ITO, Tiruppur V. M/s. Saravana Rice Mill, Tiruppur

ITA 2039/CHNY/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 8212 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 04-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHIVA SRINIVAS
• Assessee Lawyers: R KUMAR
• Keywords: Depreciation; Revised return
• Section: 32

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI . . . , .. ' #$, & '( BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI D.S. SUNDER SINGH, ACCOUNTANT MEMBER ./ ITA NO.2039/MDS/2016 * +* / ASSESSMENT YEAR : 2011-12 THE INCOME TAX OFFICER, WARD 2(2), TIRUPUR. V. M/S SARAVANA RICE MILL, NO.2/790, TIRUPUR MAIN ROAD, PONGAIGOUNDENPALAYAM, PALLADAM, TIRUPUR 641 664. PAN : AARFS 3907 R (-./ APPELLANT) (/0-./ RESPONDENT) -. 1 2 / APPELLANT BY : SHRI SHIVA SRINIVAS, JCIT /0-. 1 2 / RESPONDENT BY : SHRI R. KUMAR, ADVOCATE ' 1 3& / DATE OF HEARING : 26.09.2016 45+ 1 3& / DATE OF PRONOUNCEMENT : 28.10.2016 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) 3, COIMB ATORE, DATED 15.03.2016 AND PERTAINS TO ASSESSMENT YEAR 2011-12. 2. THERE IS A DELAY OF 3 DAYS IN FILING THE APPEAL. WE HEARD BOTH THE PARTIES. THE DELAY WAS DUE TO TRANSMISSIO N OF APPEAL BY 2 I.T.A. NO.2039/MDS/16 POST. THEREFORE, THE DELAY OF 3 DAYS IS CONDONED A ND APPEAL IS ADMITTED. 3. SHRI SHIVA SRINIVAS, THE LD. DEPARTMENTAL REPRES ENTATIVE, SUBMITTED THAT THE ASSESSEE CLAIMED DEPRECIATION AT THE RATE OF 80% ON THE WINDMILL IN THE ORIGINAL RETURN. HOWEVER, I N THE REVISED RETURN, THE ASSESSEE CLAIMED DEPRECIATION AT THE RATE OF 15 %. BOTH THE ORIGINAL RETURN AND REVISED WERE FILED AFTER THE DU E DATE PRESCRIBED UNDER SECTION 139(1) OF THE INCOME-TAX ACT, 1961 (I N SHORT 'THE ACT'). THE ASSESSING OFFICER FOUND THAT FOR THE AS SESSMENT YEAR 2010-11, 44 UNITS OF ELECTRICITY WAS GENERATED AND THE ASSESSEE HAS NOT CLAIMED ANY DEPRECIATION ON THE WINDMILL. MORE OVER, THE ASSESSEE HAS NOT EXERCISED ANY OPTION FOR CLAIMING HIGHER DEPRECIATION ON THE WINDMILL. SINCE THE OPTION WAS NOT EXERCISED BY THE ASSESSEE WITH REGARD TO HIGHER RATE OF DEPRECIA TION RELATING TO WINDMILL, THE ASSESSING OFFICER DISALLOWED THE CLAI M OF THE ASSESSEE FOR DEPRECIATION. ON A QUERY FROM THE BENCH, WHETH ER ANY FORM IS PRESCRIBED FOR EXERCISING OPTION FOR CLAIMING DEPRE CIATION AT THE HIGHER RATE? THE LD. D.R. SUBMITTED THAT THE ASSES SEE HAS TO FILE COPIES OF THE AUDITED STATEMENT BEFORE THE ASSESSIN G OFFICER. 3 I.T.A. NO.2039/MDS/16 THEREFORE, ACCORDING TO THE LD. D.R., THE CIT(APPEA LS) IS NOT JUSTIFIED IN ALLOWING THE CLAIM OF THE ASSESSEE. 4. ON THE CONTRARY, SHRI R. KUMAR, THE LD.COUNSEL F OR THE ASSESSEE, SUBMITTED THAT THE ONLY ISSUE ARISES FOR CONSIDERATION IS DETERMINATION OF RATE OF DEPRECIATION FOR THE WINDM ILL. THE ASSESSEE CLAIMED 80%. HOWEVER, THE ASSESSING OFFICER ALLOWE D ONLY 7.69%. THE ASSESSING OFFICER DISALLOWED THE CLAIM OF THE A SSESSEE ON THE GROUND THAT THE ASSESSEE HAS NOT EXERCISED THE OPTI ON TO CLAIM HIGHER DEPRECIATION. THE ASSESSING OFFICER HAS ALS O FOUND THAT THE ASSESSEE HAS NOT FILED THE RETURN OF INCOME UNDER S ECTION 139(1) OF THE ACT. THE ASSESSEE, HOWEVER, FILED THE AUDITED STATEMENT DISCLOSING THE CLAIM OF DEPRECIATION. ACCORDING TO THE LD. COUNSEL, IN THE ABSENCE OF ANY SPECIFIC FORM PRESCRIBED UNDE R THE INCOME-TAX ACT, THE CLAIM OF DEPRECIATION IN THE AUDITED STATE MENT WOULD AMOUNT TO EXERCISING THE OPTION. 