SAINATH GRANITE & MARBLES P. LTD, NAVI MUMBAI V. ITO 10(3)(4), MUMBAI

ITA 3058/MUM/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 7754 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2001-2002
• Appeal Filed On: 19-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: KUSUM INGLE
• Keywords: Business income; Depreciation; Unabsorbed depreciation; Set aside
• Section: 143(3)

Judgement Text

I.T.A NO.3058/ MUM/2010 SAINATH GRANITE & MARBLES P.LTD . 1 IN THE INCOME TAX APPELLATE TRIBUNAL, J BENCH, MUMBAI. BEFORE SHRI D.K.AGARWAL, JUDICIAL MEMBER AND SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER I.T.A NO.3058/ MUM/2010 ASSESSMENT YEAR: 2001-02 SAINATH GRANITE & MARBLES P.LTD. .. APPELLANT D-25/8, MIDC TTC INDL. AREA, KUKHET, NAVI MUMBAI PA NO.AAFCS 3750 F VS INCOME TAX OFFICER 10(3)(4) ,. RESPONDEN T MUMBAI. APPEARANCES: A.K.GHOSH, FOR THE APPELLANT KUSUM INGLE, FOR THE RESPONDENT O R D E R PER PRAMOD KUMAR: 1. BY WAY OF THIS APPEAL, THE ASSESSEE HAS CALLED INTO Q UESTION CORRECTNESS OF CIT(A)S ORDER DATED 18 TH FEBRUARY, 2009, IN THE MATTER OF ASSESSMENT UNDER SECTI ON 143(3) OF THE INCOME TAX ACT, 1961, FOR THE ASSESSMENT YEAR 2001-02 ON THE FOLLOWING GROUND: ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE AND IN LAW, THE LD CIT(A) ERRED IN CONFIRMING THE AOS ACTION IN NOT ALLOWING THE SET OFF OF THE UNABSORBED DEPRECIATION OF THE EARLIER YE ARS AGAINST THE CURRENT YEARS INCOME. 2. BRIEFLY STATED THE MATERIAL FACTS ARE LIKE THIS. T HE ASESSEE COMPANY IS ENGAGED IN THE BUSINESS OF CUTTING, POLISHING OF MARBLE S AND GRANITES. THIS IS A SECOND ROUND OF PROCEEDINGS BEFORE THE ITAT. IN THE FIRST ROUND, THE ITAT SET ASIDE I.T.A NO.3058/ MUM/2010 SAINATH GRANITE & MARBLES P.LTD . 2 THE ISSUE TO THE FILE OF THE AO FOR VERIFICATION AND FRESH ADJUDICATION. THE ASSESSING OFFICER FOLLOWING THE DECISION OF THE CIT (A) FOR TH E ASSESSMENT YEAR 2003-04, WHEREIN, IT WAS HELD THAT THE ASSESSEE IS NOT HAVING AN Y BUSINESS INCOME DURING THE CURRENT YEAR, HE IS NOT ENTITLED TO ANY SET OFF OF B ROUGHT FORWARD UNABSORBED DEPRECATION, DISALLOWED THE ASSESSEES CLAIM FOR SET OFF O F BROUGHT FORWARD UNABSORBED DEPRECIATION FOR THE CURRENT YEAR, THE A SSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A) BUT WITHOUT ANY SUCCESS. AGG RIEVED, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 3. HAVING HEARD THE RIVAL CONTENTIONS AND HAVING PER USED THE MATERIAL ON RECORD, WE FIND THAT THE UNABSORBED DEPRECIATION OF ` .9,85,545 WAS CARRIED FORWARD FOR BEING SET OFF IN SUBSEQUENT YEARS FROM THE YEARS 199 3-94 TO 1996-97. IN ASSESSEES CASE, THE SAID ISSUE HAD COME UP FOR DECISION FOR THE ASSESSMENT YEAR 2003-04 BEFORE A CO-ORDINATE BENCH, WHEREIN, THE TR IBUNAL FOLLOWING THE DECISION OF THE KOLKATA ITAT IN THE CASE OF PODDAR PROJECTS LTD V ACIT, 275 ITR (AT) 1(CAL), DIRECTED THE ASSESSING OFFICER TO ACCEPT THE CLAIM OF T HE ASSESSEE TO SET OFF UNABSORBED DEPRECIATION CARRIED FORWARD FOR THE PERI OD FROM A.YS. 1993-94 TO 1996-96. THE ASSESSMENT YEAR INVOLVED IN THIS APPEAL IS 2001-02 AND IN THE IMPUGNED PROCEEDINGS, THE AUTHORITIES BELOW HAVE ONLY FOLLOWED THE DECISION FOR THE ASSESSMENT YEAR 2003-04, WHICH HAS SINCE BEEN REVERSED BY A CO-ORDINATE BENCH VIDE ORDER DATED 12 TH MARCH, 2010 IN ITA NO.6662/M/2008. IN VIEW OF THI S, RESPECTFULLY FOLLOWING THE DECISION OF CO-ORDINATE BE NCH IN ASSESSEES OWN CASE (SUPRA), WE DIRECT THE AO TO ALLOW SET OFF AS CLAIMED BY THE ASSESSEE. 4. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED . PRONOUNCED IN THE OPEN COURT ON 31 ST MARCH, 2011 SD/- (D.K.AGARWAL) JUDICIAL MEMBER SD/- (PRAMOD KUMAR) (ACCOUNTANT MEMBER) MUMBAI, DATED 31 ST MARCH, 2011 PARIDA I.T.A NO.3058/ MUM/2010 SAINATH GRANITE & MARBLES P.LTD . 3 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)22, MUMBAI 4. COMMISSIONER OF INCOME TAX, 10 , MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH J, MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI I.T.A NO.3058/ MUM/2010 SAINATH GRANITE & MARBLES P.LTD . 4