,017/ - 2 2007-08 143(3) R.W.S.263 18.11.2011 INCOME FROM OTHER SOURCES: RS. 1,17,06,046/ - 3 2008-09 RS.(-) 5,09,79,421/- 143(3) R.W.S.147 18.11.2011 INCOME FROM OTHER SOURCES: RS.55,33,162/- ITA NOS. 1233 & 1234/HYD/2014 :- 3 -: ITA NOS. 1233 & 1234/HYD/2014 :- 4 -: ITA NOS. 1233 & 1234/HYD/2014 :- 5 -: ITA NOS. 1233 & 1234/HYD/2014 :- 6 -: ITA NOS. 1233 & 1234/HYD/2014 :- 7 -: ITA NOS. 1233 & 1234/HYD/2014 :- 8 -: ITA NOS. 1233 & 1234/HYD/2014 :- 9 -: ITA NOS. 1233 & 1234/HYD/2014 :- 10 -: ITA NOS. 1233 & 1234/HYD/2014 :- 11 -: ITA NOS. 1233 & 1234/HYD/2014 :- 12 -: 3. LEARNED AUTHORISED REPRESENTATIVE VEHEMENTLY CONTEND ED DURING THE COURSE OF HEARING THAT BOTH THE LOWER AUTHOR ITIES HAVE ERRED IN LAW AND ON FACTS IN TREATING THE ASSESSEE AS NOT ELIGIBLE FOR THE IMPUGNED DEPRECIATION CLAIM PERTAINI NG TO THE CORRESPONDING FIXED ASSETS I.E., GOLF COURSE IN AYS. 2007-08 AND 2008-09. HE FURTHER CLARIFIED THAT THE ASSESSEES APP EAL ITTA NO.515/2012 RAISING THE VERY ISSUE AGAINST THE TRIBUNAL S FIRST ROUND ORDER IN SECTION 263 PROCEEDINGS HOLDING TO THE CONTRARY; IS PENDING BEFORE THE HON'BLE JURISDICTIONAL HIGH COURT AND THEREFORE, BOTH THESE APPEALS DESERVE TO BE ADJOURNED SINE DIE SO AS TO AWAIT FINAL ADJUDICATION THEREOF. MR.RAGHURAM LASTLY CONTENDED THAT THE FACTS OF THE LATTER AY.2008-09 BEFORE US STAND ON A DIFFERENT FOOTING SINC E THE ASSESSEES GOLF COURSE HAD BEEN LET OUT GIVING RISE TO THE INCOME DERIVED THEREFROM IN FY.2007-08. 4. LEARNED DEPARTMENTAL REPRESENTATIVE HAS STRONGLY SUPPORTED THE IMPUGNED DEPRECIATION ALLOWANCE MADE IN BOTH THE LOWER PROCEEDINGS. ITA NOS. 1233 & 1234/HYD/2014 :- 13 -: 5. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO THE FOREGOING RIVAL PLEADINGS AGAINST AND IN SUPPORT OF TH E IMPUGNED DEPRECIATION DISALLOWANCE. LD.COUNSEL HAS B EEN HIMSELF VERY FAIR IN INDICATING AT THE OUTSET THAT THE I SSUE OF GOLF COURSE BEING READY TO USE AND OPERATION THEREOF H AVING BEEN COMMENCED IN AY.2007-08 STANDS DECIDED IN REVEN UES FAVOUR IN THE TRIBUNAL ORDER (SUPRA) AND THE TAX APPEAL AGAINST THE SAME IS PENDING BEFORE THE HON'BLE JURISDICTIONAL HIGH COURT. THAT BEING THE CASE, WE ADOPT JUDICIAL CONSISTE NCY AND CONFIRM THE IMPUGNED DEPRECIATION DISALLOWANCE. MORE SO, IN VIEW OF THE FACT THAT LEARNED CO-ORDINATE BENCH HAS AL READY APPLIED ITS MIND AND NO EVIDENCE TO THE CONTRARY HAS CO ME FROM THE TAXPAYERS SIDE. COMING TO THE ASSESSEES CASE THAT IT HAD DERIVED RECEI PTS IN FY.2007-08, MR.RAGHURAM MADE A VALIANT ATTEMPT TO REF ER TO THE PAPER BOOK ON RECORD. IT, HOWEVER, TRANSPIRED D URING THE COURSE OF HEARING THAT THE SAID RECEIPTS PERTAIN TO THE PERIOD FROM 01-04-2008 ONWARDS RELEVANT TO AY.2009-10 ONLY THAN COVERING THE PERIOD FROM 01-04-2007 TO 31-02-2008 . WE THUS AFFIRM BOTH THE LEARNED LOWER AUTHORITIES ACTION DISALLOWING ASSESSEES DEPRECIATION CLAIM IN THE GIV EN FACTS AND CIRCUMSTANCES. 6. THESE TWO ASSESSEES APPEALS ARE DISMISSED IN AB OVE TERMS. A COPY OF THIS COMMON ORDER BE PLACED IN THE R ESPECTIVE CASE FILES. ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH MAY, 2021 SD/- SD/- (LAXMI PRASAD SAHU) (S. S.GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATED: 06-05-2021 TNMM ITA NOS. 1233 & 1234/HYD/2014 :- 14 -: COPY TO : 1.M/S.BOULDER HILLS LEISURE PRIVATE LIMITED, BOULDE R HILLS GOLF & COUNTRY CLUB, OPP: INDIAN SCHOOL OF BUSINESS , MANIKONDA VILLAGE, GACHIBOWLI, HYDERABAD. 2.THE DY.COMMISSIONER OF INCOME TAX, CIRCLE-1(2), HYDERABAD. 3.CIT(APPEALS)-II, HYDERABAD. 4.CIT-I, HYDERABAD. 5.D.R. ITAT, HYDERABAD. 6.GUARD FILE.