Enrico Real Estates Pvt. Ltd., , Kolkata V. ITO, Ward - 14(1), Kolkata

ITA 2452/KOL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 9268 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 22-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation; Opportunity of being heard; Unabsorbed depreciation; Set aside
• Section: 143(3); 115JB; 201

Judgement Text

ITA NO. 2452/KOL/2018 ASSESSMENT YEAR: 2015-2016 ENRICO REAL ESTATES PVT. LIMITED 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA B(SMC) BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ) I.T.A. NO. 2452/KOL/2018 ASSESSMENT YEAR: 2015-2016 ENRICO REAL ESTATES PVT. LIMITED,.................. ............................APPELLANT ECO-SPACE BUSINESS PARK, BLOCK-4B, 6 TH FLOOR, PREMISES NO. IIF/11, ACTION AREA-II, KOLKATA [PAN: AABCE 8999 C] -VS.- INCOME TAX OFFICER,................................ ...................................RESPONDENT WARD-14(1), KOLKATA, AAYAKAR BHAWAN, 110, SHANTI PALLY, E.M. BYE-PASS, KOLKATA-700 107 APPEARANCES BY: SHRI DILIP S. DAMLE, FCA, FOR THE APPELLANT SHRI P.K. MONDAL, ADDL. CIT, SR. D.R. , FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : APRIL 02, 2019 DATE OF PRONOUNCING THE ORDER : APRIL 02, 2019 O R D E R PER SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ):- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-5, KOLKATA DAT ED 05.09.2018. 2. THE RELEVANT FACTS OF THE ASSESSEE GIVING RISE T O THIS APPEAL ARE THAT THE ASSESSEE IS A COMPANY, WHICH IS ENGAGED IN CONS TRUCTION BUSINESS. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATI ON WAS FILED BY IT ON 02.06.2016 DECLARING TOTAL INCOME AT NIL AS PER T HE NORMAL PROVISIONS OF THE ACT AND BOOK PROFIT UNDER SECTION 115JB AT R S.12,42,468/-. WHILE COMPUTING THE BOOK PROFIT UNDER SECTION 115JB, A DE DUCTION OF RS.4,85,914/- WAS CLAIMED BY THE ASSESSEE ON ACCOUN T OF UNABSORBED DEPRECIATION. DURING THE COURSE OF ASSESSMENT PROCE EDINGS, IT WAS NOTICED BY THE ASSESSING OFFICER THAT THE ASSESSEE-COMPANY HAD CARRIED FORWARD OF BUSINESS LOSS OF RS.15,88,290/- BUT NO BROUGHT F ORWARD UNABSORBED ITA NO. 2452/KOL/2018 ASSESSMENT YEAR: 2015-2016 ENRICO REAL ESTATES PVT. LIMITED 2 DEPRECIATION WAS CLAIMED IN THE EARLIER YEARS AS PE R THE SCHEDULES OF CARRY FORWARD OF LOSS IN THE ITR. HE, THEREFORE, DI SALLOWED THE CLAIM OF THE ASSESSEE FOR DEDUCTION OF RS.4,85,914/- ON ACCOUNT OF UNABSORBED DEPRECIATION AND COMPUTED BOOK PROFIT OF THE ASSESS EE UNDER SECTION 115JB AT RS.17,28,382/- IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3) VIDE AN ORDER DATED 29.11.2017. 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEF ORE THE LD. CIT(APPEALS). DURING THE COURSE OF APPELLATE PROCEE DINGS BEFORE THE LD. CIT(APPEALS), IT WAS CONTENDED ON BEHALF OF THE ASS ESSEE THAT COMPLETE PARTICULARS AS WELL AS DETAILED BREAK-UP OF THE LOS S BROUGHT FORWARD FROM THE EARLIER YEARS WERE FURNISHED BEFORE THE ASSESSI NG OFFICER TO SHOW THAT THE DEDUCTION PERMISSIBLE IN RESPECT OF LOSS OR DEP RECIATION, WHICHEVER WAS LOWER, WAS ACTUALLY RS.7,94,166/- AND NOT RS.4, 85,914/-. IT WAS CONTENDED THAT THE ASSESSING OFFICER, HOWEVER, COMP LETELY IGNORED THESE PARTICULARS AND DISALLOWED EVEN THE DEDUCTION CLAIM ED BY THE ASSESSEE IN THE RETURN OF INCOME ON ACCOUNT OF UNABSORBED DEPRE CIATION. THE LD. CIT(APPEALS) DID NOT ACCEPT THIS CONTENTION RAISED ON BEHALF OF THE ASSESSEE-COMPANY. HE HELD THAT A FRESH CLAIM WAS MA DE BY THE ASSESSEE FOR THE FIRST TIME DURING THE APPELLATE PROCEEDINGS BEFORE HIM AND IN THE ABSENCE OF THE SUPPORTING DETAILS AND DOCUMENTS, IT WAS NOT ACCEPTABLE. HE ACCORDINGLY PROCEEDED TO CONFIRM THE DISALLOWANC E MADE BY THE ASSESSING OFFICER ON ACCOUNT OF ASSESSEES CLAIM FO R DEDUCTION FOR UNABSORBED DEPRECIATION WHILE COMPUTING THE BOOK PR OFIT UNDER SECTION 115JB. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEAL S), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL ON THE FO LLOWING GROUNDS:- (1) FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) WAS UNJUSTIFIED IN LAW IN UPHOLDING THE AOS ORDER ASSESSING BOOK PROFIT AT RS.17,28,382/- WITHOUT ALL OWING DEDUCTION FOR LOWER OF THE BUSINESS LOSS OR DEPRECI ATION BROUGHT FORWARD FROM THE EARLIER YEAR, EVEN THOUGH THE LAW PERMITTED SUCH SET OFF. ITA NO. 2452/KOL/2018 ASSESSMENT YEAR: 2015-2016 ENRICO REAL ESTATES PVT. LIMITED 3 (2) FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) WRONGLY UPHELD THE AOS COMPUTATION OF B OOK PROFIT U/S 115JB WITHOUT PROPERLY UNDERSTANDING AND APPRECIATING THE SUBMISSIONS MADE AND THE CIT(A)S ORDER PROCEEDED ON WRONG UNDERSTANDING OF THE MATERIAL FA CTS PLACED BEFORE HIM. (3) FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE AO BE DIRECTED TO COMPUTE THE BOOK PROFIT U/S 1 15JB AFTER ALLOWING THE DEDUCTION FOR RS.7,94,166/- BEING THE LOWER AMOUNT BETWEEN DEPRECIATION OR BUSINESS LOSS AS BRO UGHT FORWARD FROM THE EARLIER YEAR. 4. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE LD. COUN SEL FOR THE ASSESSEE HAS SUBMITTED THAT THE RELEVANT DETAILS OF CARRY FORWAR D BUSINESS LOSS OF THE EARLIER YEARS AS COMPUTED AS PER THE NORMAL PROVISI ONS OF THE ACT WERE GIVEN IN THE RETURN OF INCOME BY THE ASSESSEE-COMPA NY AND THERE BEING NO SEPARATE COLUMN OR SPACE PROVIDED IN THE RETURN OF INCOME TO GIVE SUCH DETAILS AS PER THE BOOK PROFIT COMPUTED UNDER SECTI ON 115JB, THE ASSESSEE COULD NOT FURNISH THE SAME. HE HAS SUBMITTED THAT T HE LETTER DATED 01.12.2017, HOWEVER, WAS FILED BY THE ASSESSEE BEFO RE THE ASSESSING OFFICER GIVING ALL THE RELEVANT DETAILS BUT THE SAM E COULD NOT BE CONSIDERED BY THE ASSESSING OFFICER AS HE HAD ALREA DY COMPLETED THE ASSESSMENT ON 29.11.2017. HE HAS CONTENDED THAT THE LD. CIT(APPEALS) OUGHT TO HAVE SOUGHT THE REMAND REPORT FROM THE ASS ESSING OFFICER KEEPING IN VIEW THAT THE RELEVANT DETAILS FURNISHED BY THE ASSESSEE VIDE LETTER DATED 01.12.2017 WERE NOT CONSIDERED BY THE ASSESSING OFFICER WHILE DECIDING THE ISSUE. HE HAS URGED THAT THIS MA TTER MAY, THEREFORE, BE SENT BACK TO THE ASSESSING OFFICER FOR DECIDING THE SAME AFRESH AFTER CONSIDERING THE SAID DETAILS. KEEPING IN VIEW THE R ELEVANCE OF THE DETAILS FURNISHED BY THE ASSESSEE VIDE LETTER DATED 01.12.2 017, WHICH ARE REMAINED TO BE CONSIDERED EITHER BY THE ASSESSING O FFICER OR BY THE LD. CIT(APPEALS), I AM INCLINED TO ACCEPT THE CONTENTIO N OF THE LD. COUNSEL FOR THE ASSESSEE. EVEN THE LD. D.R. HAS NOT RAISED ANY OBJECTION FOR SENDING THE MATTER BACK TO THE ASSESSING OFFICER FOR VERIFY ING THE SAID DETAILS. ITA NO. 2452/KOL/2018 ASSESSMENT YEAR: 2015-2016 ENRICO REAL ESTATES PVT. LIMITED 4 ACCORDINGLY, THE IMPUGNED ORDER OF THE LD. CIT(APPE ALS) IS SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING THE SAME AFRESH AFTER VERIFYING THE DETAILS FURNISHED B Y THE ASSESSEE VIDE LETTER DATED 01.12.2017 AND AFTER GIVING THE ASSESS EE PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATE D AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON APRIL 02, 201 9. SD/- (P.M. JAGTAP) VICE-PRESIDENT (KZ) KOLKATA, THE 2 ND DAY OF APRIL, 2019 COPIES TO : (1) M/S. ENRICO REAL ESTATES PVT. LIMITED, ECO-SPACE BUSINESS PARK, BLOCK-4B, 6 TH FLOOR, PREMISES NO. IIF/11, ACTION AREA-II, KOLKATA (2) INCOME TAX OFFICER, WARD-14(1), KOLKATA, AAYAKAR BHAWAN, 110, SHANTI PALLY, E.M. BYE-PASS, KOLKATA-700 107 (3) COMMISSIONER OF INCOME TAX (APPEALS)-5, KOLKATA , (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.