M/s. Goverdhan Enterprise, Ahmedabad V. The Income tax Officer,Ward-10(2), Ahmedabad

ITA 2462/AHD/2011

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 67689 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 11 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 19-09-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 30-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Assessee Lawyers: J M TRIVEDI
• Keywords: Gift; Depreciation; Opportunity of being heard; Unabsorbed depreciation
• Section: 142(1)

Judgement Text

, , , , , , , , , , , , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD .., BEFORE SHRI B.P.JAIN, ACCOUNTANT MEMBER !./ I.T.A.NO.2462/AHD/2011 ( # $%# # $%# # $%# # $%# / / / / ASSESSMENT YEAR : 2008-09) M/S.GOVERDHAN ENTERPRISE 203-204, ISCON AVENUE NR.CHOISE RESTAURANT CG ROAD, AHMEDABAD / VS. THE INCOME TAX OFFICER WARD-10(2) AHMEDABAD & !./' !./ PAN/GIR NO. : AAEFG 9424 A ( &( / // / APPELLANT ) .. ( )*&( / RESPONDENT ) &( + / APPELLANT BY : SHRI J.M.TRIVEDI, AR )*&( , + / RESPONDENT BY : SHRI B.L.YADAV, SR.DR -$. , /0 / / / / DATE OF HEARING : 19/09/2013 12% , /0 / DATE OF PRONOUNCEMENT : 19/09/2013 3 / O R D E R THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER OF THE LD.CIT(APPEALS)-XVI, AHMEDABAD DATED 12/08/2011 FOR THE ASSTT.YEAR 2008-09. THE ASSESSEE HAS RAISED THE FOLLOWING GRO UND OF APPEAL:- THAT THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS I N CONFIRMING DISALLOWANCE OF SET OFF OF UNABSORBED DEPRECIATION TO THE EXTENT OF RS.97,941/- AGAINST CURRENT YEARS INCOME WITHOUT A PPRECIATING FACTS, LAW AND CASE LAWS ON SUBJECT. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSI NG OFFICER ON THE BASIS OF PROVISIONS OF SECTION 72 OF THE IT ACT, WA S OF THE VIEW THAT UNABSORBED DEPRECIATION CAN BE SET OFF AGAINST THE PROFIT AND LOSS OF ANY BUSINESS CARRIED ON BY THE ASSESSEE. THE ASSESSEE HAD NOT CARRIED OUT ANY ITA NO.2462/AHD /2011 M/S.GOVERDHAN ENTERPRISE VS. ITO ASST.YEAR 2008-09 - 2 - BUSINESS ACTIVITIES DURING THE YEAR UNDER CONSIDERA TION BUT CLAIMED THE SET OFF OF CARRIED FORWARD DEPRECIATION AGAINST PROPERT Y INCOME. SECONDLY, THE ASSESSEE HAD NOT ESTABLISHED ANY SUPPORTING EVI DENCE AS TO WHETHER THE LOSS OF RS.94,941/- WAS A BUSINESS LOSS OR UNAB SORBED DEPRECIATION. THE CLAIM OF SET OFF OF UNABSORBED DEPRECIATION FOR RS.97,941/- AGAINST PROPERTY INCOME WAS DISALLOWED BY THE AO AND ADDED BACK TO THE INCOME OF THE ASSESSEE. THE LD.CIT(A) CONFIRMED TH E ACTION OF AO. 3. THE LD.COUNSEL FOR THE ASSESSEE INVITED OUR ATTE NTION TOWARDS PAGE NO.9 OF THE PAPER-BOOK THAT THE ASSESSEE HAS CARRIE D ON THE BUSINESS AS PER P&L ACCOUNT FOR THE YEAR ENDING 31 ST MARCH,2008 AND TOTAL SALE OF RS.1,52,455/- HAS BEEN DECLARED ON NET PROFIT OF RS .2,37,441/-, THEREFORE, THE ALLEGATION OF THE LD.CIT(A) THAT THE ASSESSEE I S NOT CARRYING OUT ANY ACTIVITY IS NOT CORRECT. THE LD.COUNSEL FOR THE AS SESSEE ALSO INVITED OUR ATTENTION TO THE ORDER OF THE AO THAT THE ORDER IS NON-SPEAKING ONE AND, THEREFORE, ANY ORDER WHICH IS A NON-SPEAKING OR AN ORDER WITHOUT ANY REASON IS NO ORDER AND, THEREFORE, THE LD.COUNSEL F OR THE ASSESSEE PRAYED TO ALLOW THE APPEAL OF THE ASSESSEE. 