Dr.S.M.Balaji, CHENNAI V. ACIT, CHENNAI

ITA 1654/CHNY/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 96275 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 20-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH
• Assessee Lawyers: V MUTHUKARUPPAN
• Keywords: Depreciation; Rectification of order
• Section: 143(3); 153A; 154

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , C B ENCH, CHENNAI . , ! # $ , % & BEFORE SHRI A.MOHAN ALANKAMONY ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER ./ I.T.A.NO.1654/MDS/2015 ( / ASSESSMENT YEAR: 2005-06) DR. S.M.BALAJI, 30/1, K.B. DASAN ROAD, TEYNAPET, CHENNAI-600 018. VS ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-I(1), CHENNAI-34. PAN: AAFPB8332B ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR. V.MUTHUKARUPPAN, C.A. /RESPONDENT BY : MR. A.V.SREEKANTH, JCIT /DATE OF HEARING : 23 RD SEPTEMBER, 2015 /DATE OF PRONOUNCEMENT : 30 TH OCTOBER, 2015 / O R D E R PER CHALLA NAGENDRA PRASAD, JM: THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-18, CHENNA I DATED 27.03.2015 FOR THE ASSESSMENT YEAR 2005-06. 2. THOUGH THE ASSESSEE HAS RAISED SEVERAL GROUNDS, THE CRUX OF THE ISSUE IS THAT COMMISSIONER OF INCOME TA X (APPEALS) ERRED IN CONFIRMING NON-ALLOWANCE OF DEPR ECIATION MADE BY THE ASSESSING OFFICER IN THE ASSESSMENT ORD ER UNDER SECTION 143(3) READ WITH SECTION 153A OF THE ACT. 2 ITA NO.1654/MDS/2015 3. COUNSEL FOR THE ASSESSEE SUBMITS THAT THE TRIBU NAL IN ITS ORDER DATED 10.06.2009 IN ITA NOS.2309 TO 2314/MDS/2008 IN ASSESSEES OWN CASE FOR THE ASSESS MENT YEARS 2000-01 TO 2004-05 AND 2006-07 WITH REGARD T O THE ISSUE OF ALLOWANCE OF DEPRECIATION HAD RESTORED THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO ALLOW APPROPRIATE DISCOUNT TO THE ASSESSEE AFTER TAKING I NTO CONSIDERATION ALL THE DEPRESSING FACTOR. COUNSEL S UBMITS THAT ASSESSING OFFICER PASSED ORDERS UNDER SECTION 153A READ WITH SECTION 143(3) READ WITH SECTION 254 DATED 18 .04.2012 FOR THE ASSESSMENT YEARS 2000-01 TO 2004-05 AND 20 06-07 TO GIVE EFFECT TO THE DIRECTIONS OF THE TRIBUNAL. S IMILARLY, FOR THE ASSESSMENT YEAR 2005-06, WHICH IS UNDER CONSID ERATION THE ASSESSING OFFICER PASSED AN ORDER UNDER SECTION 154 DATED 18.04.2012 TO GIVE CONTINUITY TO THE DIRECTIO NS ISSUED FOR THE ASSESSMENT YEAR 2006-07 AND ALLOWED 20% DIS COUNT ON THE VALUE OF THE UNDIVIDED SHARE OF LAND TOWARD S DEPRESSING FACTOR. COUNSEL SUBMITS THAT ASSESSEE F ILED APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEA LS) AGAINST THE ORDER UNDER SECTION 154 DATED 18.04.20 12 PASSED BY THE ASSESSING OFFICER FOR THE ASSESSMENT YEAR 3 ITA NO.1654/MDS/2015 2005-06 AND ALSO AGAINST ORDER PASSED UNDER SECTIO N 254 FOR THE ASSESSMENT YEARS 2001-02 TO 2004-05 AND 200 6-07 TO 2009-10 IN ALLOWING THE DEPRESSING FACTOR AT 20%. I T IS SUBMITTED THAT COMMISSIONER OF INCOME TAX (APPEALS) VIDE COMMON ORDER DATED 09.05.2013 ALLOWED DISCOUNT OF 50% TOWARDS DEPRESSING FACTOR AND THE ASSESSING OFFICE R HAS GIVEN EFFECT TO THIS ORDER OF THE COMMISSIONER OF I NCOME TAX (APPEALS) BY ORDER DATED 05.06.2013. 