LAVASA CORPORATION LTD, MUMBAI V. DCIT 11(2), MUMBAI

ITA 3610/MUM/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0549 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2007-2008
• Appeal Filed On: 25-05-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ABHIJIT PATANKAR
• Assessee Lawyers: SUSHIL LAKHANI
• Keywords: Depreciation; Right to appeal; Unabsorbed depreciation
• Section: 143(3); 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH G MUMBAI BEFORE SHRI D.T. GARASIA (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 3610/MUM/2016 ASSESSMENT YEAR: 2007 - 08 & ITA NO. 3611/MUM/2016 ASSESSMENT YEAR: 2008 - 09 & ITA NO. 3612/MUM/2016 ASSESSMENT YEAR: 2009 - 10 & ITA NO. 3613/MUM/2016 ASSESSMENT YEAR: 2010 - 11 M/S LAVASA CORPORATION LTD. HINCON HOUSE, L.B.S. MARG, VIKHROLI (W), MUMBAI - 400083 VS. DCIT / ACIT - 11(2) EARNEST HOUSE, NARIMAN POINT MUMBAI - 400021 PAN NO. AABCT4435E APPELLANT RESPONDENT ASSESSEE BY : MR. SUSHIL LAKHANI , AR REVENUE BY : MR. ABHIJIT PAT A NKAR , CIT - DR DATE OF HEARING : 25 /01/2018 DATE OF PRONOUNCEMENT : 2 9 /01/2018 ORDER PER N.K. PRADHAN, A.M. THE CAPTIONED APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) - 22, MUMBAI AND ARISE OUT OF THE ASSESSMENT COMPLETED U/S 143(3) OF THE INCOME TAX ACT 1961 (THE ACT). AS COMMON ISSUES ARE INVOLVED, WE ARE LAVASA CORPORATION ITA NOS. 3610, 3611, 3612, 3613/MUM/2016 2 PROCEEDING TO DISPOSE THEM OFF THROUGH A CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. THE ASSESSEE HAS FILED A PETITION SEEKING PERMISSION TO WITHDRAW THE APPEAL. THE SAID PETITION READS AS UNDER: 1. WE HAVE INCURRED SIGNIFICANT LOSSES IN THE ASSESSMENT YEARS UNDER APPEAL AS WELL AS IN THE SUBSEQUENT ASSESSMENT YEARS. THE ASSESSMENT YEAR - WISE BREAK - UP OF THE CARRIED FORWARD BUSINESS LOSSES AND UNABSORBED DEPRECIATION IS ENCLOSED IN ANNEXURE - 1. 2. THE DISPUTED ISSUES AND THE AMOUNTS OF ADDITIONS/DISALLOWANCE WHICH ARE INVOLVED IN THE ABOVE APPEALS ARE SUMMARIZED BELOW: SR. NO. ASSESSMENT YEAR ISSUE AMOUNT (IN RS.) 1. 2007 - 08 DISALLOWANCE AS PER PROVISO TO SECTION 36(1)(III) 5,39,69,891 2. 2008 - 09 DISALLOWANCE AS PER PROVISO TO SECTION 36(1)(III) 8,58,90,022 (I) DISALLOWANCE U/S 14A R.W. RULE 8D 148,470 3. 2009 - 10 DISALLOWANCE AS PER PROVISO TO SECTION 36(1)(III) 18,01,59,195 4. 2010 - 11 DISALLOWANCE AS PER PROVISO TO SECTION 36(1)(III) 21,38,77,400 3. WE BELIEVE THAT WE HAVE A STRONG CASE TO SUCCEED IN RELATION TO THE AFORESAID APPEALS. HOWEVER, IN VIEW OF THE CUMULATIVE CARRIED FORWARD BUSINESS LOSSES OF RS.1372 CRORES AND CUMULATIVE UNABSORBED DEPRECIATION OF RS.255 CRORES, AGGREGATI NG TO RS.1627 CRORES, WHICH ARE NOT LIKELY TO BE UTILIZED AGAINST PROFITS OF FUTURE YEARS, WE WHICH TO WITHDRAW THE APPEAL. LAVASA CORPORATION ITA NOS. 3610, 3611, 3612, 3613/MUM/2016 3 4. FURTHER, THE ABOVE APPEAL IS BEING WITHDRAWN PURELY ON ACCOUNT OF THE ABOVE REASONS AND THEREFORE, THE STAND TAKEN BY THE ASSESS ING OFFICER AND UPHELD BY THE COMMISSIONER OF INCOME TAX - APPEALS (CIT - A) FOR AY 2007 - 08 TO AY 2011 - 12 IN THE IMPUGNED ORDER DATED 18 TH FEBRUARY, 2016 IS NOT BE CONCLUDED AS BEING ACCEPTED BY THE ASSESSEE COMPANY. WE RESERVE OUR RIGHT TO CHALLENGE THE PRINC IPLE SOUGHT TO BE LAID DOWN BY THE CIT AND CIT(A) IN THE AFORESAID IMPUGNED ORDERS IN THE APPROPRIATE PROCEEDINGS, IF AND WHEN THE NEED ARISES. WE WILL BE EXTREMELY GRATEFUL IF THE SAME IS CLARIFIED IN THE ORDER PASSED BY THE HONBLE BENCH. 3. THE LD. COU NSEL OF THE ASSESSEE REITERATES THE SUBMISSION MADE IN THE PETITION AND ACCORDINGLY SOUGHT PERMISSION OF THE BENCH TO WITHDRAW THE APPEAL. THERE WAS NO OPPOSITION BY THE LD. DR TO THE ABOVE REQUEST OF THE ASSESSEE. SINCE THE ASSESSEE IS ONLY FOREGOING ITS RIGHT OF APPEAL FOR THE REASONS STATED IN THE PETITION, WE ALLOW THE APPEAL TO BE WITHDRAWN. 4. IN THE RESULT, THE APPEAL S OF THE ASSESSEE ARE DISMISSED IN LIMINE , AS WITHDRAWN. ORDER PRONOUNCED IN THE OPEN COURT ON 29 /01/2018. SD/ - SD/ - (D.T. GARASIA) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 29 /01/2018 RAHUL SHARMA, SR. P.S. LAVASA CORPORATION ITA NOS. 3610, 3611, 3612, 3613/MUM/2016 4 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI