ASHCO INDUSTRIES LTD, MUMBAI V. DCIT 8(1), MUMBAI

ITA 3087/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 7255 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-03-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Assessment Year: 2004-2005
• Appeal Filed On: 11-05-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Depreciation; Set aside
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH G, MUMBAI. BEFORE SHRI J. SUDHAKAR REDDY, A.M. AND SHRI R.S. PADVEKAR, J.M. I.T.A. NO. 3 087/MUM/2009 ASSESSMENT Y EAR : 2004-05. ASHCO INDUSTRIES LTD., DY. COMMISSIONER OF LAB HOUSE, PLOT NO. F-13, VS. INCOME TAX-8(1), LAB HOUSE, OPPOSITE SEEPZ, M UMBAI. MIDC, ANDHERI (E), MUMBAI 400 093. PAN : AABCA2463K. APPELLANT RESPONDENT. APPELLANT BY : NONE. RESPONDENT BY : SHRI MOHD. USMAN. O R D E R PER J. SUDHAKAR REDDY, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AG AINST THE ORDER OF THE CIT(APPEALS)-VIII, MUMBAI DATED 04-02- 2009. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE ISSUAL OF NOTICE BY RPAD. THERE IS NO REQUEST FOR ADJOURNMENT EITHER. UNDER THESE CIRCUMSTANCES, WE DISPOSE OF THE CASE EXPARTE QUA T HE ASSESSEE AFTER HEARING THE LEARNED DR. 3. HEARD THE LEARNED DR. THERE ARE ONLY TWO ISSUES THAT ARISING IN THIS APPEAL. THE FIRST IS DISALLOWANCE U/S 43B O F PF AND ESI PAYMENTS AND COMPUTATION OF CORRECT FIGURE OF DEPRECIATION. 4. COMING TO THE FIRST GROUND, IN VIEW OF THE JUDG MENT OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. ALOM E XTRUSIONS LTD. 2 REPORTED IN 319 ITR 306 (SC) READ WITH THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. AIMIA LTD. AND OT HERS IN ITA NO. 1063 OF 2006 ORDER PRONOUNCED ON 23 RD DEC., 2009 WHEREIN IT IS HELD THAT EVEN IN THE CASE OF EMPLOYEES CONTRIBUTION TO PF, THE SAME SHOULD BE ALLOWED, IF IT IS PAID BEFORE THE TIME ALLOWED FOR FILING THE RETURN OF INCOME, WE ALLOW THIS GROUND OF THE ASSESSEE. THE CIT(APPEALS) HAD FOLLOWED THE OVERRULED JUDGMENT OF THE HONBLE MADR AS HIGH COURT IN THE CASE OF CIT VS. SOUTH INDIA CORPORATION LTD. 24 2 ITR 114 (KER.) 5. IN THE RESULT, GROUND NO. 1 IS ALLOWED. 6. COMING TO GROUND NO. 2, THE CIT(APPEALS) AT PAR A 3.3 AND 3.4 HELD AS FOLLOWS : 3.3 BEFORE ME, THE APPELLANT HAS SUBMITTED AS UND ER WDV OF THE BLOCK OF ASSET HAVE UNDERGONE A CHANG E IN THE PREVIOUS YEAR RELEVANT TO ASSESSMENT YEAR 2001- 02 ON ACCOUNT OF RECTIFICATION CARRIED OUT BY YOUR OFFICE IN PURSUANT TO ASSESSEES APPLICATION DATED 18 TH APRIL 2005 FOR THE SAID YEAR. ACCORDINGLY, OPENING WDV FOR ASSESSMENT YEAR 2004-05 HAS CHANGED. ACCORDINGLY, DEPRECIATION ALLO WABLE AS PER INCOME TAX ACT, 1961 IS REQUIRED TO BE REVIS ED IN ASSESSMENT YEAR 2004-05. REVISED WORKING OF DEPRECI ATION ALLOWABLE FOR ASSESSMENT YEAR 2004-05 IS ENCLOSED HEREWITH. 3.4 I HAVE CONSIDERED THE SUBMISSIONS OF THE APPELL ANT AND THE ORDER OF THE AO. IT IS NOTICED THAT THE AO HAS CORR ECTLY CALCULATED THE RATE OF DEPRECIATION ALLOWABLE AS PER THE PROVI SIONS OF THE ACT. KEEPING IN VIEW THESE FACTS AND CIRCUMSTANCES, THE ORDER OF THE AO IS CONFIRMED AND THE GROUND OF APPEAL IS DISMISSED. 7. AFTER GOING THROUGH THESE PARAGRAPHS, WE ARE OF THE CONSIDERED OPINION THAT THE ISSUE SHOULD BE SET ASI DE TO THE FILE OF THE AO 3 FOR FRESH ADJUDICATION. THE AO SHALL CONSIDER THE C ALCULATION GIVEN BY THE ASSESSEE, CONSEQUENT TO THE CHANGE IN WDV IN THE PR EVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR 2001-02.ALL OTHER ISSUES HAV E ATTAINED FINALITY AND THE AO NEED NOT GO INTO THE SAME. THUS WE SET ASIDE GROUND NO. 2 TO THE AO. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED IN PART. ORDER PRONOUNCED ON THIS 24 TH DAY OF MARCH, 2010. SD/- SD/- (R.S.PADVEKAR) (J. SUDHAKAR REDDY) JUDICIAL MEMBER. ACCOUNTANT MEMBER. MUMBAI, DATED : 24 TH MARCH, 2010. WAKODE COPY FORWARDED TO : 1. APPELLANT. 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR, G-BENCH. (TRUE COPY) BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI BENCHES, MUMBAI.