Deputy Commissioner of Income-tax, V. Mercedes - Benz India Pvt. Ltd., Pune

ITA 1411/PUN/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7855 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 1 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 30-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMOL KAMAT
• Keywords: Depreciation; Unabsorbed depreciation
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUN E . , , , BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AW ASTHY, JM . / ITA NO. 1411/PUN/2016 / ASSESSMENT YEAR : 2006-07 DCIT, CIRCLE-9, PUNE ....... / APPELLANT / V/S. MERCEDEZ BENZ INDIA PVT. LTD., E-3, MIDC CHAKAN, PHASE-III, CHAKAN INDUSTRIAL AREA, KURULI & NIGHOJE, TAL. KHED, PUNE 415 501 PAN : AABCM1789L / RESPONDENT ASSESSEE BY : SHRI RAJENDRA AGIWAL REVENUE BY : SHRI AMOL KAMAT, CIT-DR / DATE OF HEARING : 13.08.2018 / DATE OF PRONOUNCEMENT : 14.08.2018 / ORDER PER D. KARUNAKARA RAO, AM : THIS APPEAL FILED BY THE REVENUE IS AGAINST THE ORDER OF CIT(A)-6, PUNE, DATED 30-03-2016 FOR THE A.Y. 2006-07. 2. GROUNDS RAISED BY THE REVENUE READ AS UNDER : 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW, THE LD.CIT(A) WAS JUSTIFIED IN NOT REJECTING THE AS SESSEES CLAIM OF CARRY FORWARD AND SET OFF OF THE UNABSORBED DEPRECIATION PERTAINI NG TO A.Y. 1996-97 OF RS.1,61,05,488/- AND A.Y. 1997-97 OF RS.5,99,11,218 /- IN 2006-07. 2. THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR ALTE R THE ABOVE GROUNDS OF APPEAL. 2 ITA NO. 1411/PUN/2016 MERCEDES BENZ INDIA PVT. LTD., 3. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ISSUE RAISED BY THE REVENUE RELATES TO THE REJECTION OF CLAIM OF CARRY FORWAR D AND SET OFF OF UNABSORBED DEPRECIATION. FURTHER, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE PRESENT APPEAL ARISES FROM THE FRESH ASSESSMENT ORDER PASSED U/S.263 R.W.S. 143(3) OF THE ACT. IN THIS REGARD, LD . COUNSEL FILED COPY OF THE ORDER OF TRIBUNAL VIDE ITA NO.1203/PUN/2013 DECIDED ON 31-07-2015 AND SUBMITTED THAT THE SAID REVISION ORDER OF THE CIT U/S .263 OF THE ACT STAND QUASHED. BRINGING OUR ATTENTION TO THE CONTENTS OF PARA NO.8 TO 10, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE SAID REVISION ORDER WAS DECIDED IN FAVOUR OF THE ASSESSEE WHEREBY THE VALIDITY OF THE ORD ER OF CIT WAS DECIDED AGAINST THE REVENUE. CONSIDERING THE SAME, LD. COUNSEL SU BMITTED THAT THE FRESH ASSESSMENT ORDER PASSED BY THE AO DOES NOT HAV E LEGS TO STAND. CONSEQUENTLY, THE APPEAL IS REQUIRED TO BE DECIDED IN FAVO UR OF THE ASSESSEE AND AGAINST THE REVENUE. 4. WE HEARD BOTH THE SIDES AND PERUSED THE ORDER OF THE REVENUE. W E FIND WHILE THE ORDER OF TRIBUNAL IS DATED 31-07-2015, THE FRESH ASSESSMENT ORDER IS DATED 28-03-2014. THE ORDER OF CIT(A) ORDER BEING DAT ED 30-03-2016 IS SUBSEQUENT TO THE SAID ORDER OF THE TRIBUNAL. THE CIT(A) CONSIDERED THE SAID ORDER OF THE TRIBUNAL VIDE THE DISCUSSION IN PARA NO.2.1 OF H IS ORDER AND HELD THAT THE FRESH ASSESSMENT ORDER PASSED BY THE AO BEC OMES INFRUCTUOUS. FOR THE SAKE OF COMPLETENESS OF THIS ORDER, WE REPRODUCE THE SAID FINDING GIVEN BY THE CIT(A) HERE AS UNDER : 2.1 THE ASSESSMENT ORDER WAS REVISED BY THE CIT US /.263(1) HOLDING THAT THE AO HAS WRONGLY ALLOWED THE SET OFF OF UNABSORBE D DEPRECIATION PERTAINING TO A.Y. 1996-97 & 97-98 IN THE ORIGINAL ASSESSMENT ORD ER IN VIEW OF THE PROVISIONS OF SEC.32 AS APPLICABLE DURING THE PERIOD A.Y. 96-9 7 TO A.Y. 2001-02. THE AO GAVE EFFECT TO THE CIT(A)S ORDER AND ADDED BACK TH E UNABSORBED DEPRECIATION OF A.Y. 96-97 & 97-98 AND ARRIVED AT THE ASSESSED INCO ME OF RS.36,88,31,370/- VIDE ORDER DTD 28/3/2014. 3 ITA NO. 1411/PUN/2016 MERCEDES BENZ INDIA PVT. LTD., 2.2 THE COMPANY FILED APPEAL AGAINST THE ORDER U/S. 263(1) PASSED BY THE CIT-V, PUNE. THE ITAT A BENCH, PUNE VIDE ORDER D TD 31/7/2015 IN ITA NO.1203/PN/2013 FOR A.Y. 2006-07 HELD THAT THERE IS NO INFIRMITY IN THE ASSESSMENT ORDER PASSED BY THE AO ALLOWING THE ASSE SSEE TO CARRIED FORWARD UNABSORBED DEPRECIATION FOR A.Y. 96-97 & 97-98 TO B E SET OFF AGAINST THE PROFITS OF THE ASSESSEE FROM THE BUSINESS FOR THE A.Y. 2006 -07. 2.3 DURING THE COURSE OF APPELLANT PROCEEDINGS, AR MR. RAJENDRA AGIWAL, CA APPEARED AND FILED POWER OF ATTORNEY. HE MADE WRIT TEN SUBMISSIONS AND FILED COPY OF THE ITAT ORDER SETTING ASIDE THE 263(1) ORD ER PASSED BY THE CIT-V, PUNE. AS THE 263(1) ORDER HAS BEEN SET ASIDE, THE CONSEQU ENTIAL ASSESSMENT ORDER PASSED BY THE AO WITH REGARD TO THE ISSUES DEALT IN THE 263(1) ORDER CANNOT BE VALID IN THE EYES OF THE LAW. THUS THE ASSESSMENT ORDER PASSED IN CONSEQUENCE TO THE 263(1) ORDER BECOMES INFRUCTUOUS. FROM THE ABOVE, IT IS EVIDENT THAT THE CIT(A) ALLOWED THE APPEAL OF THE ASSESSEE CONSIDERING THE FACT THAT THE REVISION ORDER U/ S.263 WAS DECIDED IN FAVOUR OF THE ASSESSEE. THUS, WE ARE OF THE OPINION THAT THE ORDER OF CIT(A) IS FAIR AND REASONABLE AND IT DOES NOT CALL FOR ANY INTERFEREN CE. ACCORDINGLY, THE SOLITARY GROUND RAISED BY THE REVENUE IS DISMISSED. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON 14 TH DAY OF AUGUST, 2018. SD/- SD/- ( /VIKAS AWASTHY) ( . / D. KARUNAKARA RAO ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; / DATED : 14 TH AUGUST, 2018. SATISH # # # # / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT (APPEALS)-6, PUNE. 4. THE PR. CIT-5, PUNE. 5. , , , / DR, ITAT, A BENCH, PUNE. 6. / GUARD FILE. / BY ORDER, // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE.