Prashant Kumar, Allahabad V. ACIT, Allahabad

ITA 215/ALLD/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 89823 (ITAT-ALLAHABAD)
• Duration Of Justice: 2 year(s) 9 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 22-04-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 03-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: UMESH PATHAK
• Assessee Lawyers: R SOME
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, ALLAHABAD BENCH, ALLAHABAD BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AN D SHRI C. N. PRASAD, JUDICIAL MEMBER ITA NO. 215/ALLD/2012 ASSESSMENT YEAR: 2007-08 SHRI PRASHANT KUMAR 87-A, BAGHAMBARI ROAD ALLAHPUR, ALLAHABAD 211 004 PAN:-ADKPK2880R VS. ACIT CIRCLE-1 ALLAHABAD (APPELLANT) (RESPO NDENT) ASSESSEE BY : SHRI R. SOME REVENUE BY : SHRI UMESH PATHAK DATE OF HEARING : 22.04.2015 DATE OF PRONOUNCEMENT : 29.04.2015 O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL BY THE ASSESSEE, IS FILED AGAINST THE ORDER OF THE LD. CIT(A) ALLAHABAD, DATED 08.02.2012 FOR THE A.Y. 2007-08. 2. BEFORE US, LEARNED COUNSEL FOR THE ASSESSEE SUBM ITTED THAT THE ONLY ISSUE ARISES FROM THE GROUNDS RAISED IN THE APPEAL RELATE S TO IF THE BUSINESS PREMISES ASSET DULY PURCHASED BY THE ASSESSEE AND OTHERS ON 23.06. 2006 WAS USED FOR THE PURPOSE OF THE PROFESSION THEREBY BECOMING ELIGIBLE FOR CLA IM OF DEPRECIATION @ 10% BY THE ASSESSEE. COMING TO THE FACTS, LEARNED COUNSEL SUBM ITTED THAT ASSESSEE PURCHASED A PROPERTY IN DELHI ALONG WITH OTHERS AND THE SAME WA S PUT TO USE BY SHIFTING HIS EXISTING BUSINESS/PROFESSION FROM RENTED PREMISES T O THE NEWLY ACQUIRED BUSINESS PREMISES. IN THE RETURN OF INCOME ASSESSEE CLAIMED DEPRECIATION ON THE SAID BUILDING OF THE ASSESSEE. HOWEVER, DURING THE ASSESSMENT PRO CEEDINGS, AO FOUND THAT THE ASSESSEE WAS CONTINUOUSLY PAYING THE RENT IN RESPEC T OF THE RENTAL PREMISES. ASSESSEE PAID RENT OF RS.3,39,600/- IN THE RELEVANT YEAR TOWARDS THE RENT. AO IS OF THE OPINION THAT THE ASSESSEE HAS NOT UTILIZED THE NEW PREMISES FOR BUSINESS PURPOSES. ACCORDINGLY, HE DISALLOWED THE CLAIM OF R S. 4 LAKH OF DEPRECIATION IN THE ITA NO. 215/ALLD/2012 ASSESSMENT YEAR: 2007-08 2 ASSESSMENT AND ADDED THE SAME TO THE TOTAL INCOME O F THE ASSESSEE. AGGRIEVED WITH THE SAME ASSESSEE APPROACHED THE CIT(A) AND SUBMITT ED THAT THE ASSESSEE USED THE NEW ASSET AS WELL AS THE EXISTING RENTED PREMISES F OR MAINTAIN THE CUSTOMER RELATIONS. HE AFFIRMED THE NEW PREMISES WAS ALSO UT ILIZED FOR HIS PROFESSION BY SHIFTING FROM THE OLD PREMISES. THEREFORE, ASSESSEE SHOULD BE ALLOWED CLAIM OF DEPRECIATION AS PER THE LAW. 3. AFTER HEARING THE ASSESSEE, LD. CIT(A) CONFIRMED THE ADDITION MADE BY THE AO. CONTENTS OF PARA 3.2 OF THE IMPUGNED ORDER IS R ELEVANT. AGGRIEVED WITH THE SAME, ASSESSEE IS IN APPEAL BEFORE US. LEARNED COU NSEL FOR THE ASSESSEE MERELY REITERATED THE SUBMISSIONS MADE BY THE ASSESSEE BEF ORE THE LOWER AUTHORITIES. 