THE ACIT, CIRCLE - 4(1), Visakhapatnam V. M/s Prathyusha Resources and Infra Pvt.Ltd., Visakhapatnam

ITA 24/VIZ/2014

• Counselvise Citation: [2016] 130 COUNSELVISE.COM (IT) 9797 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 2 year(s) 8 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-10-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 16-09-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 24-01-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: S RAVI SANKAR NARAYAN
• Keywords: Depreciation; Block assessment
• Section: 143(3); 144; 154; 15

Judgement Text

ITA NO.24/VIZAG/2014 M/S. PRATHYUSHA RESOURCES AND INFRA PVT. LTD., VSKP 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . , $ BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI G. MANJUNATHA, ACCOUNTANT MEMBER ./I.T.A.NO.24/VIZAG/2014 ( / ASSESSMENT YEAR: 2008-09) ACIT, CIRCLE - 4(1), VISAKHAPATNAM VS. M/S. PRATHYUSHA RESOURCES AND INFRA PVT. LTD., VISAKHAPATNAM [PAN: AADCP6738C ] ( % / APPELLANT) ( &'% / RESPONDENT) / APPELLANT BY : SHRI S. RAVI SANKAR NARAYAN, DR / RESPONDENT BY : SHRI G.V.N. HARI, AR / DATE OF HEARING : 22.08.2016 / DATE OF PRONOUNCEMENT : 07.10.2016 / O R D E R PER V. DURGA RAO, JUDICIAL MEMBER: THIS APPEAL FILED BY REVENUE IS DIRECTED AGAINST T HE ORDER OF CIT(A), VISAKHAPATNAM DATED 22.11.2013 FOR THE ASSE SSMENT YEAR 2008-09. ITA NO.24/VIZAG/2014 M/S. PRATHYUSHA RESOURCES AND INFRA PVT. LTD., VSKP 2 2. FACTS ARE IN BRIEF THAT THE ASSESSEE COMPANY ENG AGED IN THE BUSINESS OF HANDLING, STEVEDORING AND FORWARDING CO NTRACTS, FILED ITS RETURN OF INCOME. THE A.O. HAS COMPLETED THE ASSES SMENT U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS 'TH E ACT'). SUBSEQUENTLY, HE HAS NOTICED THAT FRINGE BENEFIT TA X PAID OF ` 8,27,774/- AND ` 12,16,852/-, WHICH WERE WRONGLY SHOWN AS A VAT PAYMENTS IN THE LEDGER ACCOUNTS WHICH ARE TO BE ADD ED BACK TO THE INCOME. ACCORDINGLY, THE A.O. RECTIFIED THE ORDER PASSED U/S 143(3) & 144 OF THE ACT AND THE ABOVE AMOUNTS WERE ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 3. AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE T HE CIT(A) AGAINST THE ORDER PASSED BY THE A.O. U/S 154 OF THE ACT. I N THE APPEAL BEFORE THE LD. CIT(A), HE HAS RAISED THE ISSUE OF DEPRECIA TION, WHICH IS NOT SUBJECT MATTER OF SECTION 154 OF THE ACT. THE LD. CIT(A) BY FOLLOWING THE ASSESSEES OWN CASE ALLOWED THE DEPRECIATION ON TIPPERS TO 30% INSTEAD OF 15% ALLOWED BY THE A.O. 4. ON BEING AGGRIEVED, REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. THE LD. D.R. HAS SUBMITTED THAT THE ASSESSEE HAS RAISED THE CLAIM OF THE DEPRECIATION IN THE ORDER PASSED BY THE A.O. U/S 15 4 OF THE ACT AND SUBMITTED THAT THE CLAIM IS DELAYED AND IT CANNOT B E RAISED. ITA NO.24/VIZAG/2014 M/S. PRATHYUSHA RESOURCES AND INFRA PVT. LTD., VSKP 3 5. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSES SEE HAS SUBMITTED THAT THE ISSUE INVOLVED IN THIS APPEAL IS SQUARELY COVERED BY THE DECISION OF THE TRIBUNAL IN THE ASSESSEES OWN CASE IN THE E ARLIER YEARS, THEREFORE, THE LD. CIT(A), BY FOLLOWING THE SAME ALLOWED THE C LAIM OF DEPRECIATION AND HE STRONGLY SUPPORTED THE ORDER PASSED BY THE C IT(A). 6. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATER IALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHOR ITIES BELOW. WE FIND THAT THE ISSUE INVOLVED IN THIS APPEAL IS SQUARELY COVERED BY THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE. THE LD. CI T(A) WITHOUT GOING THROUGH TECHNICALITIES, ALLOWED THE DEPRECIATION UP TO 30% INSTEAD OF 15% ALLOWED BY THE A.O. RELEVANT PORTION OF THE OR DER IS EXTRACTED AS UNDER: 4.3 I HAVE CONSIDERED THE SUBMISSIONS MADE. IT IS SEE N THAT A SIMILAR DISALLOWANCE WAS MADE IN THE ASSESSEE'S CAS E IN THE BLOCK ASSESSMENT PROCEEDINGS FINALIZED VIDE ORDER DTD.27. 11.1996 U/S.158BC. AGAINST THIS, THE ASSESSEE FILED APPEAL BEFORE HON' BLE ITAT, HYDERABAD. THE ASSESSEE RAISED FOLLOWING ISSUES IN THAT APPEAL : THE ASSESSING OFFICER ERRED IN DISALLOWING EXCESSI VE DEPRECIATION WHILE COMPLETING THE ASSESSMENT FOR TH E BLOCK PERIOD AS BEING OUTSIDE THE PURVIEW OF SECTION 158BC, AND THE ASSESSING OFFICER, IN CONTRAVENTION OF BOARD C IRCULARS AND CASE LAWS, ERRED IN NOT ALLOWING HIGHER DEPRECI ATION OF 40% ON TIPPERS WHEN THE TIPPERS WERE USED BY ASSESSEE IN ITS BUSINESS OF HIRING AND TRANSPORTATION OF GOODS. ITA NO.24/VIZAG/2014 M/S. PRATHYUSHA RESOURCES AND INFRA PVT. LTD., VSKP 4 THE HON'BLE [TAT VIDE ITS ORDER DATED 24.06.1999 HA S UPHELD THE APPELLANT'S CONTENTION ON BOTH THE ABOVE COUNTS, IN UNAMBIGUOUS TERMS. AT PARA 5 (PAGE 4) OF THE [TAT ORDER IT IS S TATED CLEARLY THAT 'SECONDLY, THAT IS ON MERITS ALSO, WE FIND THAT THE CLAIM OF THE ASSESSEE IS ALLOWABLE. WE HAVE GONE THROUGH THE CASE LAWS AN D THE BOARD'S CIRCULARS WHICH GC IN FAVOUR OF THE ASSESSEE.' 4.4 THE DEPARTMENT HAS PREFERRED APPEAL AGAINST THE ABOVE DECISION BEFORE THE HON'BLE HIGH COURT, AND IT IS SEEN THAT THE APPEAL HAS BEEN DISMISSED ON THE GROUND THAT THE DISALLOWANCE COULD NOT BE MADE U/S.158BC. THE CORRECTNESS OF DISALLOWANCE WAS NOT DECIDED ON MERITS BY THE HON'BLE HIGH COURT. FURTHER IT IS SEEN THAT FOR A.Y.2003-04, A.Y.2004-05 & A.Y.2006-07, THE HON'BLE [TAT VISAKHAPATNAM HAS D ELETED SIMILAR DISALLOWANCE IN THE ASSESSEE'S CASE FOLLOWING THE D ECISION OF THE HON'BLE FIAT, HYDERABAD IN THE ASSESSEE'S CASE IN THE BLOCK ASSESSMENT. IT IS ALSO SEEN THAT FOR THE A.Y.1994-95, 1995-96, A.Y.2000-01 & A.Y.2001-02, THE CIT(A) HAS DELETED SIMILAR DISALLOWANCE IN THE ASSE SSEE'S CASE. TAKING INTO ACCOUNT OF THE DECISIONS RENDERED BY THE CIT(A) IN THE EARLIER YEARS IN THE ASSESSEE'S CASE AND BY THE HON'BLE [TAT VISAKHAPATN AM AND HYDERABAD BENCH, I AM OF THE VIEW THAT THE AO IS NOT JUSTIFIED IN MAKING THE IMPUGNED DISALLOWANCE, AND THE ASSESSEE IS ENTITLED TO DEPRE CIATION AT HIGHER RATE AS CONTENDED. ACCORDINGLY THE AO IS DIRECTED TO DELETE THE IMPUGNED ADDITION. THIS GROUND OF APPEAL IS ALLOWED IN ASSESSEE'S FAVO UR. 7. THE LD. CIT(A) BY FOLLOWING THE ASSESSEES OWN C ASE ALLOWED THE DEPRECIATION CLAIM OF THE ASSESSEE 30% INSTEAD OF 1 5%. WE FIND NO REASON TO INTERFERE WITH THE ORDER PASSED BY THE LD . COMMISSIONER. 8. SO FAR AS TECHNICAL ISSUES RAISED BY THE LD. D.R . IS CONCERNED, WE ARE OF THE OPINION THAT ONCE AN ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE PARTICULARLY IN THE ASSESSEES OWN CASE FO R EARLIER YEARS, THE TECHNICALITIES RAISED BY THE LD. D.R. ARE MERE ACAD EMIC THEREFORE ITA NO.24/VIZAG/2014 M/S. PRATHYUSHA RESOURCES AND INFRA PVT. LTD., VSKP 5 REJECTED. IN VIEW OF THE ABOVE, THE APPEAL FILED BY THE REVENUE IS DISMISSED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 7 TH OCT16. SD/- SD/- ( . ) ( . ) (G. MANJUNATHA) (V. DURGA RAO) /ACCOUNTANT MEMBER /JUDICIAL MEMBER ! /VISAKHAPATNAM: % /DATED : 7.10.2016 VG/SPS '! (! /COPY OF THE ORDER FORWARDED TO:- 1. / THE APPELLANT THE ACIT, CIRCLE-4(1), VISAKHAPA TNAM 2. / THE RESPONDENT M/S. PRATHYUSHA RESOURCES AND IN FRA PVT. LTD. (FORMERLY KNOWN AS PRATHUSHA ASSOCIATES SHIPPING PV T. LTD.), D.NO.25-40-12, NEAR LAKSHMI TALKIES, VISAKHAPATNAM 3. ) / THE CIT, VISAKHAPATNAM 4. ) ( ) / THE CIT(A), VISAKHAPATNAM 5. ! , , , , ! / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // /0 , (SR.PRIVATE SECRETARY) , , ! / ITAT, VISAKHAPATNAM