4. COUNSEL FOR THE ASSESSEE SUBMITS THAT COMMISSION ER OF INCOME TAX (APPEALS) IGNORING THE DIRECTIONS ALREAD Y GIVEN BY HIM IN HIS ORDER DATED 9.5.2013 IN THE PROCEED INGS UNDER SECTION 154 DATED 18.04.2012 REJECTED THE APPEAL O F THE ASSESSEE WITHOUT GIVING DEPRESSING FACTOR TO THE U NDIVIDED SHARE OF LAND AND CONFIRMED THE DISALLOWANCE OF DEPRECIATION. COUNSEL SUBMITS THAT THE ACTION OF T HE COMMISSIONER OF INCOME TAX (APPEALS) IS CONTRARY TO HIS OWN DECISION, WHO ALLOWED THE DEPRESSING FACTOR AT 50% BY ORDER DATED 9.5.2013. THEREFORE HE PLEADS THAT SIMILAR D IRECTION MAY BE GIVEN INCONFORMITY WITH THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) WHO DISPOSED O FF THE 4 ITA NO.1654/MDS/2015 APPEAL IN THE PROCEEDINGS UNDER SECTION 154 DATED 18.04.2012 PASSED BY THE ASSESSING OFFICER. 5. WE HAVE PERUSED THE ORDERS OF LOWER AUTHORITIES AND THE ORDER OF THE TRIBUNAL AND ORDER PASSED BY COMMI SSIONER OF INCOME TAX (APPEALS) DATED 9.5.2013. ON THE DEPR ESSING FACTOR OF UNDIVIDED SHARE OF LAND FOR THIS ASSESSM ENT YEAR I.E. 2005-06 IN THE PROCEEDINGS UNDER SECTION 154, THE COMMISSIONER OF INCOME TAX (APPEALS) BY ORDER DATED 9.5.2013 HELD AS UNDER:- 5. DURING THE COURSE OF APPEAL PREFERRED AGAINST TH IS ORDER, THE DECISION OF HONBLE ITAT IN THE APPELLANTS OWN CASE IN ITA NOS.2309 TO 2314/MDS/2008 DATED 10 TH JUNE, 2009 FOR THE ASSESSMENT YEARS 2000-01 TO 2004-05 AND 2006-07 WA S RELIED UPON. IN THE SAID ORDER, IN PARA 6 IN PAGES 2 & 3 H ONBLE ITAT STATED AS UNDER:- HAVING HEARD BOTH PARTIES, WE ARE INCLINED TO AGR EE WITH THE LEARNED COUNSEL FOR THE ASSESSEE. DEFINITELY UNDIVI DED SHARE IS A DEPRESSING FACTOR. AS SUCH, IT IS INCUMBENT ON TH E ASSESSING OFFICER TO ALLOW APPROPRIATE DISCOUNT FOR THE SAME. WE THEREFORE IN THE INTEREST OF JUSTICE SET ASIDE THE IMPUGNED O RDER AND RESTORE THIS ISSUE TO THE FILE OF THE ASSESSING OFF ICER WITH A DIRECTION TO ALLOW APPROPRIATE DISCOUNT TO THE ASSE SSEE AFTER TAKING INTO CONSIDERATION THE DEPRESSING FACTOR. THE LEARNED AR HAS ALSO SUBMITTED AT THAT POINT OF TIME CONTENDED AS BELOW:- 1. THE APPEALS RELATE TO THE ORDERS U/S.153A/ 143(3 ) R.W.S. 254 FOR THE ASSESSMENT YEARS 2000-01 TO 2009-10 PASSWED BY JCIT(OSD) CENTRAL CIRCLE, CHENNAI. 2. YOUR HONOUR HAS ALREADY PASSED AN ORDER DT. 15.1 0.2012 ON THE SAME ISSUE ON THE APPEAL FOR THE ASSESSMENT YEAR 2009-10 MADE BY THE APPELLANT AGAINST THE ORIGINAL ORDER PASSED U/S.143(3) R.W.S. 153A R.W.S. 254 BY THE AS SESSING OFFICER. IN THE ORDER YOUR GOODSELF HAD CONSIDERED THE RECTIFICATION ORDERS PASSED BY THE LEARNED ASSESSIN G OFFICER AND THE DEPRESSING FACTOR ON THE UDS OF LA ND WAS 5 ITA NO.1654/MDS/2015 ENHANCED FROM THE 20% ALLOWED BY THE LEARNED A.O. T O 50%. THE COPY OF THE ORDER IS ENCLOSED. 