4. ON THE OTHER HAND, LD. DR FOR THE REVENUE VEHEME NTLY DEFENDED THE ORDERS OF THE REVENUE. ON THE ISSUE OF THE USE OF THE NEW PREMISES, LD. DR SUBMITTED THAT ASSESSEE MERELY SUBMITTED THAT THE PROFESSION/BUSIN ESS IS SHIFTED TO NEW PREMISES. OTHERWISE, ASSESSEE DID NOT FILE ANY EVIDENCE SUCH AS TELEPHONE BILLS, ELECTRICITY BILLS, PROPERTY TAX SLIPS OF THE NEWLY ACQUIRED PREMISES E TC. 5. WE HAVE HEARD, BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE. WE FIND THAT THE ASSESSEE MERELY SUBMITTED THE EXPLANA TION BY MENTIONING BUSINESS/PROFESSION IS SHIFTED TO THE NEW BUILDING PREMISES. OTHERWISE THERE IS NO EVIDENCE TO SUBSTANTIATE THE CLAIM OF THE ASSESSEE. AT THE SAME TIME, ASSESSING OFFICER ALSO COULD NOT GARNER ANY DIRECT EVIDENCE O R ANY INCRIMINATING MATERIAL AGAINST THE CLAIM OF THE ASSESSEE. AT THE END OF TH E PROCEEDINGS, WE ARE OF THE OPINION THAT ONUS IS ON THE ASSESSEE TO PROVE THAT THE ASSET IS PUT TO USE FOR BECOMING ENTITLED FOR CLAIM OF DEPRECIATION. MERELY PURCHASING OF FLAT AND MAKING A SUBMISSION IS THAT ASSET IS PUT TO USE ALSO NOT ADE QUATE FOR MAKING A CLAIM. WHEN THE EVIDENCE IS NOT SUBMITTED TO SUBSTANTIATE THE U SE ASPECTS OF THE ASSET, IN OUR OPINION, THE ASSESSEE HAS NOT DISCHARGED THE ONUS. IN OUR OPINION, ASSESSEE OUGHT TO HAVE DEMONSTRATED THE USE OF THE BUILDING FOR BU SINESS PURPOSES BY FURNISHING THIRD PARTY EVIDENCES I.E. ELECTRICITY BILLS, TELEP HONE BILLS OR ANYTHING SIMILAR TO THE SAME. THIS IS THE REQUIREMENT OF LAW THAT THE ASSES SEE SHOULD DEMONSTRATE USE OF THE BUILDING. AS THESE FACTS ARE ESSENTIAL FOR ADJU DICATION OF THE ISSUE, WE ARE OF THE OPINION AND MATTER SHOULD BE REMANDED TO THE FILE O F THE AO FOR FRESH ADJUDICATION ITA NO. 215/ALLD/2012 ASSESSMENT YEAR: 2007-08 3 AND DECISION ON THE MERITS. AO SHALL HEAR THE ASSES SEE BEFORE DECIDING THE SAME. ACCORDINGLY, GROUND NOS. 1 TO 7 RAISED BY THE ASSES SEE ARE ALLOWED FOR STATISTICAL PURPOSES. 6. REGARDING GROUND NO. 8 AND 9, RELATING TO LOW WI THDRAWALS. LD. COUNSEL SUBMITTED THAT THE SAME SHOULD ALSO BE REMANDED TO THE AO FOR FRESH ADJUDICATION. WE ALLOW THE SUBMISSION OF THE ASSESSEE ON THIS ISS UE AND ACCORDINGLY, REMAND THIS ISSUE ALSO FOR FRESH ADJUDICATION BY THE AO AFTER G RANTING REASONABLE OPPORTUNITY TO THE ASSESSEE. ACCORDINGLY, ALL THE GROUND 1 TO 9 AR E ALLOWED FOR STATISTICAL PURPOSES, GROUND NO. 10 IS ALLOWED. 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 29 TH DAY OF APRIL, 2015. SD/- SD/- (C. N. PRASAD) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER ALLAHABAD, DATED: 29.04.2015 *SRIVASTAVA COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, ALLAHABAD THE CIT(A) CONCERNED, ALLAHABAD THE DR BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, ALLAHABAD.