5. REFERRING TO THE JUDGEMENT OF MADRAS HIGH COURT IN KKSK LEATHER PROCESSORS (P) LTD. V. ITO IN 369 ITR 500, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN THE ABSENCE OF A NY PRESCRIBED PROCEDURE FOR EXERCISING THE OPTION, THE CLAIM OF T HE ASSESSEE IN THE RETURN OF INCOME ALONG WITH AUDIT REPORT WOULD DEFI NITELY AMOUNT TO 4 I.T.A. NO.2039/MDS/16 EXERCISING THE OPTION. IN THE CASE BEFORE US, ACCO RDING TO THE LD. COUNSEL, THERE WAS A DELAY IN FILING THE RETURN OF INCOME. HOWEVER, THE AUDITED STATEMENT WAS FILED WITHIN THE PRESCRIB ED TIME. THEREFORE, ACCORDING TO THE LD. COUNSEL, THE CIT(AP PEALS) HAS RIGHTLY ALLOWED THE CLAIM OF THE ASSESSEE. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE ONLY ISSUE ARISES FOR CONSIDERATION IS THE CLAIM OF DEPRECIATI ON ON THE WINDMILL. THE ASSESSING OFFICER DISALLOWED THE CLAIM OF THE A SSESSEE ON THE GROUND THAT THE ASSESSEE HAS NOT EXERCISED ANY OPTI ON FOR CLAIMING HIGHER DEPRECIATION. IT IS AN ADMITTED FACT THAT T HE INCOME-TAX ACT DOES NOT PRESCRIBE ANY SPECIFIC PROCEDURE OR FORM F OR CLAIMING HIGHER RATE OF DEPRECIATION. THE CLAIM MADE BY THE ASSESSEE IN THE RETURN OF INCOME AND AUDITED STATEMENT HAS TO BE TA KEN AS EXERCISING OPTION AS FOUND BY THE MADRAS HIGH COURT IN KKSK LEATHER PROCESSORS (P) LTD. (SUPRA). IT IS NOT BRO UGHT TO OUR NOTICE ANY PROVISION IN THE INCOME-TAX ACT WHEREBY THE ASS ESSEE HAS TO FILE RETURN OF INCOME WITHIN THE TIME PRESCRIBED FO R CLAIMING DEPRECIATION UNDER SECTION 32 OF THE ACT. IN THE A BSENCE OF ANY SPECIFIC PROVISION IN THE ACT, THIS TRIBUNAL IS OF THE CONSIDERED 5 I.T.A. NO.2039/MDS/16 OPINION THAT THE RETURN FILED BY THE ASSESSEE AND T HE CLAIM MADE IN THE AUDITED STATEMENT HAS TO BE CONSIDERED FOR EXER CISING OPTION. THOUGH THE RETURN WAS FILED BELATEDLY, THE ASSESSEE HAS CLAIMED DEPRECIATION AT HIGHER RATE. IN THOSE CIRCUMSTANCE S, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE CIT(APPEALS) HAS RIGHTLY ALLOWED THE CLAIM OF THE ASSESSEE BY PLACING RELIANCE ON TH E JUDGEMENT OF MADRAS HIGH COURT IN KKSK LEATHER PROCESSORS (P) LT D. (SUPRA) AND ALSO THE DECISION OF THIS BENCH OF THE TRIBUNAL IN RAVI V. ACIT IN I.T.A. NO.2064/MDS/2008. THEREFORE, THIS TRIBUNAL DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF THE LOWER AUT HORITY AND ACCORDINGLY THE SAME IS CONFIRMED. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED ON 28 TH OCTOBER, 2016 AT CHENNAI. SD/- SD/- ( . . ' #$ ) ( . . . ) (D.S. SUNDER SINGH) (N.R.S. GANESAN) & / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 7 /DATED, THE 28 TH OCTOBER, 2016. KRI. 6 I.T.A. NO.2039/MDS/16 1 /3#8 98+3 /COPY TO: 1. -. /APPELLANT 2. /0-. /RESPONDENT 3. ' :3 () /CIT(A)-3, COIMBATORE 4. PRINCIPAL CIT-3, COIMBATORE 5. 8; /3 /DR 6. * < /GF.