Gemini Communication Ltd., CHENNAI V. ACIT Corporate Circle 2(1), CHENNAI

ITA 1379/CHNY/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5060 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-05-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 25-04-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SAILENDRA MAMIDIPCIT
• Keywords: Capital asset; Depreciation

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI . . . , ! ' , $ '% BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ./ ITA NO.1379/CHNY/2018 ( )( / ASSESSMENT YEAR : 2013-14 M/S GEMINI COMMUNICATION LTD., 63/14 CORPORATION COMPLEX, NSK SALAI, KODAMBAKKAM, CHENNAI - 600 024. PAN : AAACG 2531 K V. THE ASSISTANT COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 2(1), CHENNAI. (+,/ APPELLANT) (-.+,/ RESPONDENT) +, / 0 / APPELLANT BY : NONE -.+, / 0 / RESPONDENT BY : SHRI SAILENDRA MAMIDI, PCIT 1 / 2$ / DATE OF HEARING : 24.04.2019 34) / 2$ / DATE OF PRONOUNCEMENT : 17.05.2019 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER : THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) -6, CHENNAI, D ATED 30.01.2018 AND PERTAINS TO ASSESSMENT YEAR 2013-14. 2. THIS APPEAL WAS FIXED FOR HEARING ON 24.04.2019. THE NOTICE OF HEARING WAS ISSUED TO THE ASSESSEE BY RPAD. THE PO STAL AUTHORITIES RETURNED THE NOTICE OF HEARING WITH AN ENDORSEMENT LEFT. THIS TRIBUNAL 2 I.T.A. NO.1379/CHNY/18 HAS NO MACHINERY TO TRACE OUT THE CURRENT ADDRESS O F THE ASSESSEE AND SERVE THE NOTICE. WHENEVER THERE IS A CHANGE IN TH E ADDRESS AFTER FILING THE APPEAL BEFORE THIS TRIBUNAL, IT IS FOR THE ASSE SSEE TO INTIMATE THE CHANGE BY FILING A REVISED FORM 36 SO THAT THE NOTI CE OF HEARING CAN BE SENT TO THE ASSESSEE. SINCE THE CHANGE OF ADDRESS WAS NOT INTIMATED TO THE REGISTRY, THIS TRIBUNAL IS OF THE CONSIDERED OP INION THAT THE ASSESSEE MAY NOT BE INTERESTED IN PROSECUTING THE APPEAL. W HATEVER MAY BE THE REASON, THIS TRIBUNAL IS EXPECTED TO DISPOSE OF THE APPEAL ON MERIT. THEREFORE, WE HEARD THE LD. DEPARTMENTAL REPRESENTA TIVE AND PROCEEDED TO DISPOSE THE APPEAL ON MERIT. 3. SHRI SAILENDRA MAMIDI, THE LD. DEPARTMENTAL REPR ESENTATIVE SUBMITTED THAT THE ASSESSEE CLAIMED ADDITION OF FIX ED ASSET TO THE EXTENT OF 36,72,43,126/-. HOWEVER, ACCORDING TO THE LD. D.R. , NO EVIDENCE WAS FILED FOR PURCHASE OF SO CALLED CAPITAL ASSET. THE ASSESSEE HAS FILED EVIDENCE ONLY TO THE EXTENT OF 1,18,24,828/-. THEREFORE, ACCORDING TO THE LD. D.R., THE DEPRECIATION CLAIMED ON THE SOFTW ARE, THE PURCHASE OF WHICH WAS NOT ESTABLISHED WAS DISALLOWED TO THE EXT ENT OF 22,03,45,875/-. ACCORDING TO THE LD. D.R., THE CIT (APPEALS) FOUND THAT FOR THE EARLIER YEAR, THE MATTER WAS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER FOUND THA T THE ASSESSEE IS NOT ELIGIBLE FOR DEPRECIATION. SINCE THE PURCHASE ITSE LF WAS NOT ESTABLISHED, 3 I.T.A. NO.1379/CHNY/18 ACCORDING TO THE LD. D.R., THE CIT(APPEALS) HAS RIG HTLY CONFIRMED THE DISALLOWANCE MADE BY THE ASSESSING OFFICER. 4. WE HEARD THE LD. D.R. AND PERUSED THE RELEVANT M ATERIAL AVAILABLE ON RECORD. THE ASSESSEE CLAIMED PURCHAS E OF SOFTWARE TO THE EXTENT OF 36,72,43,126/- AND CLAIMED DEPRECIATION TREATING TH E SAME AS CAPITAL ASSET. THE ASSESSING OFFICER FOUND THAT TH E EVIDENCE PRODUCED BY THE ASSESSEE IS A FABRICATED EVIDENCE FOR THE PU RPOSE OF SUPPRESSING THE PROFIT. THE PROOF OF PAYMENT WAS NOT PRODUCED. THE ASSESSING OFFICER HAS ALSO OBSERVED THAT THE BILL PRODUCED BY THE ASSESSEE WAS NOT CLEAR AND COMPLETE. THE TAX INVOICE PRODUCED TO TH E EXTENT OF 1,18,24,828/- WAS FOUND TO BE GENUINE AND THE ASSES SING OFFICER ACCEPTED THE SAME. THE BALANCE PURCHASE PRICE WAS DOUBTED AND THE DEPRECIATION TO THE EXTENT OF 22,03,45,875/- WAS DISALLOWED BY THE ASSESSING OFFICER. THE CIT(APPEALS) SPECIFICALLY D OUBTED THE PURCHASE AND PAYMENT OF PURCHASE PRICE. IT IS FOR THE ASSES SEE TO PRODUCE NECESSARY MATERIAL ATLEAST BEFORE THIS TRIBUNAL WHI CH IS BEING THE FINAL FACT FINDING AUTHORITY. NO MATERIAL IS AVAILABLE O N RECORD FOR PURCHASE OF SOFTWARE. MOREOVER, THE ASSESSEE HAS ALSO CHOSEN NO T TO APPEAR BEFORE THIS TRIBUNAL. IN THOSE CIRCUMSTANCES, THIS TRIBUN AL DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF THE LOWER AUT HORITY AND ACCORDINGLY THE SAME IS CONFIRMED. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. 4 I.T.A. NO.1379/CHNY/18 ORDER PRONOUNCED IN THE COURT ON 17 TH MAY, 2019 AT CHENNAI. SD/- SD/- ( ! ' ) ( . . . ) (INTURI RAMA RAO) (N.R.S. GANESAN) $ / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 6 /DATED, THE 17 TH MAY, 2019. KRI. / -278 98)2 /COPY TO: 1. +, /APPELLANT 2. -.+, /RESPONDENT 3. 1 :2 () /CIT(A)-6, CHENNAI 4. PRINCIPAL CIT-2, CHENNAI 5. 8; -2 /DR 6. <( = /GF.