SLIVER SPARK APPAREL LIMITED, MUMBAI V. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 8(1), MUMBAI

ITA 18/MUM/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 0207 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 11 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2012-2013
• Appeal Filed On: 03-01-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SRINIVAS BOTTA
• Assessee Lawyers: KUNAL PANDEY
• Keywords: Depreciation; Competent authority; Condonation of delay
• Section: 153A; 144C; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES G , MUMBAI BEFORE S HRI RAJESH KUMAR (AM ) AND SHRI RAM LAL NEGI (JM) ITA NO. 5771/MUM/2017 ASSESSMENT Y EAR: 2010 - 11 ITA NO. 5772/MUM/2017 ASSESSMENT Y EAR: 2011 - 12 ITA NO. 5773/MUM/2017 ASSESSMENT Y EAR : 2009 - 10 & ITA NO. 18/MUM/2018 ASSESSMENT Y EAR: 2012 - 13 SILVER SPARK APPAREL LTD., GROUND FLOOR, NEW HIND HOUSE, NAROTTAM MORARJEE MARG, BALLARD ESTATE, MUMBAI - 400001 PAN: AACCR1288G VS. THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 44, (NOW KNOWN AS DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 8(1), MUMBAI), 6 TH FLOOR, AAYAKAR BHAVAN, MUMBAI - 400020 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI KUNAL PANDEY (AR) REVENUE BY : SHRI SRINIVAS BOTTA ( CIT D R) DATE OF HEARING: 09/12 /2020 DATE OF PRONOUNCEMENT: 09 / 12 /2020 O R D E R PER BENCH THE ASSESSEE HAS FILED THE CAPTIONED APPEALS AGAINST THE THREE ORDER S DATED 30.06.2017 PERTAINING TO THE ASSESSMENT YEAR S 2009 - 10, 2010 - 11, 20 11 - 12 AND ONE ORDER DATED 10.10.2017 PERTAINING TO THE ASSESSMENT YEAR 2012 - 13, PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 50 (FOR SHORT THE CIT(A) , MUMBAI. VIDE IMPUGNED ORDERS DATED 30.06.2017, THE LD. CIT(A) HAS PARTLY ALLOWED T HE APPEAL S FILE D BY THE ASSESSEE AGAINST THE ASSESSMENT 2 ITA NO. 57 71, 5772, 5773/MUM/2017 & 18 / MUM/2018 ASSESSMENT YEAR: 2009 - 10, 2010 - 11, 2011 - 12 & 2012 - 13 ORDER S PASSED U/S 153A R.W.S 143 (3) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT) FOR THE ASSESSMENT YEAR 2009 - 10, 2010 - 11, 2011 - 12 AND VIDE O RDER DATED 10.10.2017 THE LD. CIT (A) HAS PARTLY ALLOWED THE APPEAL FILED BY THE ASSESSEE AGAINST ASSESSMENT ORDER PASSED U/S 143 (3) R.W.S. 144C (3) OF THE ACT, FOR THE ASSESSMENT YEAR 2012 - 13 . SINCE, THESE APPEALS PERTAIN TO THE SAME ASSESSEE FOR THE DIFFERENT ASSESSMENT YEARS AND THE ISSUES RAISED BY THE ASSESSEE ARE IDENTICAL, THE SAME WERE CLUBBED AND HEARD TOGETHER FOR THE SAKE OF CONVENIENCE AND ARE BEING DISPOSED OF BY THIS COMMON AND CONSOLIDATED ORDER. 2. VIDE ITA NO. 5771/MUM/2017 TO 5773/MUM/2017, THE ASSESSEE HAS CHALLENGED THE ACTION OF THE LD. CIT (A) IN C ONFIRMING THE DISALLOWANCE OF EXPENSES AND DEPRECIATION TO THE EXTENT OF 50% IN RESPECT OF THE LUXURY SPORTS CAR OWNED BY THE ASSESSEE COMPANY. SIMILARLY, VIDE ITA NO. 18/MUM/2018, THE ASSESSEE HAS CHALLENGED THE ACTION OF THE LD. CIT (A) IN CONFIRMING THE ADDITION ON ACCOUNT OF DEPRECIATION TO THE EXTENT OF 50% IN RESPECT OF LUXURY SPORTS CAR OWNED BY THE ASSESSEE. 3. AT THE OUTSET, THE L D . COUNSEL FOR THE APPELLANT/ ASSESSEE SUBMITTED THAT ASSESSEE HAS OPTED TO SETTLE THE DISPUTE UNDER VIVAD SE VISHWAS ACT, 2020, THEREFORE THESE APPEALS MAY BE KEPT IN ABEYANCE . 4 . THE LD. DEPARTMENTAL REPRESENTATIVE DID NOT OPPOSE THE AFORESAID SUBMISSIONS MADE BY THE LD. COUNSEL. 5. I N THE CASE OF M/S. NANNUSAMY MOHAN (HUF) VS . ACIT , TCA NO 372 OF 2020, THE HONBLE MA DRAS HIGH COURT HAS DISMISSED THE APPEAL OF THE ASSESSEE AS WITHDRAWN IN WHICH THE COUNSEL HAD MADE THE SIMILAR SUBMISSIONS BEFORE THE HONBLE COURT. THE OBSERVATIONS OF THE HONBLE HIGH COURT ARE AS UNDER: - 3. THE LEARNED COUNSEL FOR THE APPELLANT / ASSE SSEE, ON INSTRUCTIONS, SUBMITTED THAT THE APPELLANT / ASSESSEE INTENDS TO AVAIL THE BENEFIT OF VIVAD SE VISHWAS SCHEME (VVS SCHEME FOR BREVITY) AND IN THIS REGARD, THE ASSESSEE IS TAKING STEPS TO FILE THE APPLICATION / DECLARATION IN FORM NO. I. 4. IT M AY NOT BE NECESSARY FOR THIS COURT TO DECIDE THE SUBSTANTIAL QUESTIONS OF LAW FRAMED FOR CONSIDERATION ON 3 ITA NO. 57 71, 5772, 5773/MUM/2017 & 18 / MUM/2018 ASSESSMENT YEAR: 2009 - 10, 2010 - 11, 2011 - 12 & 2012 - 13 ACCOUNT OF CERTAIN SUBSEQUENT DEVELOPMENTS. THE GOVERNMENT OF INDIA ENACTED THE DIRECT TAX VIVAD SE VISHWAS ACT, 2020 (ACT 3 OF 2020) TO PROVIDE FOR R ESOLUTION OF DISPUTED TAX AND FOR MATTERS CONNECTED THEREWITH OR INCIDENTAL THERETO. THE ACT OF THE PARLIAMENT RECEIVED THE ASSENT OF THE PRESIDENT ON 17 TH MARCH 2020 AND PUBLISHED IN THE GAZETTE OF INDIA ON 17 TH MARCH 2020. 5. IN TERMS OF THE SAID ACT, THE ASSESSEE HAS BEEN GIVEN AN OPTION TO PUT AN END TO THE TAX DISPUTES, WHICH MAY BE PENDING AT DIFFERENT LEVELS EITHER BEFORE THE FIRST APPELLATE AUTHORITY OR BEFORE THE TRIBUNAL OR BEFORE THE HIGH COURT OR BEFORE THE HON'BLE SUPREME COURT OF INDIA. UNDE R SECTION 2(J) DISPUTED TAX HAS BEEN DEFINED. IN TERMS OF SECTION 3, WHERE A DECLARANT MEANS A PERSON, WHO FILES A DECLARATION UNDER SECTION 4 ON OR BEFORE THE LAST DATE FILES A DECLARATION TO THE DESIGNATED AUTHORITY IN ACCORDANCE WITH THE PROV ISIONS OF SECTION 4 IN RESPECT OF TAX ARREARS, THEN, NOTWITHSTANDING ANYTHING CONTAINED IN THE INCOME TAX ACT OR ANY OTHER LAW FOR THE TIME BEING IN FORCE, THE AMOUNT PAYABLE BY THE DECLARANT SHALL BE DETERMINED IN TERMS OF SECTION 3(A - C) THEREUNDER. 