Cambrian Hall Educational Trust, Dehradun V. ACIT, Dehradun

ITA 2351/DEL/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 53278 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 15-11-2011
• Assessment Year: 1994-1995
• Appeal Filed On: 10-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROHIT GARG SENIOR
• Assessee Lawyers: MAHESH KUMAR; MANOHAR LAL
• Keywords: Depreciation; Opportunity of being heard; Period of limitation; Question of law
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH B : NEW DELHI) SMT. DIVA SINGH, JUDICIAL MEMBER AND BEFORE SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NOS.2351, 2352 & 2353/DEL./2011 (ASSESSMENT YEARS : 1994-95, 1995-96 & 1996-97) CAMBRIAN HALL EDUCATIONAL TRUST, VS. ACIT, CIRCLE 2, 13, YOUNG ROAD, DEHRADUN. DEHRADUN (UTTRAKHAND). (PAN : AAATC0618A) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI MANOHAR LAL, ADVOCATE & SHRI MAHESH KUMAR, CA REVENUE BY : SHRI ROHIT GARG, SENIOR DR ORDER PER BENCH : APPEALS NOS.2351 & 2352 FILED BY THE ASSESSEE ARIS E OUT OF THE ORDERS OF THE CIT (A)-I, DEHRADUN DATED 28.01.2011 FOR THE ASSESS MENT YEARS 1994-95 AND 1995- 96. IN BOTH THESE ORDERS, THE CIT (A) HAS CONFIRME D THE PENALTY U/S 271(1)(C) OF INCOME-TAX ACT AMOUNTING TO RS.1,65,617/- FOR ASSES SMENT YEAR 1994-95 AND RS.7,97,348/- FOR ASSESSMENT YEAR 1995-96. 2. IN BOTH THE APPEALS, THE ASSESSEE HAS MADE AN AP PLICATION TO ADMIT THE ADDITIONAL GROUND. THE ADDITIONAL GROUND READ AS U NDER :- THE PENALTY ORDER AS AFFIRMED THE LD. CIT (APPEALS ) WAS PASSED BY THE LD.A.O. AFTER THE PERIOD OF LIMITATION AND T HEREFORE, LIABLE TO BE STRUCK DOWN AS NULL AND VOID. ITA NOS.2351, 2352 & 2353/DEL./2011 2 3. DURING THE HEARING, IT WAS PLEADED ON BEHALF OF THE ASSESSEE THAT THIS ADDITIONAL GROUND WAS NEITHER RAISED BEFORE THE ASS ESSING OFFICER NOR BEFORE CIT (A). HOWEVER, IN VIEW OF DECISION OF THE HON'BLE S UPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CORPORATION LTD. VS. CIT 2 29 ITR 383, IT WAS PRAYED THAT THE ADDITIONAL NEW GROUND MAY BE ALLOWED TO BE RAISED AS THE ISSUE INVOLVED IS PURE QUESTION OF LAW AND IT COULD BE DISPOSED OFF O N THE BASIS OF FACTS ALREADY AVAILABLE ON RECORD. LD. AR ALSO PLEADED THAT THE QUESTION OF LAW RAISED IN THE ADDITIONAL NEW GROUND GOES TO THE VERY ROOT OF THE CASE AND AS PER COURTS RULING, SUCH GROUND CAN BE RAISED BEFORE ANY HIGHER AUTHORI TY AT ANY STAGE OF THE PROCEEDINGS. FOR THIS PROPOSITION, HE RELIED ON TH E DECISION OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF INVESTMENT INDUSTRIAL COR PORATION LTD. VS. CIT 194 ITR 548 (BOM.). HE ALSO PLEADED THAT ALTHOUGH THE GROU ND HAS NOT BEEN RAISED BEFORE THE ASSESSING OFFICER AS WELL AS THE CIT (A), HOWEV ER, IT GOES INTO THE ROOT OF THE CASE BEING THE JURISDICTIONAL POINT, THEREFORE, IT MAY BE ALLOWED TO BE RAISED AT THIS STAGE. FOR THIS PROPOSITION, HE RELIED ON THE DECI SION OF HON'BLE SUPREME COURT IN THE CASE OF RJ SINGH AHLUWALIA VS. STATE OF DELHI AIR 1971 SC 1552 / 1538 AND HE ALSO RELIED ON THE DECISION OF HON'BLE SUPREME C OURT IN THE CASE OF G.M. CONTRACTOR VS. GUJARAT ELECTRICITY BOARD AIR 1977 SC 792 / 798. 4. ON THE OTHER HAND, THE LEARNED DR SUBMITTED THAT THE ADDITIONAL GROUND MAY BE ALLOWED TO BE RAISE BUT THE HON'BLE BENCH SHOULD NOT PASS ANY DIRECTION OR COMMENT ON THE MERITS OF THE GROUND. HE PLEADED T HAT ALL THE ISSUES SHOULD BE RESTORED TO THE FILE OF THE ASSESSING OFFICER. ITA NOS.2351, 2352 & 2353/DEL./2011 3 5. WE HAVE HEARD BOTH THE SIDES ON THE ISSUE AND AF TER HEARING BOTH THE SIDES AND WITHOUT GOING INTO THE MERITS OF ANY GROUND INC LUDING THE ADDITIONAL GROUND, WE ALLOW TO RAISE THE ADDITIONAL GROUND AND RESTORE AL L THE ISSUES TO THE FILE OF THE ASSESSING OFFICER TO BE DECIDED DE NOVO AS PER LAW. 6. IN THE RESULT, BOTH THE APPEALS BEING ITA NOS.23 51 & 2352/DEL/2011 ARE ALLOWED FOR STATISTICAL PURPOSES. 7. ITA NO.2353/DEL/2011 FILED BY THE ASSESSEE ARISE S OUT OF THE ORDER OF THE CIT (APPEALS)-I, DEHRADUN DATED 28.01.2011 IN WHICH THE CIT (A) HAS CONFIRMED THE ACTION OF THE ASSESSING OFFICER BY DENYING THE DEDUCTION OF DEPRECIATION BY NOT TREATING THE SAME AS MISTAKE APPARENT FROM THE RECO RD. 8. AT THE OUTSET OF THE HEARING, THE LEARNED AR SUB MITTED THAT THE APPLICATION FILED FOR RECTIFICATION BEFORE THE ASSESSING OFFICE R FOR ALLOWING THE DEPRECIATION WAS DISMISSED BY ASSESSING OFFICER. THE APPEAL AGAINST THE ASSESSING OFFICERS ORDER WAS ALSO DECIDED AGAINST THE ASSESSEE. HOWEVER, IT AT, BENCH E, NEW DELHI IN ASSESSEES OWN CASE PASSED A COMBINED ORDER DATED 1 3.05.2009 FOR ALLOWING THE DEPRECIATION FOR THE ASSESSMENT YEAR 1996-97 AND SU BSEQUENT ASSESSMENT YEARS 1999-00 AND 2000-01. HE RELIED ON PARA 41 OF THIS ORDER. THEREFORE, THE ISSUE INVOLVED IN THE PRESENT ASSESSEES APPEAL HAS BECOM E INFRUCTUOUS AND HE PLEADED THAT THE APPROPRIATE ORDERS MAY BE PASSED IN THIS R EGARD. 9. ON THE OTHER HAND, LEARNED DR RELIED ON THE ORDE RS OF THE AUTHORITIES BELOW. 10. WE HAVE HEARD BOTH THE SIDES. IN PARA 41 OF TH E ORDER OF THE ITAT, BENCH E, NEW DELHI DATED 13.05.2009, THE ISSUE HAS BEEN DECIDED AS UNDER:- ITA NOS.2351, 2352 & 2353/DEL./2011 4 41. ON CONSIDERING THE SUBMISSIONS OF BOTH THE PAR TIES, PERUSING THE RECORDS AND MAINLY THE ORDER (SUPRA) PASSED BY THE CIT (A) WHILE DISPOSING OFF THE ASSESSEES APPEAL U/S 154 O F THE I.T. ACT FOR A.Y. 1994-95, AGAINST WHICH THE REVENUE IS ALLEGED TO HAVE NOT FILED ANY APPEAL, WE CONSIDER IT APPROPRIATE AND BEFITTIN G IN FACTS AND CIRCUMSTANCES OF THE INSTANT CASE TO SET ASIDE THE ORDERS OF TAX AUTHORITIES BELOW ON THIS ISSUE IN THE RELEVANT A.Y S UNDER CONSIDERATION BEFORE US TO THE FILE OF A.O. TO DECI DE THE ISSUE OF DEPRECIATION AFRESH ON MERITS IN THE LIGHT OF THE O BSERVATIONS MADE BY THE CIT (A) IN THE ORDER (SUPRA) WHICH HAS ATTAI NED FINALITY AND TO WHICH WE TOO AGREE, OF COURSE AFTER ALLOWING REA SONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 41.1 CONSEQUENTLY, THE GROUND NO.6 OF THE APPEALS O F THE ASSESSEE IN THE RELEVANT A.YS UNDER CONSIDERATION STANDS ALL OWED FOR STATISTICAL PURPOSES. WE FIND NO MERIT IN THE CONTENTION OF THE ASSESSEE AS FINDINGS IN PARA 41 ARE NOT RELEVANT TO DECIDE THE ISSUE. THE CIT (A) HAS DECI DED THE ISSUE AS UNDER :- 4. IN THIS BACKDROP, THE REAL IS NOT WHETHER THE A SSESSEE IS ELIGIBLE FOR DEDUCTION ON ACCOUNT OF DEPRECIATION O R NOT. THE ISSUE IS: WHETHER, WHEN LAW STIPULATES THAT DEDUCTION FOR DEPRECIATION CAN BE ALLOWED ONLY IF THE SAME IS CLAIMED BY THE ASSES SEE AND IF THE SAME IS NOT CLAIMED BY THE ASSESSEE IN THE RETURN O R DURING ASSESSMENT, CAN THE AO BE SAID TO HAVE COMMITTED A MISTAKE APPARENT FROM RECORD IN NOT ALLOWING THE SAID BENEF IT IN ASSESSMENT MADE BY HIM. IN THE CONSIDERED OPINION OF THE UNDER SIGNED, THERE WAS NO MISTAKE IN THE ASSESSMENT ORDER IN VIEW OF T HE LEGAL AND FACTUAL POSITION DISCUSSED ABOVE. THE ASSESSEE'S CL AIM, POST- ASSESSMENT, WAS IN THE NATURE OF A FRESH CLAIM WHIC H THE AO WAS NOT COMPETENT TO ENTERTAIN, WHETHER U/S 154 OF THE I.T. ACT OR OTHERWISE. THE APPROPRIATE COURSE FOR THE ASSESSEE WOULD HAVE BEEN TO CLAIM THE DEDUCTION BEFORE THE APPELLATE AUTHORI TIES IN COURSE OF THE APPEAL AGAINST THE ASSESSMENT ORDER OR BEFORE T HE CIT UNDER SECTION 264 OF THE I.T. ACT. 5. IN VIEW OF THE FOREGOING DISCUSSION, IT IS HELD THAT THE AO WAS CORRECT IN COMING TO THE CONCLUSION THAT THE DE NIAL OF DEDUCTION FOR DEPRECIATION WAS NOT A MISTAKE APPARENT FROM RE CORD WHICH COULD BE RECTIFIED U/S 154 OF THE I.T. ACT AND, CON SEQUENTLY, REJECTING THE ASSESSEE'S APPLICATION FOR SUCH RECTI FICATION. ITA NOS.2351, 2352 & 2353/DEL./2011 5 AFTER CONSIDERING ALL THE RELEVANT FACTS, WE FIND N O FAULT IN THE ORDER OF THE CIT (A). WE SUSTAIN THE SAME. 11. IN THE RESULT, THE APPEAL BEING ITA NO.2353/DEL /2011 IS DISMISSED. 12. TO SUM UP : THE APPEALS BEING ITA NOS.2351 & 23 52/DEL/2011 ARE ALLOWED FOR STATISTICAL PURPOSES AND APPEAL BEING ITA NO.23 53/DEL/2011 IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THIS 2 ND DAY OF DECEMBER, 2011. SD/- SD/- (DIVA SINGH) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 2 ND DAY OF NOVEMBER, 2011 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-VI, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.