ACIT Circle - 12,kolkata, Kolkata V. M/s Selevel Media Services Pvt Ltd, Kolkata

ITA 1601/KOL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 87606 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 2 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2015
• Appeal Filed By: Department
• Bench Allotted: A
• Next Hearing Date: 09-10-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 02-11-2012
• Court: TRIBUNAL
• Department Lawyers: SANJAY ACIT
• Keywords: Depreciation
• Section: 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH A , KOLKATA [BEFORE & HON BLE SRI N.K.SAINI , A M & HON BLE SRI MAHAVIR SINGH, JM ] ITA NO S.1601 & 1602/KOL/2012 ASSESSMENT YEAR S : 2008 - 09 & 2009 - 10 ( A PPELLANT ) (RESPO NDENT) A.C.I.T., CIRCLE - 12, - VS - M/S. SELVEL MEDIA SERVICES (P)LTD. KOLKATA KOLKATA (PAN: AADCS 7951 G) FOR THE APPELLAN T SHRI SANJAY, ACIT FOR THE RESPONDENT NONE (EXPARTE) DATE OF HEARING : 23 .01.2015 DATE OF P RONOUNCEMENT : 23 .01.2015. ORDER PER SHRI N.K.SAINI , AM THESE TWO APPEAL S BY THE DEPARTMENT ARE DIRECTED AGAINST SEPARATE ORDER S EACH DATED 20.07.2012 OF L D. C.I.T - (A) - XII , KOLKATA AND PERTAIN TO A.YR S . 2008 - 09 AND 2009 - 10 RESPECTIVELY. 2. DURING THE C OURSE OF HEARING NOBODY WAS PR ESENT ON BEHALF OF THE ASSESSEE. NOTICE FOR HEARING WAS SENT TO THE ASSESSEE THROUGH RPAD WHICH HAS NOT YET BEEN RETURNED. SO IT IS PRESUMED THAT NOTICE OF HEARING HAS BEEN SERVED ON THE ASSESSEE . ACCORDINGLY THE APPEALS ARE DECIDED EXPARTE QUA THE ASSESSEE ON MERITS AFTER HEARING THE LD. DR. 3. FIRST WE WILL DEAL WITH THE APPEAL IN ITA NO.1602/KOL/2012 FOR A.YR.2009 - 10. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL : 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD.CIT(A) WAS JUSTIFIED IN ALLOWING THE DEDUCTION OF RS.98,66,819/ - U/S 80IA IN RESPECT OF REVENUE GENERATED FROM THE CONSTRUCTION AND MAINTENANCE OF BUS SHELTER WHEN THE SAME DO NOT QUALIFY AS INFRASTRUCTURAL FACILITY AS PER EXPLANATION TO SEC. 80IA(4) OF THE I.T.ACT, 1961. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN ALLOWING THE CLAIM OF DEDUCTION OF RS.98,66,819/ - MADE U/S 80IA IGNORING THE DECISION ITA NO S.1601&1602/KOL/2012 M/S. SELVEL MEDIA SERVICES PVT.LTD ., A.YR S . 2008 - 09 & 2009 - 10 2 OF THE HON BLE SUPREME COURT IN THE CASE OF LIBERTY INDI A VS CIT 183 TAXMAN 349 (SC) AND THE ORDER OF THE ITAT, CHENNAI NIN THE CASE OF L&T TRANSPORTATION INFRASTRUCTURE LTD. VS. ITO )ITA NO.1680/MDS/10 - A.Y.2007 - 08. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN HOLDING THAT THE CASE IS COVERED BY THE ORDER OF THE ITAT IGNORING THE FACT THAT THE AFORESAID DECISIONS OF THE HON BLE SUPREME COURT AND THE ITAT, CHENNAI WERE PASSED SUBSEQUENT TO THE ORDER OF THE ITAT PASSED IN THE CASE OF THE ASSESSEE FOR A.Y. 2005 - 06. 4. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD.CIT(A) WAS JUSTIFIED IN TREATING THE HOARDING AS TEMPORARY STRUCTURE INSTEAD OF PERMANENT STRUCTURE AND ALLOWING DEPRECIATION AT 15% INSTEAD OF 100%. 5. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. CIT(A)WAS JUSTIFIED IN ALLOWING NON DEDUCTION OF TDS ON U/S 194C INSTEAD OF 1941. 4. GROUND NOS. 1,2 AND 3 ARE CO - RELATED WHICH RELATE TO THE DEDUCTION U/S 80IA OF THE I.T.ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ). 5 . THE FAC TS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME ON 30.09.2009 DECLARING AN INCOME OF RS. 91,71,637/ - . THE CASE WAS SELECTED FOR SCRUTINY. AO NOTED THAT ASSESSEE HAD CLAIMED DEDUCTION U/S 80IA OF THE ACT AMOUNTING TO RS.98,66,819 / - AGAINST REVENUE GENERATED FROM TOILET BLOCKS AND FOOT BRIDGES. HE ALSO NOTED THAT FOR A.YR.2005 - 06 ON THE SAME ISSUE BY APPLYING THE RATIO OF JUDGEMENT IN THE CASE OF M/S.VANTAGE ADVERTISING P.LTD. WHERE THE BUS SHELTERS WERE CONSIDERED PART OF THE ROAD A ND HENCE INFRASTRUCTURE, ITAT HAD DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. HOWEVER, T HE A.O. DID NOT ALLOW THE CLAIM OF THE ASSESSEE BY FOLLOWING THE DECISION OF THE ITAT , CHENNAI IN THE CASE OF M/S. L&T TRANSPORTATION INFRA STRUCTURE LIMITED VS ITO, CC.II ( 4), CHE NNAI IN ITA NO.1680/MDS./10 ORDER DATED 22.08.2011. 5.1. B EING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO LD. CIT(A), WHO DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY OBSERVING THA T BESIDES THE DECISION OF ITAT I N THE ASSESSEE S OWN CASE , THE IDENTICAL ISSUE IN THE CASE OF A SSESSEE S SISTER CONCERN VIZ. VANTAGE ADVERTISING PVT. LTD. , HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE. 6. NOW THE DEPARTMENT IS IN APPEAL. THE LD. DR ALTHOUGH STRONGLY S UPPORTED THE ORDER OF THE AO , HOWEVER, COULD NOT CONTROVERT THIS FACT THAT FOR A.YR.2005 - 0 6 THE ISSUE HAS BEEN DECIDED BY ITAT IN FAVOUR OF THE ASSESSEE IN ASSESSEE S OWN CASE IN ITA NO S.1601&1602/KOL/2012 M/S. SELVEL MEDIA SERVICES PVT.LTD ., A.YR S . 2008 - 09 & 2009 - 10 3 ITA NO.1065/KOL/2008 VIDE ORDER DATED 31.07.2009 AND THE FACTS FOR THE YEAR UNDER CONSIDERATION ARE S IMILAR TO THE FACTS INVOLVED IN THE SAID ASSESSMENT YEAR 2005 - 06 . THEREFORE WE DO NOT SEE ANY INFIRMITY IN THE ORDER OF LD.CIT(A) ON THIS ISSUE. ACCORDINGLY WE DO NOT SEE ANY MERIT IN THIS APPEAL OF THE DEPARTMENT. 7. VIDE GROUND NO.4 THE GRIEVANCE OF THE DEPARTMENT RELATES TO THE DELETION OF ADDITION MADE BY THE AO ON ACCOUNT OF DEPRECIATION. 8. THE FACTS RELATING TO THIS ISSUE IN BRIEF ARE THAT THE AO CONSIDERED THE HOLDINGS AS PERMANENT STRUCTURE AND DID NOT ALLOW 100% DEPRECIATION AMOUNTING TO RS.1,39,80,376/ - CLAIMED BY THE ASSESSEE. WHEN THE ASSESSEE CARRIED TH E MATTER TO LD. CIT(A) , HE ALLOWED THE CL AIM OF THE ASSESSEE , BY OBSERVING THA T THIS ISSUE WAS COVERED IN FAVOUR OF THE ASSESSEE IN ASSESSEE S OWN CASE BY THE DECISION OF ITAT IN ITA NO.1065/KOL/2008 (SUPRA) 9. NOW THE DEPARTMENT IS IN APPEAL. HOWEVER, THE LD. DR FAIL ED TO BRING ANY MATERIAL ON RECORD IN CONTRAVENTION OF THE DECISION TAKEN BY THE LD. CIT(A) I.E. THE ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE IN ASSESSEE S OWN CASE BY ITAT FOR A.YR.2005 - 06 IN ITA NO.1065/KOL/2008 (SUPRA) . WE, THEREFORE DO NOT SEE ANY MERI T ON THIS ISSUE OF THE DEPARTMENTAL APPEAL. 10. VIDE GROUND NO.5 THE GRIEVANCE OF THE DEPARTMENT RELATES TO THE ACTION OF THE LD. CIT(A) IN ALLOWING T HE DEDUCTION OF TDS U/S 1 94C INSTEAD OF 194 I OF THE ACT AS DIRECTED BY THE AO. 11. THE FACTS RELATING TO THIS ISSUE IN BRIEF ARE THAT THE ASSESSEE HAD DEDUCTED TDS @2% U/S 194C OF THE ACT ON AN AMOUNT OF RS.17,81,85,502/ - . AO WAS OF THE VIEW THAT ON PAYMENTS TOWARDS THESE , TDS WAS REQUIRED TO BE DEDUCTED @10% U/S 194 I OF THE ACT AND NOT U/S 194C OF THE ACT. HE DISALLOWED A SUM OF RS.17,60,71 ,247/ - . (VALUE FOR PAYME NTS MORE THAN RS.1,20,000/ - ) ON ACCOUNT OF LOWER DEDUCTION OF TDS. ITA NO S.1601&1602/KOL/2012 M/S. SELVEL MEDIA SERVICES PVT.LTD ., A.YR S . 2008 - 09 & 2009 - 10 4 12. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A), WHO ALLOWED THE CLAIM OF THE ASSESSEE BY FOLLOWING THE DECISION OF ITAT IN THE CASE OF SISTER CONCERN OF THE ASSESSEE I.E. M / S. SELVEL ADVERTISING PVT. LTD. IN ITA NO.820/KOL/2008 ORDER DATED 1 1.12.2007 AND IN THE CASE OF M R . S.K.TEKRIWAL IN ITA NO.1135/KOL/2010 FOR A.YR.2007 - 08 ORDER DATED 21.10.2011. 13. NOW THE DEPARTMENT IS IN APPEAL. DURING THE COURSE OF HEARING THE LD. DR AL THOUGH SUPPORTED THE ORDER OF AO , BUT COULD NOT CONTROVERT THE FINDINGS GIVEN BY THE LD. CIT(A) THAT THE ISSUE IS SQUARELY COVERED BY THE EARLIER DECISION OF ITAT IN THE CASE OF ASSESSEE S SISTER CONCERN I.E. M/S. SELVEL ADVERTISING PVT. LTD.. WE THEREFORE DO NOT SEE ANY VALID GROUND TO INTERFER E WITH THE FINDINGS GIVEN BY THE LD. CIT(A). 14. NOW WE WILL DEAL WITH THE ISSUE IN ITA NO.1601/KOL/2012. THE ONLY GRIEVANCE OF THE DEPARTMENT IN THIS APPEAL RELATES TO THE ACTION OF THE LD. CIT(A) IN ALLOWING THE C LAIM OF DEDUCTION U/S 80IA OF THE ACT. 15. IT IS NOTICED THAT T HE FACTS FOR THIS A.YR. ARE IDENTICAL WITH THE FACTS IN A.YR.2009 - 10 WHICH WE HAVE ALREADY A DJUDICATED IN THE FORMER PART OF THIS ORDER. THE ONLY DIFFERENCE FOR THIS ISSUE IN THE YEAR UNDER CONSIDERATION I.E. A.YR. 2008 - 09 AND THE SUBSEQUENT YEAR I.E. A.YR.200 9 - 10 , IS IN THE AMOUNT OF DEDUCTION CLAIMED BY THE ASSESSEE U/S 80IA OF THE ACT OTHERWISE ALL OTHER FACTS ARE IDENTICAL. THEREFORE OUR FINDINGS GIVEN IN THE FORMER PART OF THIS ORDER SHALL APPLY MUTATIS MUTANDIS FOR THIS YEAR ALSO. 16. IN THE RESULT BOTH THE APPEALS OF THE DEPARTMENT ARE DISMISSED. O RDER PRONOUNCE D IN THE OPEN COURT ON 23 .01.2015. SD/ - SD/ - [ MAHAVIR SINGH ] [ N.K.SAINI ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE : 23 .01.2015. R.G.(.P.S.) ITA NO S.1601&1602/KOL/2012 M/S. SELVEL MEDIA SERVICES PVT.LTD ., A.YR S . 2008 - 09 & 2009 - 10 5 COPY OF THE ORDER FORWARDED TO: 1 . M/S. SELVEL MEDIA SERVICES PVT. LTD., 10/1G, DIAMOND HARBOUR RO AD, KOLKATA - 700027. 2 A.C.I.T., CIRCLE - 12, KOLKATA. 3 . CIT(A) - XII , KOLKATA 4. CIT - KOLKATA CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY, BY ORDER, ASST. REGISTRAR , IT AT, KOLKATA BENCHES