6. THE FIRST PROVISO TO SECTION 3 STATES THAT IN CASE, WHERE AN APPEAL OR WRIT PETITION OR SPECIAL LEAVE PETITION IS FILED BY THE INCOME TAX AUTHORITY ON ANY ISSUE BEFORE THE APPELLATE FORUM, THE AMOUNT PAYABLE SHALL BE ONE - HALF OF THE AMOUNT IN THE TABLE STIPULATED I N SECTION 3 CALCULATED ON SUCH ISSUE, IN SUCH A MANNER AS MAY BE PRESCRIBED. THE SECOND PROVISO DEALS WITH THE CASES, WHERE THE MATTER IS BEFORE THE COMMISSIONER (APPEALS) OR BEFORE THE DISPUTE RESOLUTION PANEL. THE THIRD PROVISO DEALS WITH CASES, WHERE TH E ISSUE IS PENDING BEFORE THE INCOME TAX APPELLATE TRIBUNAL. THE FILING OF THE DECLARATION IS AS PER SECTION 4 OF THE ACT AND THE PARTICULARS TO BE FURNISHED ARE ALSO MENTIONED IN THE SUB SECTIONS OF SECTION 4. SECTION 5 OF THE ACT DEALS WITH THE TIME AND MANNER OF THE PAYMENT AND SECTION 6 DEALS WITH IMMUNITY FROM INITIATION OF PROCEEDINGS IN RESPECT OF OFFENCE AND IMPOSITION OF PENALTY IN CERTAIN CASES. SECTION 9 OF THE ACT DEALS WITH CASES, WHERE THE ACT 3 OF 2020 WILL NOT BE APPLICABLE. 7. AS OBSERVED , THE ASSESSEE IS GIVEN LIBERTY TO RESTORE THIS APPEAL IN THE EVENT THE ULTIMATE DECISION TO BE TAKEN ON THE DECLARATION TO BE FILED BY THE ASSESSEE UNDER SECTION 4 OF THE SAID ACT IS NOT IN FAVOUR OF THE ASSESSEE. IF SUCH A PRAYER IS MADE, THE REGISTRY SH ALL ENTERTAIN THE PRAYER WITHOUT 4 ITA NO. 57 71, 5772, 5773/MUM/2017 & 18 / MUM/2018 ASSESSMENT YEAR: 2009 - 10, 2010 - 11, 2011 - 12 & 2012 - 13 INSISTING UPON ANY APPLICATION TO BE FILED FOR CONDONATION OF DELAY IN RESTORATION OF THE APPEAL AND ON SUCH REQUEST MADE BY THE ASSESSEE BY FILING A MISCELLANEOUS PETITION FOR RESTORATION, THE REGISTRY SHALL PLACE SUCH PET ITION BEFORE THE DIVISION BENCH FOR ORDERS. 8. IN THE LIGHT OF THE ABOVE, WE DIRECT THE APPELLANT / ASSESSEE TO FILE THE FORM NO.I ON OR BEFORE 20.11.2020 AND THE COMPETENT AUTHORITY SHALL PROCESS THE APPLICATION / DECLARATION IN ACCORDANCE WITH THE ACT A ND PASS APPROPRIATE ORDERS AS EXPEDITIOUSLY AS POSSIBLE PREFERABLY WITHIN A PERIOD OF SIX (6) WEEKS FROM THE DATE ON WHICH THE DECLARATION IS FILED IN THE PROPER FORM. 6 . IN THE LIGHT OF THE SAID JUDGMENT, T HE LD. COUNSEL FURTHER SUBMITTED THAT THE PRESE NT APPEAL S MAY BE DISPOSED OF IN TERMS OF THE DECISION OF THE HONBLE HIGH COURT . HENCE, RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE MADRAS HIGH COURT IN THE CASE OF M/S. NANNUSAMY MOHAN (HUF) VS. ACIT (SUPRA) , WE DISMISS THE PRESENT APPEAL S AS WITH DRAWN . HOWEVER, THE APPELLANT/ASSESSEE IS AT LIBERTY TO FILE MISCELLANEOUS APPLICATION FOR RESTORATION OF APPEAL S AS DISCUSSED BY THE HONBLE MADRAS HIGH COURT IN PARAGRA PH 7 OF THE JUDGMENT. IN THE RESULT, APPEAL S FILED BY THE ASSESSEE FOR ASSESSMENT YEAR S 20 09 - 10, 2010 - 11, 2011 - 12 AND 2012 - 13 ARE DISMISSED . ORDER PRONOUNCED ON 9 TH DECEMBER, 2020 UNDER RULE 34 (4) OF THE INCOME TAX APPELLATE TRIBUNAL RULES, 1963. SD/ - SD/ - ( RAJESH KUMAR ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 09 / 1 2 /2020 ALINDRA, PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 5 ITA NO. 57 71, 5772, 5773/MUM/2017 & 18 / MUM/2018 ASSESSMENT YEAR: 2009 - 10, 2010 - 11, 2011 - 12 & 2012 - 13 3. ( ) / THE CIT(A) - 4 . / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI