The ACIT, Central Circle,1, Surat V. Khemani Distilleries Pvt. Ltd., Daman

ITA 2980/AHD/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6188 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 8 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-07-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 11-07-2011
• Assessment Year: 2008-2009
• Appeal Filed On: 06-11-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MATHIVANAN M
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO. 2980/ AHD/2009 (ASSESSMENT YEAR 2008-09) ACIT, CC-1, SURAT VS. M/S.KHEMANI DISTELLERIES P. LTD., KACHIGAM ROAD, RINGANWADA, DAMAN PAN/GIR NO. : AAACK9738N (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI MATHIVANAN M, SR. DR RESPONDENT BY: SHRI BANDISH SOPARKAR, AR O R D E R PER SHRI A. K. GARODIA, AM:- THIS IS REVENUES APPEAL AGAINST THE ORDER OF CIT( A) II, AHMEDABAD DATED 05.08.2009 FOR THE ASSESSMENT YEAR 2008-09. THE GR OUNDS RAISED BY THE REVENUE ARE AS UNDER: I) THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS I N DELETING THE DISALLOWANCE MADE BY THE A.O. AMOUNTING TO RS.72711 7/-ON A/C OF DEPRECIATION RELYING ON THE DECISION OF THE HONBLE ITAT, AHMEDABAD IN THE ASSESSEE'S OWN CASE FOR A.Y.02-03 HOLDING THAT THE WDV CAN BE ASCERTAINED ONLY BY REDUCING ACTUAL DEPRECIATION ALLOWED AND NOT THE AMOUNT THAT OUGHT TO HAVE BEEN ALLOWED. II) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE A .O. I.T.A.NO. 2980/AHD/2009 2 III) IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE CIT (A) BE SET ASIDE AND THAT OF THE A.O. BE RESTORED TO THE ABOVE EXTENT. 2. LD. D.R. OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER WHEREAS LD. A.R. OF THE ASSESSEE SUPPORTED THE ORDER OF LD. CIT(A). HE ALSO SUBMITTED A COPY OF THE TRIBUNAL ORDER IN ASSESSEES OWN CASE FOR THE A SSESSMENT YEAR 2001-02 IN I.T.A. NO. 3385/AHD/2004 DATED 16.01.2009 AND FOR T HE ASSESSMENT YEAR 2002- 03 IN I.T.A. NO. 1885/AHD/2005 DATED 28.11.2008. H E SUBMITTED THAT THE ISSUE INVOLVED IN THE PRESENT YEAR IS SQUARELY COVERED BY THESE TWO TRIBUNAL ORDERS. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BEL OW. WE FIND THAT THE A.O. HAS REDUCED THE DEPRECIATION CLAIMED BY THE ASSESSE E ON THIS BASIS THAT THE OPENING WDV OF THE ASSESSEE SHOULD GO DOWN ON THE B ASIS THAT DEPRECIATION ALTHOUGH NOT CLAIMED BY THE ASSESSEE IN ASSESSMENT YEAR 1996-97 TO 2000-01, IT HAS TO BE CONSIDERED AS CLAIMED AND ALLOWED AND AS A CONSEQUENCE, WDV SHOULD BE REDUCED TO THAT EXTENT. IN ASSESSMENT Y EAR 2001-02 AND 2002-03 ALSO, THE SAME ACTION WAS TAKEN BY THE A.O. AND DEPRECIAT ION ALLOWED BY HIM WAS AFTER REDUCING THE OPENING WDV. THE TRIBUNAL HAS NOTED IN ITS ORDER IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2002-03 THAT THE ASSESSEE HAS NOT CLAIMED DEPRECIATION ON THE FIXED ASSETS FOR ASSESS MENT YEAR 1996-97 TO ASSESSMENT YEAR 2000-01. IN THAT YEAR, THE TRIBUNA L HAS HELD THAT ONLY THAT DEPRECIATION HAS TO BE REDUCED FROM WDV WHICH HAS B EEN ALLOWED TO THE ASSESSEE AND SINCE DEPRECIATION FOR THE ASSESSMENT YEAR 1996-97 TO 2000-01 WAS NEITHER CLAIMED BY THE ASSESSEE NOR ALLOWED BY THE A.O. IN THE RESPECTIVE YEARS, NOTIONAL DEPRECIATION FOR THOSE YEARS CANNOT BE RED UCED FROM WDV FOR ALLOWING DEPRECIATION IN ANY SUBSEQUENT YEAR. IN THE PRESEN T YEAR, THE FACTS ARE IDENTICAL AND ONCE WDV IN ASSESSMENT YEAR 2001-02 AND 2002-03 HAVE BEEN APPROVED BY THE TRIBUNAL WITHOUT REDUCING THE NOTIONAL DEPRECIA TION FOR THE ASSESSMENT YEAR 1996-97 TO 2000-01, WDV IN THE PRESENT YEAR HAS TO BE ACCEPTED WITHOUT I.T.A.NO. 2980/AHD/2009 3 REDUCING ANY SUCH NOTIONAL DEPRECIATION FOR THOSE Y EARS I.E. ASSESSMENT YEAR 1996-97 TO 2000-01. NO DIFFERENCE IN THE FACTS COU LD BE POINTED OUT BY THE LD. D.R. AND HENCE, WE FIND NO REASON TO TAKE A CONTRAR Y VIEW IN THE PRESENT YEAR. WE, THEREFORE, DECLINE TO INTERFERE IN THE ORDER OF LD. CIT(A). 4. IN THE RESULT, APPEAL OF THE REVENUE STANDS DISM ISSED. 5. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH JULY, 2011. SD./- SD./- (BHAVNESH SAINI) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED : 15 TH JULY, 2011 SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD 6. THE GUARD FILE 1. DATE OF DICTATION 12/7 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 13/7 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 14/7 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 15/7 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S. 15/7 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 15/7 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. I.T.A.NO. 2980/AHD/2009 4