Appeal details
Counselvise Citation
[2023] 100 COUNSELVISE.COM (IT) 4546 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
3 month(s) 26 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
20-12-2023
Appeal Filed By
Assessee
Order Result
PartlyAllowed
Bench Allotted
C
Next Hearing Date
19-12-2023
Assessment Year
2012-2013
Appeal Filed On
24-08-2023
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH, MUMBAI BEFORE SHRI PRASHANT MAHARISHI, AM AND MS. KAVITHA RAJAGOPAL, JM ITA No. 2995 & 2996 /Mum/2023 (Assessment Year: 2011-12 & 12-13) O wens-Co rnin g (In dia) P ri vate Lim ited Alpha Bui ldin g, 7th Floo r, Hi ranandani Com pl ex, Po wai, Mum bai-40 0 076 Vs. Dy. Commissioner of Income Tax, Central Circle 7(3)(1) Aaykar Bhavan, M.K. Road, Mumbai-400 020 (Appellant) (Respondent) PAN No. AAACO1739M Assessee by : Shri Sandeep Balla & Ms. Kinjal Mehta, ARs Revenue by : Shri H.M. Bhatt, DR Date of hearing: 20.12.2023 Date of pronouncement : 21.12.2023 O R D E R PER BENCH: 01. These are the two appeals for A.Y. 2011-12 and 2012-13 filed in ITA No.2995 and 2996/Mum/2023 for A.Y. 2011-12 and 2012-13 by assessee/ appellant involving identical issue wherein the National Faceless Appeal Centre, Delhi (NFAC) [the learned CIT (A)] passed separate orders both dated 6th July, 2023, are under challenged. 02. The identical grounds are as under:- Grounds for A.Y. 2011-12 1.0 Re.: Disallowance of amortization of the premium paid for the leasehold land of Rs. 20,14,928: Page | 2 ITA No. 2955 & 2966/Mum/2023 Owens-Corning (India) Pvt. Ltd; A.Y. 2011-12 1.1 The Commissioner of Income-tax (Appeals) has erred in confirming the disallowance of Rs. 20,14,928/- being the amortized amount of the premium paid for acquiring lease rights over a plot of land. 1.2 The Appellant submits that considering the facts and circumstances of its case and the law prevailing on the subject, the said amount amortised is deductible while computing its total income and the action of the Assessing Officer/Commissioner of Income-tax (Appeal) in this respect is erroneous, misconceived and not in accordance with the law. 1.3 The Appellant submits that the Assessing Officer be directed to delete the disallowance so made and to re-compute its total income accordingly. 2.0 Re.: Disallowance of depreciation on additions to the fixed assets made during the Assessment Year 2006-2007 of Rs. 12,70,641: 2.1 The Commissioner of Income-tax (Appeals) has erred in confirming the disallowance of depreciation of Rs. 12,70,641/- out of the total depreciation of Rs. 27,58,477/- claimed by the Appellant during year under consideration on addition to asset made during Assessment Year 2006-07. 2.2 The Appellant submits that considering the facts and circumstances of its case and the law prevailing on the subject, it is entitled to claim depreciation of Rs. 12,70,641/- and the action of the Assessing Officer/Commissioner of Income-tax (Appeal) in this Page | 3 ITA No. 2955 & 2966/Mum/2023 Owens-Corning (India) Pvt. Ltd; A.Y. 2011-12 respect is erroneous, misconceived and not in accordance with the law. 2.3 The Appellant submits that the Assessing Officer be directed to allow depreciation as claimed by it and to re-compute its total income accordingly. 3.0 Re: Non granting set off of brought forward unabsorbed depreciation: 3.1 The Commissioner of Income-tax (Appeals) has erroneously missed in providing specific finding on ground of appeal relating to non-granting of set off of brought forward depreciation against the income of the year under consideration. 3.2 The Appellant submits that considering the facts and circumstances of its case and the law prevailing on the subject it is entitled to a set off of brought forward unabsorbed depreciation against the income of the year under consideration. 3.3 The Appellant submits that the Assessing Officer be directed to grant set off of brought forward unabsorbed depreciation and re-compute total income for the year under consideration. Grounds for A.Y. 2012-13 1.0 Re.: Disallowance of amortization of the premium paid for the leasehold land of Rs. 20,14,928: Page | 4 ITA No. 2955 & 2966/Mum/2023 Owens-Corning (India) Pvt. Ltd; A.Y. 2011-12 1.1 The Commissioner of Income-tax (Appeals) has erred in confirming the disallowance of Rs. 20,14,928/- being the amortized amount of the premium paid for acquiring lease rights over a plot of land. 1.2 The Appellant submits that considering the facts and circumstances of its case and the law prevailing on the subject, the said amount amortized is deductible while computing its total income and the action of the Assessing Officer/Commissioner of Income-tax (Appeal) in this respect is erroneous, misconceived and not in accordance with the law. 1.3 The Appellant submits that the Assessing Officer be directed to delete the disallowance so made by him and to re-compute its total income accordingly. 2.0 Re.: Disallowance of depreciation on additions to the fixed assets made during the Assessment Year 2006-2007 of Rs. 11,77,621: 2.1 The Commissioner of Income-tax (Appeals) has erred in confirming the disallowance of depreciation of Rs. 11,77,621/- out of the total depreciation of Rs. 24,42,282/- claimed by the Appellant during year under consideration on addition to asset made during Assessment Year 2006-07. 2.2 The Appellant submits that considering the facts and circumstances of its case and the law prevailing on the subject, it is entitled to claim depreciation of Rs. 11,77,621/- and the action of the Assessing Officer/Commissioner of Income-tax (Appeal) in this Page | 5 ITA No. 2955 & 2966/Mum/2023 Owens-Corning (India) Pvt. Ltd; A.Y. 2011-12 respect is erroneous, misconceived and not in accordance with the law. 2.3 The Appellant submits that the Assessing Officer be directed to allow depreciation as claimed by it and to re-compute its total income accordingly. 3.0 Re.: General: 3.1 The Appellant craves leave to add, alter, amend, substitute and/or modify in any manner whatsoever all or any of the foregoing grounds of objections at or before the hearing of the appeal.” 03. At the time of hearing itself, the assessee submits that Ground no 1 for both years are covered against the assessee by the earlier year’s orders of the co-ordinate Bench and identical issue has been admitted by the Hon'ble High Court as per order dated 5th March 2013, for A.Y. 2004-05. Therefore, to avoid the repetitive appeals assessee has made an application under Section 158A (1) of the Income-tax Act, 1961 (the Act) by filing from no.8 for both these assessments. He further submits that when identical issue arose in the case of assessee for A.Y. 2014-16 and the appeals were blocked and the learned Assessing Officer was directed to apply the question of law as and when decided by the Hon'ble High Court. He referred to form no.8 for both these years. 04. With respect to the ground no.2, he submits that it is the question of opening written down value of the block of asset to be considered. The original issue arose in case of the assessee for A.Y. 2006-07, which has been restored Page | 6 ITA No. 2955 & 2966/Mum/2023 Owens-Corning (India) Pvt. Ltd; A.Y. 2011-12 back to the file of the learned Assessing Officer by the co-ordinate Bench and the learned Assessing Officer passed the order appeal against which is pending before the CIT (A). The opening written down value of the block of assets and consequent depreciation allowable to the assessee during this year would only be consequential. Therefore, ground no.2 may also be set aside to the file of the order of the learned Assessing Officer that as and when learned CIT (A)’s order or , higher forum decide the issue of allowability of deprecation and consequential benefit may be given to assessee, if available. 05. Ground no.3 is consequential, it was submitted that as unabsorbed depreciation of 1 year would become the current depreciation of the subsequent year. 06. The learned Departmental Representative supported the orders of the lower authorities. 07. We have carefully heard the rival contentions and perused the orders of the lower authorities. We have also considered the order of the Hon'ble High Court in assessee’s own case for A.Y. 2004-05 admitting the issue about allowability of amortized write off the entire amount paid to Maharashtra Industrial Development Corporation in consideration for users of its land for a period of 95 years. Honourable High court admitted this question of law for A.Y. 2004-05. Therefore, the assessee deserves blocking of the appeal. In view of the above accepting, the claim of the assessee directs the learned Assessing Officer to decide the issue as per provisions of Section 158A of the Page | 7 ITA No. 2955 & 2966/Mum/2023 Owens-Corning (India) Pvt. Ltd; A.Y. 2011-12 Act. Ground no.1 of the appeal for both the years is allowed accordingly. 08. Coming to ground no.2 of the appeal for both the years, we find that A.Y. 2006-07, is pending before the learned CIT (A) in appeal filed before him on 21 May 2021, for A.Y. 2006-07. The opening Written-down value would be decided on the basis of the decision of the learned CIT (A) as the outcome of the appeal is awaited, therefore, ground no.2 and 3 of the appeal is also restored back to the file of the learned Assessing Officer to give a consequent benefit if available, based on the order of the learned CIT (A). Accordingly, ground no.2 and 3 of the appeal is also allowed with above directions. 09. In the result, both the appeals of the assessee for both the AY s are allowed for statistical purposes as indicated above. Order pronounced in the open court on 21.12. 2023. Sd/- Sd/- (KAVITHA RAJAGOPAL) (PRASHANT MAHARISHI) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) Mumbai, Dated: 21.12. 2023 Sudip Sarkar, Sr.PS Copy of the Order forwarded to: 1. The Appellant 2. The Respondent 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. BY ORDER, True Copy// Page | 8 ITA No. 2955 & 2966/Mum/2023 Owens-Corning (India) Pvt. Ltd; A.Y. 2011-12 Sr. Private Secretary/ Asst. Registrar Income Tax Appellate Tribunal, Mumbai
