DCIT, CHENNAI V. M/s. Malabar Hotels Pvt. Ltd., CHENNAI

ITA 2831/CHNY/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8089 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-01-2017
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 29-09-2016
• Court: TRIBUNAL
• Department Lawyers: SHIVA SRINIVAS
• Assessee Lawyers: BASKAR
• Keywords: Depreciation
• Section: 43B

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : CHENNAI , ! ' . #$ % &' BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI DUVVURU RL REDDY , JUDICIAL MEMBER ./ I.T.A.NO.2831/MDS./2016 / ASSESSMENT YEAR : 2012-13 THE DCIT, CORPORATE CRICLE 4(1), CHENNAI. VS. M/S.MALABAR HOTELS PVT LTD., 1/238,OLD MAHALINGAPURAM ROAD, SEMMANCHERRY,CHENNAI. [PAN AADCM 5836 G ] ( () / APPELLANT) ( *+() /RESPONDENT) / APPELLANT BY : SHRI SHIVA SRINIVAS, JCIT D.R /RESPONDENT BY : MR.BASKAR,ADVOCATE / DATE OF HEARING : 29 - 12 - 2016 / DATE OF PRONOUNCEMENT : 25 - 01 - 2017 , / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-8,CHENNAI DATED 30.06.2016 PERTAINING TO ASSESSMENT YEAR 2012-13. 2. THE MAIN GRIEVANCE OF THE REVENUE IS WITH REGAR D TO DELETION OF ADDITION OF ` 98,50,000/- MADE U/S.32 OF THE ACT. ITA NO.2831/16 :- 2 -: 3. THE FACTS OF THE ISSUE ARE THAT THE ASSESSEE CL AIMED DEPRECIATION ON TRADE MARK. BEFORE THE AO, THE ASSE SSEE HAD NOT PRODUCED ANY DETAILS REGARDING OWNERSHIP OF THE TR ADE MARK. HOWEVER, THE ASSESSEE FILED FORM NO.15CA AND COPY O F UNSIGNED AGREEMENT WITHOUT ANY SUPPORTING AGREEMENT. HENCE, THE AO DISALLOWED THE CLAIM OF ASSESSEE. AGGRIEVED, THE AS SESSEE CARRIED THE APPEAL BEFORE THE LD.CIT(A). DURING THE APPELLATE P ROCEEDINGS, THE ASSESSEE STATED BEFORE LD.CIT(A) THAT THIS TRADE MA RK WAS ACQUIRED IN THE EARLIER ASSESSMENT YEAR AND DEPRECIATION IN THE YEAR UNDER CONSIDERATION WAS CLAIMED ON WRITTEN DOWN VALUE (WD V). BASED ON THE ARGUMENT OF THE LD.A.R, SINCE THE DEPRECIATION WAS ALLOWED IN PRECEDING ASSESSMENT YEAR, THE CIT(A) ALLOWED THE C LAIM OF ASSESSEE. AGAINST THIS, THE REVENUE IS IN APPEAL BEFORE THIS TRIBUNAL. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. BEFORE US, LD.A.R COULD NOT BE ABLE TO SHOW THAT THIS TRADE MARK WAS NOT ACQUIRED IN THE ASSESSMENT YEAR UNDER CONSIDERATION AND IT WAS CARRIED FORWARD VALUE FROM THE EARLIER Y EAR. HENCE, FOR THE PURPOSE OF VERIFYING WHETHER THIS IS CARRIED FORWAR D FROM THE EARLIER YEAR AND DEPRECIATION WAS CLAIMED ON THE WDV OR NOT , WE SET ASIDE THE ORDER OF THE CIT(A) AND REMIT BACK TO THE FILE OF AO FOR FRESH CONSIDERATION TO DECIDE AFRESH. THE ASSESSEE IS DIR ECTED TO FILE ITA NO.2831/16 :- 3 -: NECESSARY DOCUMENTS TO SUPPORT ITS CLAIM. THIS GROU ND OF ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 5. THE NEXT GROUND IS WITH REGARD TO DELETING DISA LLOWANCE OF ` 25,07,850/- BEING AMOUNT PAID TOWARDS PF & ESI U/S .36(1)(VA) R.W.S.2(24)(X) OF THE ACT. 6. THIS ISSUE CAME FOR CONSIDERATION BEFORE THE JU RISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. INDUSTRIAL SECURI TY & INTELLIGENCE INDIA PVT LTD. IN TCA NO. 585 & 586 OF 2015 DATED 2 4.07.2015 WHEREIN OBSERVED THAT:- 5. WE FIND THAT THE TRIBUNAL HAS RIGHTLY RELIED O N THE DECISION OF THE SUPREME COURT IN THE CASE OF CIT VS. ALOM EXTRU SIONS LIMITED REPORTED IN 391 ITR 306, WHEREBY, THE SUPREME COURT HELD THAT OMISSION OF SECTION PROVISO TO SEC.43B AND AMENDMEN T TO THE FIRST PROVISO BY FINANCE ACT, 2003 ARE CURATI VE IN NATUE AND ARE EFFECTIVE RETROSPECTIEL I.E. W.E.F 01.04.1988 I .E THE DATE OF INSERTION OF FIRST PROVISO. THE DELHI HIGH COURT I N THE CASE OF CIT VS. AIMIL LTD., REPORTED IN 321 ITR 508 HELD THAT I F THE ASSESSEE HAD DEPOSITED EMPLOYEES CONTRIBUTION TOWARDS PROVI DENT FUND AND ESI AFTER DUE DATE AS PRESCRIBED UNDER THE RELE VANT ACT, BUT BEFORE THE DUE DATE OF FILING OF RETURN UNDER THE I NCOME TAX ACT, NO DISALLOWANCE COULD BE MADE IN VIEW OF PROVISIONS 43B AS AMENDED BY FINANCE ACT, 2003. 6. IN THE PRESENT CASE, THE ASSESSEE HAD REMITTED THE EMPLOYEES CONTRIBUTION BEYOND THE DUE DATE FOR PAYMENT, BUT W ITHIN THE DUE ITA NO.2831/16 :- 4 -: DATE FOR FILING THE RETURN OF INCOME. HENCE, FOLLOW ING THE AFORESAID DECISIONS, WE FIND NO REASON TO DIFFER WI TH THE FINDINGS OF THE TRIBUNAL. 7 . ACCORDINGLY, WE CONFIRM THE ORDER OF LD.CIT(A). THIS GROUND OF REVENUE STANDS DISMISSED. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS PAR TLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 25 TH JANUARY, 2017, AT CHENNAI. SD/ - SD/ - ! ' # . $ %& ' ( DUVVURU RL REDDY ) ) % / JUDICIAL MEMBER ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER () / CHENNAI *+ / DATED: 25 TH JANUARY, 2017. K S SUNDARAM +,-- ./-0/ / COPY TO: - 1 . / APPELLANT 3. - 1-!' / CIT(A) 5. /23- 4 / DR 2. / RESPONDENT 4. - 1 / CIT 6. 3&-5 / GF