Sri h L Suresh Kumar , Bangalore V. The Income TAx Officer ward-6(3)(3), Bangalore

ITA 1596/BANG/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 7171 (ITAT-BANGALORE)
• Duration Of Justice: 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 24-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: V SRINIVASAN
• Keywords: Depreciation; Opportunity of being heard
• Section: 32; 10; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC - C BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER IT A NOS. 1596 & 1597/BANG/2017 ASSESSMENT YEAR S : 2009 - 10 & 20 08 - 09 SHRI H.L. SURESH KUMAR, NO. 1136, 1 ST FLOOR, 2 ND MAIN, 2 ND BLOCK, BEL LAYOUT, VIDYARANYAPURA, BANGALORE 560 097. PAN: BGWPS 5332Q VS. THE INCOME TAX OFFICER, WARD 6 [3] [3], BANGALORE. APPELLANT RESPONDENT ASSESSEE BY : SHRI V. SRINIVASAN, ADVOCATE REVENUE BY : SHRI M. RAJASEKHAR, ADDL. CIT (DR) DATE OF HEARING : 2 9 . 1 1 .201 7 DATE OF PRONOUNCEMENT : 01 .1 2 .2017 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER; BOTH THESE APPEALS ARE FILED BY THE ASSESSEE WHICH ARE DIRECTED AGAINST THE COMBINED ORDER OF CIT(A)-6, BANGALORE DATED 31.01.2 017 FOR ASSESSMENT YEARS 2008-09 AND 2009-10. 2. BOTH THE APPEALS WERE HEARD TOGETHER AND ARE BEI NG DISPOSED OF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. THE GROU NDS RAISED ARE AS UNDER. GROUNDS RAISED FOR ASSESSMENT YEAR 2008-09 IN ITA N O. 1597/BANG/2017 1.THE ORDERS OF THE AUTHORITIES BELOW IN SO FAR AS THEY ARE AGAINST THE APPELLANT ARE OPPOSED TO LAW, EQUITY, WEIGHT OF EVI DENCE, PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE CASE. 2.THE LEARNED CIT[A] IS NOT JUSTIFIED IN UPHOLDING THE ASSESSMENT OF HIRE CHARGES RECEIVED BY THE APPELLAN T FROM M/S. KHADKESHWARA HATCHERIES PVT.LTD UNDER THE HEAD ITA NOS. 1596 & 1597/BANG/2017 PAGE 2 OF 4 'OTHER SOURCES' AND THEREBY DISALLOWING THE DEPRECI ATION OF RS. 10,00,963/- CLAIMED ON PLANT AND MACHINERY A ND STRUCTURES PROVIDED BY THE APPELLANT UNDER THE FACT S AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE. 3.WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED CIT[A ] IS NOT JUSTIFIED IN UPHOLDING THE DISALLOWANCE OF DEPRECIA TION AMOUNTING TO RS. 10,00,963/-CLAIMED BY THE APPELLAN T ON PLANT AND MACHINERY AND STRUCTURES LEASED OUT BY THE APPE LLANT TO M/S. KHADKESHWARA HATCHERIES PRIVATE LIMITED, WHICH IS ALSO ALLOWABLE U/S 57[III] OF THE ACT UNDER THE FACTS AN D IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE. 4.THE LEARNED CIT[A] IS NOT JUSTIFIED IN SUSTAINING THE ADDITION OF RS.4,00,000/- CONSIDERED AS UNEXPLAINED PAYMENTS MA DE BY THE APPELLANT WITHOUT APPRECIATING THAT THE ENTIRE PAYM ENTS MADE BY THE APPELLANT WERE RECORDED IN THE BOOKS OF ACCOUNTS AN D HENCE THE SAME CANNOT BE CONSIDERED AS UNEXPLAINED UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE. 5.FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING OF THE APPEAL, YOUR APPELLANT HUMBL Y PRAYS THAT THE APPEAL MAY BE ALLOWED AND JUSTICE RENDERED AND THE APPELLANT MAY BE AWARDED COSTS IN PROSECUTING THE A PPEAL AND ALSO ORDER FOR THE REFUND OF THE INSTITUTION FEES A SPART OF THE COSTS. GROUNDS RAISED FOR ASSESSMENT YEAR 2009-10 IN ITA N O. 1596/BANG/2017 1.THE ORDERS OF THE AUTHORITIES BELOW IN SO FAR AS THEY ARE AGAINST THE APPELLANT ARE OPPOSED TO LAW, EQUITY, W EIGHT OF EVIDENCE, PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE CASE. 2.THE LEARNED CIT[A] IS NOT JUSTIFIED IN UPHOLDING THE ASSESSMENT OF HIRE CHARGES RECEIVED BY THE APPELLAN T FROM M/S. KHADKESHWARA HATCHERIES PVT.LTD UNDER THE HEAD 'OTHER SOURCES' AND THEREBY DISALLOWING THE DEPRECI ATION OF RS. 18,68,656/- CLAIMED ON PLANT AND MACHINERY A ND STRUCTURES PROVIDED BY THE APPELLANT UNDER THE FACT S AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE. 3.WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED CIT[A ] IS NOT JUSTIFIED IN UPHOLDING THE DISALLOWANCE OF DEPRECIA TION AMOUNTING TO RS. 18,68,656/-CLAIMED BY THE APPELLAN T ON PLANT AND MACHINERY AND STRUCTURES LEASED OUT BY THE APPE LLANT TO M/S. KHADKESHWARA HATCHERIES PRIVATE LIMITED, WHICH IS ALSO ALLOWABLE U/S 57[III] OF THE ACT UNDER THE FACTS AN D IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE. 4.FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URGED AT THE ITA NOS. 1596 & 1597/BANG/2017 PAGE 3 OF 4 TIME OF HEARING OF THE APPEAL, YOUR APPELLANT HUMBL Y PRAYS THAT THE APPEAL MAY BE ALLOWED AND JUSTICE RENDERED AND THE APPELLANT MAY BE AWARDED COSTS IN PROSECUTING THE A PPEAL AND ALSO ORDER FOR THE REFUND OF THE INSTITUTION FEES A S PART OF THE COSTS. 3. IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT IN P ARA NO. 11 OF HIS ORDER, IT IS NOTED BY CIT (A) THAT IN RESPECT OF CASES FALLING U NDER CLAUSES (II) AND (III) OF SUB SECTION (2) OF SECTION 56, DEDUCTION U/S. 32 HAS TO BE ALLOWED. BUT IN THE NEXT PARA I.E. 12, HE HAS HELD THAT THE DEPRECIATION CAN NOT BE ALLOWED ON CHICKS. HE SUBMITTED THAT THIS NOTING OF CIT(A) THAT DEPRECIAT ION IS NOT ALLOWABLE ON CHICKS IS A TYPING MISTAKE. AT THIS JUNCTURE, THE BENCH W ANTED TO KNOW THE WORKING OF ASSESSEES CLAIM FOR DEPRECIATION. IN REPLY, HE SU BMITTED THAT NO SUCH WORKING WAS MADE AVAILABLE BEFORE THE AUTHORITIES BELOW. H E ALSO SUBMITTED THAT THE BALANCE SHEET AS ON 31.03.2008 IS AVAILABLE ON PAGE NO. 4 OF THE PAPER BOOK AND THE SAME FOR YEAR ENDING ON 31.03.2009 IS AVAIL ABLE ON PAGE NO. 16 OF PAPER BOOK. THE BENCH OBSERVED THAT ON PAGE NO. 4 OF THE PAPER BOOK, THE CONSOLIDATED AMOUNT OF DEPRECIATION IS CLAIMED BUT THE WORKING IS NOT AVAILABLE AS TO HOW MUCH FOR EACH ASSET IS BEING CLAIMED. SI MILARLY IN ASSESSMENT YEAR 2009-10, NO SUCH WORKING IS AVAILABLE. IT WAS ALSO SUBMITTED BY LD. AR OF ASSESSEE THAT IN THE INTEREST OF JUSTICE, THE MATTE R MAY BE RESTORED BACK TO THE FILE OF CIT(A) FOR FRESH DECISION AND IF IT IS DONE THEN THE ASSESSEE WILL PROVIDE COMPLETE WORKING OF DEPRECIATION CLAIMED FOR BOTH Y EARS. THE LD. DR OF REVENUE SUBMITTED THAT SUFFICIENT OPPORTUNITY WAS P ROVIDED BY AO AND CIT(A) AND THEREFORE, NO FURTHER OPPORTUNITY SHOULD BE PRO VIDED AND THE APPEALS OF THE ASSESSEE SHOULD BE DISMISSED. 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. I FIND THAT IN THE ABSENCE OF WORKING OF THE ASSESSEES CLAIM FOR DEPRECIATION, THE ISSUE RE GARDING ALLOWABILITY OF DEPRECIATION CANNOT BE EXAMINED AND DECIDED IN PROP ER MANNER. SUCH WORKING HAS NOT BEEN MADE AVAILABLE BEFORE THE AO, CIT(A) A ND BEFORE ME. BUT STILL IN THE INTEREST OF JUSTICE, I FEEL IT PROPER TO RESTOR E BACK THIS MATTER TO THE FILE OF CIT(A) FOR FRESH DECISION. I ORDER ACCORDINGLY. I WANT TO MAKE IT CLEAR THAT THE ASSESSEE HAS TO FURNISH COMPLETE WORKING IN RESPECT OF ASSESSEES CLAIM FOR DEPRECIATION IN BOTH THE YEARS AND THEREAFTER, THE CIT (A) SHOULD DECIDE THE ITA NOS. 1596 & 1597/BANG/2017 PAGE 4 OF 4 ISSUE AFRESH BY WAY OF A SPEAKING AND REASON ORDER AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. 5. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASS ESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- (ARUN KUMAR GARODIA) ACCOUNTANT MEMBER BANGALORE, DATED, THE 01 ST DECEMBER, 2017. /MS/ COPY TO: 1. APP ELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.