3. WE REQUEST THE COMMISSIONER OF INCOME TAX (APPEALS) TO CONSIDER THE ABOVE SUBMISSIONS AND FURTHER REQUEST THAT THE ORDER DATED 15.10.2012 PASSED BY YOUR GOODSEL VES BE ADOPTED FOR ALL THE ASSESSMENT YEARS. SUBMITTING THE ABOVE, HE HAD PLEADED THAT DEPRESSIN G FACTOR BEING PRACTICALLY 100%, IT MAY BE FIXED AT 75% AT THE LE AST. AFTER DUE CONSIDERATION OF THE ARGUMENTS, AND THE ORDER OF TH E HON'BLE ITAT THE DEPRESSING FACTOR WAS FIXED AT 50% IN THOSE PROCEED INGS. 6. THE LEARNED AR PRODUCED A COPY OF THIS ORDER DATED 15-10- 2012 FOR THE A.Y. 2009-10. HE SUBMITTED THAT THOUGH HE HAD PRAYED FOR DETERMINATION OF THE DEPRESSING FACTOR OF THE UDS AT LEAST 75%, THE ISSUE BEING IDENTICAL, IN ALL THESE APPEALS WHEREIN THE A.O. HAD DETERMINED THE DEPRESSING FACTOR AT 20%, THE DEPRES SING FACTOR MAY BE DETERMINED AT 50%, IN CONSONANCE WITH THIS ORDER. 7. I HAVE CONSIDERED THE FACTS OF THE CASE AS WELL AS THE ORDERS RELIED UPON. IN THE EARLIER ORDER REFERRED TO VIZ F OR ASSESSMENT YEAR 2009-10 AFTER ANALYSIS OF THE FACTS THE DEPRESSING FACTOR HAS BEEN DIRECTED TO BE ALLOWED AT 50% . FOLLOWING THE SAME IN ALL THESE APPEALS EXCEPT ASSESSMENT YEAR 2009-10, DEPRESSING FACTOR FOR THE UNDIVIDED SHARE OF THE LAND IS DIRECTED TO BE ALLOW ED AT 50%. FOR THE ASSESSMENT YEAR 2009-10 THE APPEAL IS DISMISSED AS BEING INFRUCTUOUS AS ALREADY IT HAS BEEN DECIDED. 6. THE COMMISSIONER OF INCOME TAX (APPEALS) HAVING ALREADY HELD THAT DEPRESSING FACTOR HAS TO BE ALLO WED AT 50% AND GIVEN DIRECTION ACCORDINGLY TO THE ASSESSING OF FICER IN THE PROCEEDINGS AGAINST 154 ORDER, THERE IS NO JUSTIFI CATION NOW IN THE PROCEEDINGS AGAINST 153A READ WITH SECTION 143(3) IN DISALLOWING THE DEPRECIATION ENTIRELY WITHOUT ALLO WING ANY DISCOUNT FOR DEPRESSING FACTOR. THE COMMISSIONER OF INCOME TAX (APPEALS) MIGHT HAVE OVERLOOKED THIS ASPECT OF THE 6 ITA NO.1654/MDS/2015 MATTER. IN THE CIRCUMSTANCES, WE DIRECT THE ASSESS ING OFFICER TO APPLY THE RATIO OF THE DECISION OF THE COMMISSIO NER OF INCOME TAX (APPEALS) DATED 9.5.2013 IN DIRECTING HI M TO ALLOW DEPRESSING FACTOR AT 50% FOR THE UNDIVIDED SHARE OF LAND FOR THE ASSESSMENT YEAR 2005-06 EVEN IN THE PROCEEDINGS UNDER SECTION 143(3) READ WITH SECTION 153A OF THE ACT. HOWEVER, WE MAKE IT CLEAR THAT THE DISCOUN T FOR DEPRESSING FACTOR FOR THE ASSESSMENT YEAR 2005-06 I N ANY PROCEEDINGS SHOULD NOT EXCEED 50%. IN OTHER WORDS, THERE SHOULD NOT BE DOUBLE ALLOWANCE FOR THE ASSESSMENT Y EAR 2005-06. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED WITH THE ABOVE OBSERVATIONS. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH OCTOBER, 2015. SD/- SD/- ( . ) ( ( *+ ) ( A.MOHAN ALANKAMONY ) ( CHALLA NAGENDRA PRASAD ) - / ACCOUNTANT MEMBER * - / JUDICIAL MEMBER * /CHENNAI, / /DATED 30 TH OCTOBER, 2015 SOMU 12 32 /COPY TO: 1. APPELLANT 2. RESPONDENT 3. 4 () /CIT(A) 4. 4 /CIT 5. 2 7 /DR 6. /GF .