3.1. ON THE OTHER HAND, LD.DR OF THE REVENUE RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 4. I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED T HE FACTS OF THE CASE. AT THE OUTSET, THE ORDER OF THE AO IN TOTO IS REPRO DUCED AS UNDER FOR THE SAKE OF CONVENIENCE: ITA NO.2462/AHD /2011 M/S.GOVERDHAN ENTERPRISE VS. ITO ASST.YEAR 2008-09 - 3 - RETURN OF INCOME HAS BEEN FILED ON 17.03.2009 DECL ARING TOTAL INCOME AT RS.NIL. THE RETURN HAS BEEN PROCESSED U/ S.143(1) OF THE I.T.ACT, 1961. THE CASE IS SELECTED FOR SCRUTINY U NDER CASS AND ISSUED NOTICE U/S.143(2) ON 27.8.2009 AND SERVED UP ON THE ASSESSEE. SUBSEQUENTLY, FRESH NOTICES U/S.143(2) A ND 142(1) WERE ISSUED ON 15.6.2010 DUE TO CHANGE OF INCUMBENT IN O FFICE. 2. IN RESPONSE TO NOTICES, MS.ISHITA SHAH FROM M/S .M.R.PANDHI & ASSOCIATES, DULY AUTHORIZED, ATTENDED AND SUBMITTED THE DETAILS. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF TRADING OF SMALL ELECTRIC TOYS, GIFT ARTICLES, ETC. AGAINST THE HOUSE PROPERT Y INCOME IS DISALLOWED AND ADDED BACK TO THE TOTAL INCOME OF TH E ASSESSEE. 4. SUBJECT TO THE ABOVE REMARKS AND FROM THE DATA AVAILABLE ON RECORD AND MADE AVAILABLE DURING THE COURSE OF HEAR ING, THE TOTAL INCOME OF THE ASSESSEE IS DETERMINED AS UNDER:- HOUSE PROPERTY INCOME AS PER STATEMENT RS.4,45,200 /- LESS:BUSINESS LOSS CLAIMED AS SET OFF RS.3,47,25 9/- TAXABLE INCOME RS. 97,941/- ROUNDED OFF TO RS. 97,940/- ======== ASSESSED U/S.143(3) OF THE ACT. GIVE CREDIT FOR PR EPAID TAXES, AFTER VERIFICATION. ISSUE DEMAND NOTICE & CHALLAN. ISSU E SHOW CAUSE NOTICE U/S.271F OF THE ACT. 4.1. FROM THE PERUSAL OF THE AOS ORDER, IT IS EVID ENT THAT THE ORDER IS NON-SPEAKING ONE AND NOTHING SUBMITTED BY THE ASSES SEE HAS BEEN CONSIDERED AND IF CONSIDERED, NO REASONING HAS BEEN GIVEN. THE LD.CIT(A) HAS ALSO NOT TAKEN INTO CONSIDERATION THE SUBMISSION OF THE ASSESSEE AS ARGUED BY LD.COUNSEL FOR THE ASSESSEE BEFORE US IN THE RIGHT PERSPECTIVE, THEREFORE, IN THE CIRCUMSTANCES AND FA CTS OF THE CASE, IT WILL BE IN THE INTEREST OF JUSTICE, IF THE MATTER IS SET ASIDE TO THE FILE OF AO TO ITA NO.2462/AHD /2011 M/S.GOVERDHAN ENTERPRISE VS. ITO ASST.YEAR 2008-09 - 4 - DECIDE THE ISSUE DE NOVO FOR PASSING A SPEAKING ORDER, AFTER AFFORDING AN ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . IT IS ORDERED ACCORDINGLY. THUS, GROUND RAISED BY THE ASSESSEE I S ALLOWED BUT FOR STATISTICAL PURPOSES. 5 . IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FO R STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE SD/- ( .. ) ( B.P. JAIN ) ACCOUNTANT MEMBER AHMEDABAD; DATED 19/ 09 /2013 60.., $.../ T.C. NAIR, SR. PS 3 , )/7 87%/ 3 , )/7 87%/ 3 , )/7 87%/ 3 , )/7 87%// COPY OF THE ORDER FORWARDED TO : 1. &( / THE APPELLANT 2. )*&( / THE RESPONDENT. 3. !! / -9 / CONCERNED CIT 4. -9() / THE CIT(A)-XVI, AHMEDABAD 5. 7$:; )/ , , / DR, ITAT, AHMEDABAD 6. ;<# =. / GUARD FILE. 3- 3- 3- 3- / BY ORDER, *7/ )/ //TRUE COPY// > >> >/ // / ! ! ! ! ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD