J.C.I.T., (OSD),Circle-6(1), Kolkata V. M/s Universal Cables Limited, Kolkata

ITA 1461/KOL/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 5416 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 08-09-2020
• Assessment Year: 2014-2015
• Appeal Filed On: 13-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAYANTA KHANGRA
• Keywords: Depreciation; Additional depreciation; Earning of tax free income; Proportionate interest
• Section: 143(3); 14A; 32(1)(iia); 32

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A (VIRTUAL COURT HEARING), BENCH KOLKATA BEFORE SHRI J. SUDHAKAR REDDY, AM & SHRI S. S. GODARA, JM ./I.T.A NO.1461/KOL/2019 ( [ [ / ASSESSMENT YEAR: 2014-15) JCIT(OSD), CIRCLE-6(1), KOLKATA VS. M/S. UNIVERSAL CABLES LIMITED 9/1, R. N. MUKHERJEE ROAD, KOL-1. ./ ./PAN/GIR NO.: AAACU3547P (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI JAYANTA KHANGRA, JCIT RESPONDENT BY : NONE / DATE OF HEARING : 08/09/2020 /DATE OF PRONOUNCEMENT : 30/09/2020 / O R D E R PER SHRI S. S. GODARA: THIS REVENUES APPEAL FOR ASSESSMENT YEAR 2014-15 ARISES AGAINST THE COMMISSIONER OF INCOME TAX (A) - 2, KOLKATAS ORDER DATED 01.02.2019 PASSED IN CASE NO.10403/CIT(A)-2/2017-18 INVOLVING PROCEEDINGS U/S 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. CASE CALLED TWICE. NONE APPEARS AT ASSESSEES BEHEST. IT IS ACCORDINGLY PROCEEDED EX PARTE. 2. IT EMERGES AT THE OUTSET THAT THIS REVENUES APPEAL SUFFERS FROM 46 DAYS DELAY IN FILING. IT IS PLEADED IN THE CONDONATION PETITION/AFFIDAVIT DATED 13.06.19 THAT THE RELEVANT FILE/PAPERS WERE NOT AVAILABLE WITH THE CONCERNED AUTHORITIES. ALL THESE SOLEMN AVERMENTS HAVE GONE UNREBUTTED FROM THE ASSESSEE SIDE. HONBLE APEX COURT IN COLLECTOR, LAND ACQUISITION VS. MST . KATJI & ORS [1987] 167 ITR 0471 (SC) HELD LONG BACK THAT THE CAUSE OF SUBSTANTIAL JUSTICE PREVAILS OVER ALL TECHNICAL ASPECTS. WE THUS TREAT THIS 46 DAYS DELAY IN FILING AS NEITHER INTENTIONAL NOR DELIBERATE BUT ON ACCOUNT OF COMMUNICATION GAP BETWEEN DIFFERENT AUTHORITIES AT DEPARTMENTAL LEVEL. THUS APPEAL IS TAKEN UP FOR ADJUDICATION ON MERITS THEREFORE. I.T.A NO.1461/KOL/2019 M/S. UNIVERSAL CABLES LIMITED PAGE | 2 3. THE REVENUES FORMER SUBSTANTIVE GROUND CHALLENGES CORRECTNESS OF THE CIT(A)S ACTION REVERSING ASSESSMENT FINDINGS DISALLOWING ASSESSEES ADDITIONAL DEPRECIATION CLAIM OF RS.1,35,64,743/- ITS PLANT AND MACHINERY ALLEGED TO HAVE BEEN PUT TO USE FOR A PERIOD OF LESS THAN 180 DAYS DURING THE RELEVANT PREVIOUS YEAR. THE CIT(A)S DETAILED DISCUSSION TO THIS EFFECT READS AS UNDER: I HAVE CONSIDERED THE GROUNDS OF APPEAL, STATEMENT OF FACTS AND SUBMISSION OF THE AUTHORIZED REPRESENTATIVE OF THE APPELLATE COMPANY AS WELL AS THE ORDER OF THE ASSESSING OFFICER FRAMED IN THE LIGHT OF THE MATERIALS AVAILABLE ON RECORD BEFORE THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS. THE AR OF THE APPELLATE HAS SUBMITTED THAT THE SECOND AND THIRD GROUNDS ARE AGAINST REJECTION OF THE ASSESSEE'S CLAIM FOR 50% INITIAL DEPRECIATION UNDER SECTION 32(1)(IIA) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'THE ACT') AMOUNTING TO RS.1,35,64,743/- IN RESPECT OF NEW PLANT AND MACHINERY PURCHASED AND INSTALLED IN THE PRECEDING YEAR BUT PUT TO USE FOR A PERIOD OF LESS THAN 180 DAYS IN THAT YEAR. LN VIEW OF THE SECOND PROVISO TO SECTION 32(1) OF THE ACT, FOR THE ASSESSMENT YEAR 2013-14, THE ASSESSEE CLAIMED ONLY 50% INITIAL DEPRECIATION AND THE REMAINING 50% WAS CLAIMED IN THE ASSESSMENT YEAR 2014-15. THE ASSESSING OFFICER DISALLOWED THE CLAIM ON THE GROUND THAT THE CLAIM WAS NOT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 32 OF THE ACT. THE AR OF THE APPELLATE HAS FURTHER SUBMITTED THAT THE IS COVERED IN FAVOUR OF THE ASSESSEE BY AN ORDER DATED JANUARY 14, 2015 PASSED BY THE ITAT FOR THE ASSESSMENT YEAR 2007-08 (PARAGRAPHS 2-4, PAGES 1-3) AND AN ORDER DATED FEBRUARY 27, 2015 FOR THE ASSESSMENT YEARS 2008- 09 AND 2009-10 (PARAGRAPHS 2-5, PAGES 6-9). COPIES OF THE SAID ORDERS DATED JANUARY 14, 2015 AND FEBRUARY 27, 2015 ARE ANNEXED AT PAGE NO. 1 TO 26 OF PAPER BOOK. FURTHER, IN ASSESSEES APPEALS FOR SUBSEQUENT ASST. YEARS 2010-11, 2011-12 AND 2012-13 BEFORE CITA)-17, KOLKATA, THE CIT(A) FOLLOWING THE ABOVE DECISION OF ITAT DECIDED THE ISSUE IN FAVOUR OF ASSESSEE. COPIES OF THE SAID ORDERS DATED 29.07.2016, 05.08.2016 AND 08.02.2018 ARE ANNEXED AT PAGE NO. 41 TO 82 (PP 43, PP 54, & PP 67 RESPECTIVELY) OF PAPER BOOK. THE DECISIONS OF CIT(APPEAL)-17, KOLKATA FOR ASST. YEARS 2010-11 AND 2011-12 HAVE SINCE BEEN UPHELD BY THE 1TAT 'A' BENCH, KOLKATA VIDE PARA 5 OF ORDER DT. 14.02.2018. A COPY OF ORDER IS ANNEXED HERETO. I FIND THAT THE GROUNDS OF APPEAL ARE ALREADY COVERED IN FAVOUR OF THE APPELLANT IN ITS OWN CASE BOTH BY ITAT AND CIT(A) IN VARIOUS PAST CASES. BY FOLLOWING THE SAME, THE A.O IS DIRECTED TO DELETE THE ADDITION. THIS GROUND OF APPEAL IS ALLOWED. 