Jog Enggineering Ltd, Pune V. Income-Tax Officer,

ITA 2480/PUN/2016

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0603 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 1 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 25-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ARISES OUT OF PASSED
• Keywords: Depreciation; Difference of opinion; Unabsorbed depreciation; Change of opinion
• Section: 143(3); 115JB; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER . / ITA NO.2480/PUN/16 / ASSESSMENT YEARS : 2008-09 JOG ENGINEERING LTD., C/O. SACHIN AMDEKAR, FLAT NO.302, JAI RAVI APPT., RAJENDRANAGAR, NAVI PETH, PUNE 411 030 PAN : AABCJ2990E VS. ITO, WARD-11(2), PUNE (APPELLANT) (RESPONDENT) / ORDER PER R.S.SYAL, VP : THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDER PASSE D BY THE CIT(A) ON 01-07-2016 IN RELATION TO THE ASSESSME NT YEAR 2008-09. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSE E FURNISHED RETURN DECLARING TOTAL INCOME OF NIL. THE ASSESSM ENT WAS COMPLETED U/S. 143(3) OF THE INCOME-TAX ACT, 1961 APPELLANT BY SHRI S.H. AMDEKAR RESPONDENT BY MS. NANDITA KANCHAN DATE OF HEARING 29-11-2018 DATE OF PRONOUNCEMENT 30 -11-2018 ITA NO.2480/PUN/2016 JOG ENGINEERING LTD., 2 (HEREINAFTER ALSO CALLED `THE ACT) ON 02-12-2010 DETERMININ G TOTAL INCOME AT NIL. THEREAFTER, THE AO INITIATED RE-ASSESSMENT PROCEEDINGS ON THE GROUND THAT THE ASSESSEE DID NOT PROPE RLY COMPUTE BOOK-PROFIT U/S. 115JB OF THE ACT. NOTICE WAS ISSU ED U/S. 148 AND RE-CALCULATION OF INCOME WAS DONE U/S. 115JB IN THE ORDER PASSED U/S 143(3) READ WITH SECTION 147 OF THE ACT. THE LD. CIT(A) UPHELD THE ASSESSMENT ORDER ON THIS ISSUE. 3. THE FIRST ISSUE RAISED BY THE ASSESSEE IN ITS APPEAL IS AGAINST WRONG INITIATION OF RE-ASSESSMENT PROCEEDINGS. THE LD. AR SUBMITTED THAT IT WAS A CASE OF CHANGE OF OPINION BY TH E AO AND HENCE, THE SAME SHOULD NOT HAVE BEEN BROUGHT W ITHIN THE PURVIEW OF SECTION 147. 4. IT CAN BE SEEN FROM THE ASSESSMENT ORDER PASSED B Y THE AO U/S. 143(3) R.W.S.147 THAT HE HAS SIMPLY RE-COMPUTED THE AMOUNT OF UNABSORBED DEPRECIATION AND UNABSORBED LOSS, THAT HAS BEEN SET OUT ON THE PENULTIMATE PAGE OF HIS ORDER, WHICH IN HIS OPINION WAS NOT CORRECTLY DONE IN THE ORIGINAL ASSESSMEN T ORDER PASSED U/S 143(3) OF THE ACT. THE FACT THAT THE AS SESSEE COMPUTED BOOK PROFIT U/S. 115JB AND DECLARED THE SAME ALONG WITH THE RETURN OF INCOME, IS NOT DENIED. THE AO HAVING ACCEPTED SUCH COMPUTATION IN THE COURSE OF ORIGINAL ITA NO.2480/PUN/2016 JOG ENGINEERING LTD., 3 ASSESSMENT, COULD NOT HAVE VENTURED TO FORM A DIFFERENT OPINION ON SUCH COMPUTATION SO AS TO WARRANT THE INVOCATION OF SECTION 147. IT IS A CLEAR-CUT CASE OF `CHANGE OF OPINION BY THE AO, WHICH OBVIOUSLY CANNOT BE SUSTAINED IN THE RE-ASSESSME NT PROCEEDING. WE, THEREFORE, SET-ASIDE THE INITIATION OF RE- ASSESSMENT PROCEEDINGS AND THE CONSEQUENTIAL ORDER FLOWING THEREFROM. THIS GROUND IS ALLOWED. 5. IN VIEW OF OUR DECISION ON THE INITIATION OF RE-ASSESSMEN T PROCEEDINGS, THERE IS NO NEED TO GO INTO THE MERITS OF THE COMPUTATION OF BOOK PROFIT U/S 115JB SINCE THE ASSESSMENT ORDER HAS ITSELF BEEN QUASHED. 6. IN THE RESULT, APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH NOVEMBER, 2018. SD/- SD/- (VIKAS AWASTHY) (R.S.SYAL) JUDICIAL MEMBER VICE PRESID ENT PUNE; DATED : 30 TH NOVEMBER, 2018 ITA NO.2480/PUN/2016 JOG ENGINEERING LTD., 4 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. ( ) / THE CIT (APPEALS),-7, PUNE 4. 5. THE PR. CIT-6, PUNE , , / DR B, ITAT, PUNE; 6. / GUARD FILE. // TRUE COPY // / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE DATE 1. DRAFT DICTATED ON 29-11-18 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 29-11-18 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. 5. APPROVED DRAFT COMES TO THE SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 7. FILE SENT TO THE BENCH CLERK 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER. *