Parag Bakers (P) Ltd., Meerut V. ACIT, Meerut

ITA 1398/DEL/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3569 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Next Hearing Date: 06-07-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 18-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR B R R KUMAR
• Assessee Lawyers: PIYUSH AGARWAL
• Keywords: Depreciation; Unabsorbed depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH I NEW DELHI) BEFORE SMT. DIVA SNGH, JUDICIAL MEMBER AND SHRI B.K. HALDAR, ACCOUNTANT MEMBER I.T.A. NO.1398/DEL/2011 ASSESSMENT YEAR : 2005-06 M/S PARAG BAKERS (P) LTD., ACIT, 37-A,MOHKAMPUR IND. COMPLEX, CIRCLE-2, PHASE-I, MEERUT. V. MEERUT. (APPELLANT) (RESPONDENT) PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO.AAECP AAECP AAECP AAECP- -- -0527 0527 0527 0527- -- -A AA A APPELLANT BY : SHRI PIYUSH AGARWAL, C.A. RESPONDENT BY : DR.B.R.R. KUMAR, SR. DR. ORDER PER B.K. HALDAR, AM: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD CIT(A), MEERUT DATED 31.12.2010 FOR ASSESSMENT YEAR 2005-06. TH E ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF APPEALS:- 1. THAT EACH GROUND OF APPEAL IS WITHOUT PREJUDICE TO E ACH OTHER. 2. THAT THE LD CIT(A) HAS ERRED IN NOT ALLOWING THE UNA BSORBED CARRIED FORWARD DEPRECIATION ON TECHNICAL GROUNDS AN D HAS NOT INTERPRETED THE PROVISIONS OF SECTION 139(3) OF THE IN COME TAX ACT, 1961. 3. THAT THE APPELLANT RESERVED THE RIGHT TO AMEND, ALTE R, VARY AND/OR ADD ANY OF THE GROUND OF APPEAL. PAGE 2 OF 4 ITA NO1398/DEL/2011 2. IT IS THE CONTENTION OF THE APPELLANT THAT UNABSOR BED DEPRECIATION OF EARLIER YEARS HAVE BEEN WRONGLY NOT ALLOWED TO BE CARRIED FORWARD BY THE LD CIT(A). IN SUPPORT OF THE ABOVE CONTENTIO N, VARIOUS CASE LAWS HAVE BEEN RELIED ON BY THE LD COUNSEL FOR THE ASSESSEE H E HAS ALSO RELIED ON BOARD;S INSTRUCTION F.NO.13/8/69-IT(A2) DAT ED 24.6.1969. 3. LD DR, ON THE OTHER HAND, HAS CONTENDED THAT THOU GH THE ASSESSING OFFICER ASKED THE ASSESSEE TO SHOW CAUSE AS TO WHY SU CH CLAIM OF CARRY FORWARD OF LOSSES SHOULD NOT BE DISALLOW ED, THE ASSESSEE DID NOT FILE ANY REPLY. NO DETAILS OF SUCH LOSS WAS ALSO FURNISHED. IT WAS, THEREFORE, CONTENDED THAT THE ASSESSING OFFICER WA S JUSTIFIED IN DISALLOWING THE ASSESSEES CLAIM AND THE LD CIT(A) WAS CO RRECT IN CONFIRMING THE SAME. 4. WE HAVE HEARD THE PARTIES AND PERUSED THE RECORD. IN PARA 5 OF THE LD CIT(A)S ORDER, HE HAS NOTED THE ARGUMENT OF T HE ASSESSEE THAT CARRIED FORWARD UNABSORBED DEPRECIATION SHOULD BE ALL OWED TO IT U/S 32(2) OF THE ACT. THE LD CIT(A) HAS NOT MET OUT THE ABOVE ARGUMENT OF THE ASSESSEE MERELY ON THE GROUND THAT DETAILS OF THE LO SS WAS NOT SPELT OUT BEFORE THE ASSESSING OFFICER. ACCORDING TO US, LD CIT(A) WAS NOT JUSTIFIED IN HOLDING SO. HE HAS POWER CO-TERMINUS WITH THAT OF THE ASSESSING OFFICER AND IF THERE WERE EVIDENCE ON RECORD TO JUSTIFY THE CLAIM OF THE ASSESSEE, HE SHOULD HAVE ADJUDICATED THE I MPUGNED ISSUE FROM THIS ANGLE. IN VIEW OF THE ABOVE, WE DEEM IT FI T TO SET ASIDE THE ORDER OF LD CIT(A) AND REMIT THE MATTER BACK TO HIS FILE WITH THE DIRECTION THAT THE DISPUTED ISSUE BE RE-DECIDED AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE AS ALSO THE EVIDENCE ON RECORD OF THE DEPARTMENT AND A FRESH ORDER BE PASSED AS PER LAW. PAGE 3 OF 4 ITA NO1398/DEL/2011 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. ORDER PRONOUNCED IN THE OPEN COURT ON THE 8TH DA Y OF JULY, 2011. SD/- SD/- (DIVA SINGH) (B.K. HALD AR) JUDICIAL MEMBER ACCOUNTANT MEMBER DT. 08.7.2011. HMS COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER (ITAT, NEW DELHI). DATE OF HEARING 6.7.2011 DATE OF DICTATION 6.7.2011 DATE OF ORDER SIGNED BY THE HON'BLE MEMBER. .7.2011 DATE OF ORDER SENT TO THE CONCERNED BENCH .7.2011 PAGE 4 OF 4 ITA NO1398/DEL/2011