4. LEARNED DEPARTMENTAL REPRESENTATIVE FAILS TO DISPUTE THAT THE CIT(A) HAS PLACED RELIANCE UPON THIS TRIBUNALS COORDINATE BENCHS ORDERS (SUPRA) IN ASSESSMENT YEAR 2010-11 AND 2011-12 ON THE VERY ISSUE WHILST DELETING THE IMPUGNED DISALLOWANCE COUPLED WITH THIS, YET ANOTHER COORDINATE BENCH IN DEPARTMENTAL APPEAL ITA NO.1055/KOL/2018 FOR ASSESSMENT YEAR 2012-13 DECIDED ON 22.11.2019 I.T.A NO.1461/KOL/2019 M/S. UNIVERSAL CABLES LIMITED PAGE | 3 HAS ADOPTED THE JUDICIAL CONSISTENCY IN DECLINING REVENUES IDENTICAL GRIEVANCE. ITS PLEADINGS ARE FAIR ENOUGH IN NOT PINPOINTING ANY DISTINCTION ON FACT AND LAW IN ALL THESE ASSESSMENT YEARS QUA THIS ISSUE OF ADDITIONAL DEPRECIATION. WE THEREFORE REJECT THE REVENUES INSTANT FORMER SUBSTANTIVE GROUND FOR THIS PRECISE REASON ALONE. 5. NEXT COMES THE REVENUES LATTER SUBSTANTIVE GRIEVANCE SEEKING TO REVIVE SECTION 14A R.W.R 8D(2)(III) PROPORTIONATE INTEREST AND ADMINISTRATIVE EXPENDITURE DISALLOWANCE(S) OF RS.2,70,00,000/- AND 25,52,000/-; AGGREGATING TO RS.2,95,52,000/- MADE IN THE COURSE OF ASSESSMENT AND RESTORED BACK TO THE ASSESSING OFFICER FOR EXAMINING THE ASSESSEES FACTUAL CLAIM NOT TO HAVE UTILIZED ANY INTEREST BEARING FUNDS FOR MAKING THE EXEMPT INCOME YIELDING INVESTMENTS QUA THE FORMER LIMB FOLLOWED BY FURTHER DIRECTIONS TO TAKE INTO ACCOUNT ONLY THE EXEMPT INCOME YIELDING INVESTMENTS; RESPECTIVELY. THE CIT(A) HAS ADMITTEDLY GONE BY THE TRIBUNALS FINDINGS IN EARLIER ASSESSMENT YEAR(S) IN TUNE WITH YET ANOTHER COORDINATE BENCHS DECISION IN REI AGRO LTD. VS. DCIT 144 ITD 141 (KOL) AS UPHELD IN HONBLE JURISDICTIONAL HIGH COURT IN G. A. NO. 3581 OF 2013 TO THIS EFFECT. LEARNED DEPARTMENTAL REPRESENTATIVE FAILS TO REBUT THIS CLINCHING FACT THAT THE CIT(A) HAS ADOPTED JUDICIAL CONSISTENCY WHEREIN THE TWIN CLINCHING FACTUAL ISSUES HAVE BEEN RESTORED BACK TO ASSESSING OFFICER FOR FACTUAL VERIFICATION QUA THE CORRESPONDING FACTS AND FIGURES ONLY. WE THEREFORE SEE NO MERIT IN THE INSTANT LATTER SUBSTANTIVE GROUND AS WELL. 6. THIS REVENUES APPEAL IS DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 30.09.2020. SD/- ( J. SUDHAKAR REDDY ) SD/- (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER /KOLKATA; / DATE:30/09/2020 RS I.T.A NO.1461/KOL/2019 M/S. UNIVERSAL CABLES LIMITED PAGE | 4 / COPY OF THE ORDER FORWARDED TO : TRUE COPY BY ORDER ASSISTANT REGISTRAR, I.T.A.T, KOLKATA BENCHES, KOLKATA . 1. THE APPELLANT- JCIT(OSD), CIRCLE-6(1), KOLKATA 2. THE RESPONDENT- M/S. UNIVERSAL CABLES LIMITED 3. ( ) / THE CIT(A), KOLKATA [SENT THROUGH EMAIL] 4. / CIT 5. , , / DR, ITAT, KOLKATA [SENT THROUGH EMAIL] 6. [ / GUARD FILE.