BOB CAPITAL MARKETS LTD, MUMBAI V. DCIT 2(1), MUMBAI

ITA 273/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 84065 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 9 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-11-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 05-11-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 11-01-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RUDOLPH N DSOUZA
• Assessee Lawyers: ANAY KISNADWALA
• Keywords: Depreciation; Bonafide belief; Capital expenditure

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI .., . .!'#, $ , % BEFORE SHRI I.P.BANSAL, JM AND SHRI N.K.BILLAIYA, A M ITA NO.273/MUM/2012 : ASST.YEAR 2008-09 BOB CAPITAL MARKET LIMITED, MEHAR CHAMBERS, DR. SUNDERLAL BEHL MARG, OFF R. KAMANI MARG, BALLARD ESTATE, MUMBAI 400038 PAN: AAACB 4199C THE DCIT 2(1), MUMBAI. ( &' / // / APPELLANT) / VS. ( )*&'/ RESPONDENT) &' + , + , + , + , /APPELLANT BY : SHRI ANAY KISNADWALA )*&' + , + , + , + , /RESPONDENT BY : SHRI RUDOLPH N. DSOUZA + -.$ / / / / DATE OF HEARING : 05.11.2014 /01 + -.$ / DATE OF PRONOUNCEMENT : 05.11.2014 2 2 2 2 / / / / O R D E R PER I.P.BANSAL (JM) : THIS IS AN APPEAL FILED BY THE ASSESSEE AND IT IS DIRECTED AGAINST ORDER PASSED BY LD. CIT(A)-4, MUMBAI DATED 28/10/2011 FOR ASSESSMENT YEAR 2008- 09. GROUNDS OF APPEAL READ AS UNDER: 1. ON THE FACTS AND THE CIRCUMSTANCES OF THE APPEL LANTS CASE AND IN LAW THE LD. CIT(A) ERRED IN CONFIRMING THE LD. AOS ACTION IN A SSESSING THE INTEREST INCOME UNDER THE HEAD INCOME FROM OTHER SOURCES. 2. ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANT S CASE AND IN LAW THE ID. CIT(A) ERRED IN CONFIRMING THE LD. AO MAKING AN ADDITION R S.34,38,772/- ON ACCOUNT OF THE IMPAIRMENT LOSS FOR THE PURPOSE OF COMPUTATION OF BOOK PROFITS U/S II5JB. 3. ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANT S CASE AND IN LAW THE LD. CIT(A) ERRED IN CONFIRMING THE LD. AO DISALLOWING D EPRECIATION OF RS. 4,47,532/- ON SOFTWARE. 4. ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANT S CASE IN LAW THE LD. CIT(A) ERRED IN CONFIRMING THE LD. A.O ERRED IN MAKING AN ADDITION OF RS.5,00,000/- ON ACCOUNT OF ADVANCE MEMBERSHIP FEES EVEN THOUGH THE SAME HAS BEEN REVERSED IN THE SUBSEQUENT YEAR. ITA NO.273/MUM/2012 : ASST.YEAR 2008-09 2 5. ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANT S CASE AND IN LAW THE ID. CIT(A) ERRED IN CONFIRMING THE ID. A.O ERRED IN NOT ALLOWI NG DEPRECIATION ON SOFTWARE TREATED AS CAPITAL EXPENDITURE IN THE EARLIER YEARS . 6. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER, MODIFY AND OR WITHDRAW ANY OF THE ABOVE GROUNDS OF APPEAL, WHICH ARE WITHOUT P REJUDICE TO ONE ANOTHER. 2. AT THE OUTSET IT WAS SUBMITTED BY LD. AR THAT TH E MATTER IS REQUIRED TO BE RESTORED BACK TO THE FILE OF LD. CIT(A) AS THE APP EAL FILED BEFORE HIM WAS DISPOSED OF BY EX-PARTE ORDER , QUA THE ASSESSEE F OR DEFAULT OF NON-APPEARANCE ON 24/10/2011. IT WAS SUBMITTED BY LD. AR THAT THE ASSESSEE IS PUBLIC SECTOR UNDERTAKING AND DEFAULT OF NON-APPEARANCE BE FORE LD. CIT(A) WAS FOR REASONABLE AND SUFFICIENT CAUSE EXPLAINED IN THE AF FIDAVIT BEING FILED BY THE MANAGING DIRECTOR OF THE ASSESSEE COMPANY NAMELY SH RI. GOLAK BIHARI PANDA. LD. AR HAS PLACED BEFORE US AN AFFIDAVIT OF SHRI G OLAK BIHARI PANDA STATING THEREIN THAT THE NOTICE OF HEARING BEFORE LD. CIT(A ) WAS DULY FORWARDED WITH A COVERING LETTER TO THE OFFICE OF M/S.KAILASHCHAND J AIN & CO., CHARTERED ACCOUNTANTS, WHO HAD APPEARED BEFORE THE A.O. AC CORDING TO THE BONAFIDE BELIEF OF THE ASSESSEE IN SUCH A SITUATION TO WHOM THE APPEAL HAS BEEN HANDED OVER SHOULD DO ALL THE NECESSARY FORMALITIES TO AT TEND BEFORE THE AUTHORITY AND DUE TO THE FAILURE OF THE SAID CHARTERED ACCOUNTANT ASSESSEE COULD NOT REPRESENT ON THE FIXED DATE OF HEARING BEFORE LD. C IT(A). IT WAS FURTHER SUBMITTED BY LD. AR THAT THE ASSESSEE BEING PUBLIC SECTOR UNDERTAKING CANNOT BE SAID TO HAVE INTENTIONALLY AVOIDED THE DATE OF H EARING AND ASSESSEE IS READY TO EXTEND THE FULL CO-OPERATION IF THE MATTER IS RE STORED BACK TO THE FILE OF LD. CIT(A). 3. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDER PASSED BY LD. CIT(A). 4. WE HAVE HEARD BOTH THE PARTIES AND WE HAVE CAREF ULLY GONE THROUGH THE CONTENTS OF THE AFFIDAVIT PLACED ON RECORD. WE ARE SATISFIED THAT THE NON- ATTENDANCE OF THE ASSESSEE BEFORE LD. CIT(A) ON 24/ 10/2011 WAS FOR REASONABLE AND SUFFICIENT CAUSE. THEREFORE, ACCEPTING THE REQ UEST OF THE ASSESSEE WE RESTORE THE ENTIRE APPEAL TO THE FILE OF LD. CIT(A) TO RE-ADJUDICATE THE APPEAL AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF HEARING. TO ENSURE COMPLIANCE BY THE ASSESSEE WE DIRECT THE ASSESSEE T O APPEAR BEFORE LD. CIT(A) ON 16/12/2014 WHEN LD. CIT(A) WILL TAKE UP THE MATT ER FOR HEARING. LD. AR OF ITA NO.273/MUM/2012 : ASST.YEAR 2008-09 3 THE ASSESSEE HAS DULY NOTED THE FIXED DATE OF HEAR ING BEFORE LD. CIT(A). WE DIRECT ACCORDINGLY. 4.1 AS WE ARE RESTORING THE ENTIRE APPEAL TO THE FI LE OF LD. CIT(A) FOR RE- ADJUDICATION IN THE MANNER AFORESAID, THEREFORE, WE DO NOT EXPRESS ANY OPINION UPON ANY OF THE ISSUES WHICH HAVE BEEN RAISED IN TH E PRESENT APPEAL SO FAR AS IT RELATES TO MERITS OF THE SAME. WITH THESE OBSER VATIONS THE APPEAL FILED BY THE ASSESSEE IS CONSIDERED TO BE ALLOWED FOR STATISTICA L PURPOSES IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 5 TH NOV. 2014. 2 + /01 34 05/11/2014 0 + : SD/- SD/- (N.K.BILLAIYA) (I.P.BANSAL) $ $ $ $ / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; 3 DATED : 5 TH NOV. 2014. VM. 2 + )-! ; !1- 2 + )-! ; !1- 2 + )-! ; !1- 2 + )-! ; !1-/ COPY OF THE ORDER FORWARDED TO : 1. &' / THE APPELLANT 2. )*&' / THE RESPONDENT. 3. <() / THE CIT, MUMBAI. 4. < / CIT(A)- , MUMBAI 5. !?: )-, , / DR, ITAT, MUMBAI 6. :@ A / GUARD FILE. 2 2 2 2 / BY ORDER, *!- )- //TRUE COPY// B BB B/ // /C D C D C D C D (DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI