Gujarat Chemical Port Terminal Company Ltd., Bharuch V. The Dy. CIT, Circle-1(1)(1), Baroda

ITA 1888/AHD/2016

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0795 (ITAT-SURAT)
• Duration Of Justice: 3 year(s) 4 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 25-11-2019
• Assessment Year: 2012-2013
• Appeal Filed On: 18-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation
• Section: 13; 147; 148

Judgement Text

GUJARAT CHEMICAL PORT TERMINAL CO. LTD. VS. DCIT, CIRCLE-1(1)(1), SURAT /ITA NO.1888/AHD/2016 FOR A.Y. 2012-13 PAGE 1 OF 4 , , IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT BEFORE SHRI SANDEEP GOSAIN, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER . . ./ I.T.A NO.1888/AHD/2016 [ [ / ASSESSMENT YEAR: 2012-13 M/S.GUJARAT CHEMICAL PORT TERMINAL CO.LTD., PO LAKHIGAM, VIA.DAHEJ, TALUKA VAGRA, BHARUCH 392 130. [PAN: AAACG 6861 A] V S . DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-1(1)(1), BARODA 390007. / APPELLANT /RESPONDENT [ /ASSESSEE BY SHRI BHAVIN MARFATIA, CA /REVENUE BY SHRI O.P.SINGH CIT-DR / DATE OF HEARING: 12.12.2019 /PRONOUNCEMENT ON: 13.12.2019 /O R D E R PER SANDEEP GOSAIN, JM: 1. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD.COMMISSIONER OF INCOME TAX(APPEALS)-1, VADODARA DATED 26.04.2016 FOR THE ASSESSMENT YEAR 2012-13. 2. GROUNDS RAISED BY THE ASSESSEE READ AS UNDER: 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-1. VADODARA ['THE CIT(A)'] ERRED IN FACT AND IN LAW IN CONFIRMING THE ACTION OF THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-1(1)(1), VADODARA' ['THE AO'] IN RESTRICTING DEPRECIATION ON ELECTRIC INSTALLATION TO 10% INSTEAD OF 15% AS CLAIMED BY THE APPELLANT AND THEREBY CONFIRMING THE ADDITION OF RS. 14,63,324/- TO THE INCOME OF THE APPELLANT. 2. THE LEARNED CIT(A) ERRED IN FACT AND IN LAW IN CONFIRMING THE ACTION OF AO IN RESTRICTING THE DEPRECIATION ON ELECTRICAL INSTALLATION TO 10% INSTEAD OF GUJARAT CHEMICAL PORT TERMINAL CO. LTD. VS. DCIT, CIRCLE-1(1)(1), SURAT /ITA NO.1888/AHD/2016 FOR A.Y. 2012-13 PAGE 2 OF 4 15% DESPITE THE FACT THAT THE ELECTRICAL INSTALLATION IS AN INTEGRAL PART OF THE PLANT AND MACHINERY. 3. THE LEARNED CIT (A) ERRED IN FACT AND IN LAW IN CONFIRMING THE ACTION OF THE AO IN INITIATING PENALTY PROCEEDINGS U/S. 271(L)(C) OF THE INCOME TAX ACT, 1961. 4. YOUR APPELLANT CRAVES THE RIGHT TO ADD TO OR ALTER, AMEND, SUBSTITUTE, DELETE OR MODIFY ALL OR ANY OF THE ABOVE GROUNDS OF APPEAL. 3. THE ONLY DISPUTE RAISED BY THE ASSESSEE BEFORE US IS CHALLENGING ORDER OF LD.CIT(A) IN CONFIRMING THE ACTION OF DCIT AND RESTRICTING THE DEPRECIATION ON ELECTRIC INSTALLATION TO 10% INSTEAD OF 15% AS LAID BY THE ASSESSEE. 4. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HAD FILED ITS RETURN OF INCOME ON 29.09.2012 DECLARING TOTAL INCOME AT RS.NIL FOR THE YEAR UNDER CONSIDERATION. THE ASSESSMENT U/S.143(3) OF THE I.T.ACT WAS COMPLETED ON 09.03.2015 BY DETERMINE THE TOTAL LOSS AT RS.NIL. AT THE TIME OF FINALIZING THE ASSESSMENT, THE LD.ASSESSING OFFICER(AO) HAS MADE VARIOUS ADDITIONS/DISALLOWANCES. 5. AT THE VERY OUTSET, IT WAS SUBMITTED THAT THE ISSUE IS SQUARELY COVERED BY THE TRIBUNAL DECISION IN ASSESSEES OWN CASE OF THAT THE IDENTICAL GROUND HAS ALREADY BEEN DECIDED BY THE CO-ORDINATE BENCH OF ITAT IN ITA NO.2414/AHD/2015/SRT FOR THE A.Y. 2011-12. THE RELEVANT PORTION IN PARA NO.8 TO 11 READ AS UNDER: 8. GROUND NO.2 RELATES TO CONFIRMING ACTION OF THE ASSESSING OFFICER (AO) IN RESTRICTING DEPRECIATION OF ELECTRICAL INSTALLATION TO 10% INSTEAD OF 15% CLAIMED BY THE ASSESSEE AND THEREBY CONFIRMING THE ADDITION OF RS. 17,21,558/-. GUJARAT CHEMICAL PORT TERMINAL CO. LTD. VS. DCIT, CIRCLE-1(1)(1), SURAT /ITA NO.1888/AHD/2016 FOR A.Y. 2012-13 PAGE 3 OF 4 9. AT THE OUTSET, THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THIS ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF TRIBUNAL IN THE ASSESSEE'S OWN CASE IN ITA NO.3077 TO 3079 AND 3115 TO 3120/AHD/2011 DATED 13.11.2017. THE LD.SENIOR DEPARTMENTAL REPRESENTATIVE HAS ALSO CONCURRED WITH THE SUBMISSION OF THE LD.COUNSEL OF THE ASSESSEE. 10. WE HAVE CONSIDERED FACTS AND FIND THAT THE TRIBUNAL IN THE AFORESAID CASE (SUPRA) IN PARA 9 HAS OBSERVED AS UNDER : '9. LEARNED DEPARTMENTAL REPRESENTATIVE FAILS TO DISPUTE THE CRUCIAL FACT THAT THE ASSESSEE HAD IN FACT DISCLOSED ALL ITS DEPRECIATION DETAILS IN FORM 3CD ANNEXURE 1A. HER CASE HOWEVER IS THAT SECTION 149(L)(B) ENVISAGES TIME LIMIT FOR ISSUING SECTION 148 NOTICE TO BE BETWEEN FOUR YEARS TO SIX YEARS SQUARELY APPLIES IN FACTS OF THE INSTANT CASE. WE FIND NO MERIT IN THE INSTANT ARGUMENT AS THE ABOVE STATUTORY PROVISION DOES NOT OPERATE AS AN EXCEPTION TO SECTION 147 (FIRST PROVISO). IT IS NOT A PROVISO TO PROVISO IN OTHER WORDS. LEARNED DEPARTMENTAL REPRESENTATIVE FURTHER FAILS TO DISPUTE THAT THE QUESTION WHETHER OR NOT A PORT TERMINALS JETTY / TRESTLE IS TO BE TREATED AS PLANT AND MACHINERY IS NOT MORE RES INTEGRA SINCE THIS TRIBUNAL'S CO-ORDINATE BENCH DECISION IN KANDIA PORT TRUST CASE (2007) 104 ITD 1 (RJT) HAS HELD SUCH ASSETS TO BE PLANT AND MACHINERY ENTITLED FOR 25% RATE OF DEPRECIATION. HON'BLE JURISDICTIONAL HIGH COURT HAS UPHELD THE SAID VIEW IN REVENUE'S TAX APPEAL NO.1942 OF2006 DECIDED ON 05.07.2016. WE THEREFORE FIND NO REASON TO ACCEPT IN REVENUE'S ARGUMENTS SEEKING TO TREAT ASSESSEE'S JETTY & TRESTLE AS BUILDING BLOCK OF ASSETS INSTEAD OF PLANT AND MACHINERY IN ALL CASES ON MERITS AS WELL. ITS APPEAL TTA NO.3115, 3116, 3117, 3118 & 3119/AHD/2011 ARE ACCORDINGLY DECLINED.' 11. SINCE THE FACTS OF THE PRESENT CASE ARE IDENTICAL, THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE IS ELIGIBLE FOR DEPRECIATION @15% INSTEAD OF 10% ALLOWED BY THE AO IN RESPECT OF JETTY & TRESTLE, ACCORDINGLY THE ASSESSING OFFICER IS DIRECTED TO ALLOW DEDUCTION OF DEPRECIATION OF RS.17,21,558/- CLAIMED @5% OUT OF 10%. THIS GROUND OF APPEAL IS THEREFORE ALLOWED. 6. ON THE OTHER HAND, THE LD.CIT-D.R. RELIED ON THE ORDERS OF LOWER AUTHORITIES. 7. WE HAVE HEARD THE COUNSELS OF BOTH THE PARTIES AND WE ALSO PERUSED THE MATERIAL PLACED ON RECORD AND ORDERS PASSED BY THE REVENUE AUTHORITY AS WELL AS THE JUDGMENTS CITED BY THE PARTIES. FROM THE RECORDS, WE FIND THAT THE ISSUE IS SQUARELY COVERED BY THE DECISION CO- ORDINATE BENCH OF ITAT SURAT IN ASSESSEES OWN CASE IN I.T.A.NO.2414/AHD/2015/SRT A.Y. 2013-14(SUPRA). GUJARAT CHEMICAL PORT TERMINAL CO. LTD. VS. DCIT, CIRCLE-1(1)(1), SURAT /ITA NO.1888/AHD/2016 FOR A.Y. 2012-13 PAGE 4 OF 4 8. SINCE THE FACTS ARE IDENTICAL, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE IS ELIGIBLE FOR DEPRECIATION @15% INSTEAD OF 10% ALLOWED BY THE LD.ASSESSING OFFICER(AO), ACCORDINGLY THE AO IS DIRECTED TO ALLOW DEDUCTION OF DEPRECIATION AS MENTIONED ABOVE, ACCORDINGLY GROUND OF APPEAL IS ALLOWED. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. 10. ORDER PRONOUNCED IN THE OPEN COURT ON 13-12-2019. SD/- SD/- (O.P.MEENA) (SANDEEP GOSAIN) ( /ACCOUNTANT MEMBER) ( /JUDICIAL MEMBER) / SURAT, DATED : 13 TH DECEMBER , 2019/ S.GANGADHARA RAO, SR.PS COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT