Asstt Commissioner of Income Tax-6, Kanpur V. M/s.Shri Puran Multimedia Ltd., Kanpur

ITA 303/LKW/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78565 (ITAT-LUCKNOW)
• Duration Of Justice: 2 year(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-06-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 16-05-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 28-05-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ALOK MITRA
• Assessee Lawyers: P K KAPOOR
• Keywords: Depreciation; Opportunity of being heard

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.303/LKW/2012 ASSESSMENT YEAR:2007 - 08 A.C.I.T. - 6, KANPUR. VS. M/S SHRI PURAN MULTIMEDIA LTD., 2, SARVODAYA NAGAR, JAGRAN BUILDING, KANPUR. PAN:AABCS9219B (APPELLANT) (RESPONDENT) APPELLANT BY SHRI ALOK MITRA, D.R. RESPONDENT BY SHRI P. K. KAPOOR, C.A. DATE OF HEARING 16/05/2014 DATE OF PRONOUNCEMENT 1 3 /06/2014 O R D E R PER A. K. GARODIA, A.M. THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT (A) - I, KANPUR DATED 27/02/2012 FOR ASSESSMENT YEAR 2007 - 2008. 2. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: 1. THAT THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.57,87,050/ - MADE IGNORING THE FACTS THAT ( I ) DURING THE COURSE OF ASSESSMENT PROCEEDINGS DESPITE SEVERAL OPPORTUNITIES AND REPEATED REQUESTS, THE ASSESSEE NEVER PROVIDED BEFORE AO THE REQUISITE DETAILS I .E. THE COPY OF MOU DRAWN BETWEEN THE ASSESSEE AND OTHER COMPANIES NOR HE PROVIDED THE CERTIFICATES/EVIDENCES REGARDING INVESTMENT MADE BY OTHER BROADCASTING COMPANIES WHO ARE JOINT OWNER OF THE CAPITAL COST OF TRANSMISSION TOWERS, ( II ) ASSESSEE HAS CLAIMED IN HIS SUBMISSION BEFORE CIT(A) THAT HE HAS SUBMITTED THE A/C PAYEE CHEQUES TO BEML AGAINST THE BILLS RAISED BY BECL BEFORE AO ALONG WITH HIS REPLY DATED 16.12.2010, BUT THE SAME WAS NEVER SUBMITTED BEFORE AO DURING THE ASSESSMENT PROCEEDINGS. THE ORDER OF CI T(A) ALSO 2 NOT CONFIRMS THAT THE SAME WAS PRODUCED DURING APPELLATE PROCEEDINGS. 2. IN DECIDING THE APPEAL IN THIS CASE THE LD. CIT(A) DID NOT SEEK THE REMAND REPORT FROM AO ON THIS ISSUE. 3. THAT THE ORDER OF THE LD. CIT (A) - II, KANPUR BEING ERRONEOUS IN LAW AND ON FACTS DESERVES TO BE VACATED AND THE ORDER OF THE AO BE RESTORED. 4. THE APPELLANT CRAVES LEAVE TO MODIFY ANY OF THE GROUND S OF THE APPEAL GIVEN ABOVE AND OR ADD ANY FRESH GROUND AS AND WHEN IT IS CONSIDERED TO DO SO . 3. LEARNED D.R. OF THE REVENUE SUPPORTED THE ORDER OF CIT(A). HE ALSO SUBMITTED THAT THE ORDER OF CIT(A) IS VERY CRYPTIC AND THEREFORE, THE MATTER SHOULD GO BACK TO HIS FILE FOR FRESH DECISION BY WAY OF REASONED ORDER. 4. AS AGAINST THIS, THE LEARNED A.R. OF THE ASSESSEE SUPPORTED THE ORDER OF CIT(A). HE FURTHER SUBMITTED THAT THE SCHEDULE OF FIXED ASSETS IS AVAILABLE ON PAGE NO. 12 OF THE PAPER BOOK AND THE DETAILS/DEBIT NOTE RAISED BY BROADCAST ENGINEERING CONSULTANTS INDIA LIMITED FOR SHARING OF LEASEH OLD EQUIPMENT IS AVAILABLE FROM PAGE 32 TO 85 OF THE PAPER BOOK. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THIS IS THE OBJECTION OF THE ASSES SING OFFICER THAT THE ASSETS SHARED BY THE BROADCASTERS ARE ALSO INCLUDED IN ANNEXURE - C D - 2 AND THE ASSESSEE HAS CLAIMED DEPRECIATION ON THESE AMOUNTS. HE HAS GIVEN A FINDING THAT SINCE THESE ASSETS ARE NOT OWN ED BY THE ASSESSEE , DEPRECIATION IS NOT ALLOWABLE. AGAINST THESE OBJECTIONS OF THE ASSESSING OFFICER, THE DECISION OF CIT(A) IS AS PER PARA 4.2 OF HIS ORDER, WHICH IS REPRODUCED BELOW: SINCE THESE ARE THE PROPORTIONATE COSTS INCURRED BY THE APPELLANT ON ACCOUNT OF SETTI NG UP OF TRANSMISSION TOWERS, THE APPELLANT WAS ENTITLED TO CLAIM DEPRECIATION ON SUCH CAPITALIZED AMOUNTS. 3 THE ASSESSING OFFICER IS DIRECTED TO ALLOW THE DEPRECIATION AS CLAIMED Y THE APPELLANT ON SUCH AMOUNTS. 5.1 FROM THE ABOVE PARA OF CIT(A), IT DO ES NOT COME OUT AS TO WHETHER THE ASSETS IN QUESTION, ON WHICH THE ASSESSEE HAS CLAIMED DEPRECIATION, IS OWNED BY THE ASSESSEE OR NOT, WHICH IS PRE REQUIREMENT FOR CLAIMING DEPRECIATION. HENCE, WE SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER BACK TO HIS FILE FOR FRESH DECISION. HE SHOULD GIVE A CLEAR FINDING AS TO WHETHER THE ASSETS IN QUESTION ARE OWNED BY THE ASSESSEE OR NOT AND ACCORDINGLY, HE SHOULD DECIDE AS TO WHETHER THE ASSESSEE IS ELIGIBLE FOR DEPRECIATION ON THOSE ASSETS OR NOT. NEEDLES S TO SAY, CIT(A) SHOULD PROVIDE REASONABLE OPPORTUNITY OF BEING HEARD TO BOTH THE PARTIES. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 3 /06/2014. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR