ITO, Hyderabad V. M/s Nagarjuna Aqua Exports Limited, Hyderabad

ITA 1308/HYD/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3252 (ITAT-HYDERABAD)
• Duration Of Justice: 8 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 21-06-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 13-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DISPOSED OFF
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SHRI G.C.GUPTA, VICE PRESIDENT AND SHRI AKBE R BASHA, ACCOUNTANT MEMBER ITA NO.1308 & 1309/HYD/2010 : ASSTT. YEARS 2004-0 5 & 2006-07 ITO, WARD-16(2), -V- HYDERABAD. (APPELLANT) M/S NAGARJUNA AQUA EXPORTS LIMITED, HYDERABAD. (PAN AAACN 7326 D) (RESPONDENT) APPELLANT: SHRI B.V. PRA SAD REDDY RESPONDENT: SHRI V. SHIV KUMA R O R D E R PER AKBER BASHA, AM:- THESE APPEALS FILED BY THE REVENUE ARE DIRECTED A GAINST SEPARATE ORDERS OF THE CIT (A)-V, HYDERABAD DATED 1 6-7-2010 AND THEY PERTAIN TO THE ASSESSMENT YEARS 2004-05 & 2006 -07. SINCE COMMON ISSUES ARE INVOLVED IN THESE TWO APPEALS AND ALSO THE ASSESSEE-RESPONDENT IS ALSO COMMON, THESE ARE CLUBB ED TOGETHER AND DISPOSED OFF BY THIS COMBINED ORDER FOR THE SAK E OF CONVENIENCE. ITA NOS.1308 &1309 OF 2010 NAGARJUNA AQUA EXPORTS LIMITED, HYD. ============================ 2 2. COMMON AND IDENTICAL GROUNDS OF APPEAL RAISED BY THE REVENUE READ AS UNDER:- 1. THE LEARNED CIT(A) ERRED IN FOLLOWING THE ITAT S ORDER IN ITA NO.988 TO 991/HYD/2006 DATED 27-6-08 PASSED IN ASSE SSEES OWN CASE FOR THE EARLIER YEARS IN DECIDING THE ISSU E. 2. IN THE ABSENCE OF STATUTORY DEFINITION OR ANY IN DICATION OF STATUTE AS TO ANY SPECIAL MEANING, THE LEARNED CIT(A) OUGHT NOT TO HAVE HELD THAT PONDS ARE AKIN TO A PLANT AND NOT A BUIL DING FOR THE PURPOSE OF CLAIMING DEPRECIATION U/S 32. 3. WHETHER ON THE APPLICATION OF FUNCTIONALITY TEST , THE PONDS USED IN AQUA CULTURE HAVE TO BE TREATED AS BUILDING OR PLANT OR LAND. 4. ANY OTHER GROUND THAT MAY BE URGED AT THE TIME O F HEARING. 2. AT THE OUTSET, WE FIND THAT THE ISSUES INVOLVED IN THESE APPEALS ARE COVERED BY THE DECISION OF THE TRIBUNAL PASSED IN ITA NOS. 988 TO 991/HYD/2006 DATED 27-6-2008 RELATING T O ASSESSMENT YEAR 2000-01 TO 2003-04 IN THE ASSESSEE S OWN CASE. IN THIS REGARD, THE LEARNED COUNSEL FOR THE ASSESSE E HAS FILED WRITTEN SUBMISSIONS BEFORE US WHEREIN IT WAS MENTIO NED THAT THE ASSESSEE COMPANY OWNS 100 AQUA CULTURE PONDS AND IT CLAIMED DEPRECIATION IN A SUM OF RS.91,86,120/- ON THESE PO NDS AT 25% BEING THE RATE APPLICABLE TO PLANT AND MACHINERY, R ELYING UPON THE JUDGMENT OF THE KERALA HIGH COURT IN THE CASE OF CI T VS. VICTORY AQUA FARM LIMITED 271 ITR 530 AND A COPY OF THE SAI D JUDGMENT IS PRODUCED BEFORE US. IT IS FURTHER SUBMITTED THAT T HE ASSESSING OFFICER WAS OF THE VIEW THAT THESE PONDS ARE AKIN T O WATER STORAGE TANKS AND CANNOT BE CONSIDERED AS PLANT AND MACHINE RY. IT IS SUBMITTED THAT THE ITAT HAD ALREADY DECIDED THIS IS SUE IN FAVOR OF ITA NOS.1308 &1309 OF 2010 NAGARJUNA AQUA EXPORTS LIMITED, HYD. ============================ 3 THE ASSESSEE AND THE RELEVANT ORDER OF THE TRIBUNAL PASSED IN ITA NOS. 988 TO 991/HYD/2006 DATED 27-6-2008 RELATING T O ASSESSMENT YEAR 2000-01 TO 2003-04. 3. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPR ESENTATIVE RELIED ON THE ORDER OF THE ASSESSING OFFICER AND GR OUNDS OF APPEAL. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. WE HAVE GONE THROUGH THE SAID ORDER OF THE TRIBUNAL PASSED IN THE ASSESSEES OWN CASE M ENTIONED SUPRA AND FIND THAT THE FACTS AND THE CIRCUMSTANCES OF BO TH THESE CASES ARE IDENTICAL. IN VIEW OF THE ABOVE, BY FOLLOWING THE ORDER OF THE TRIBUNAL PASSED IN ITA NOS. 988 TO 991/HYD/2006 DAT ED 27 TH JUNE, 2008, WE UPHOLD THE FINDINGS OF THE CIT (A) FOR THE YEARS UNDER CONSIDERATION AND REJECT THE GROUNDS RAISED BY THE REVENUE. 5. IN THE RESULT, BOTH THE APPEALS FILED BY THE REV ENUE STAND DISMISSED. ORDER WAS PRONOUNCED IN THE COURT ON 24- 06 -2011. SD/- SD/- (G.C. GUPTA) (AKBER BASHA) VICE PRESIDENT ACCOUNTANT MEMBER DT. 24 -06-2011. JMR* ITA NOS.1308 &1309 OF 2010 NAGARJUNA AQUA EXPORTS LIMITED, HYD. ============================ 4 COPY FORWARDED TO: 1. 2. 3. 4. 5. ITO, WARD-16(2), 6 TH FLOOR, AAYAKAR BHAVAN, BASHEERBAGH, HYDERABAD. M/S. NAGARJUNA AQUA EXPORTS LIMITED, 6 NAGARJUNA HI LLS, PUNJAGUTTA, HYDERABAD. CIT (A)-V, HYDERABAD. CIT, AP, HYDERABAD. THE DR, ITAT, HYDERABAD.