Vishavambhar Dayal Mahipal, Gujarat V. ITO, Hisar

ITA 3674/DEL/2012

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3543 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-04-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 18-04-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 13-07-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: UMESH CHAND DUBEY
• Keywords: Depreciation; Additional evidence

Judgement Text

1 ITA NOS. 3395/DEL/2011 &3674/DEL/2012 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: D NEW DELHI BEFORE SHRI R. S. SYAL, VICE PR ESIDENT AND MS SUCHITRA KAMBLE, JUDICIAL MEMBER I.T.A .NO.3395/DEL/2011 (ASSESSM ENT YEAR-2007-08) VISHAMBHAR DAYAL MAHIPAL C/O. RAM SANJAY & CO. CA 1 ST FLOOR, RAVEE ARCADE, 95-97 GREEN SQUARE MARKET, HISAR ABFPM8166M (APPELLANT) VS INCOME TAX OFFICER - 2 HALDWANI (RESPONDENT) I.T.A .NO.3674/DEL/2012 (ASSESSM ENT YEAR-2009-10) VISHAMBHAR DAYAL MAHIPAL C/O. PLOT NO. 88, WARD-3A ADIPUR GANDHIDHAM GUJARAT ABFPM8166M (APPELLANT) VS ITO WARD-4, AAYAKAR BHAWAN SECTOR-14 HISAR (RESPONDENT) APPELLANT BY SH. K. SAMPATH, ADV. RESPONDENT BY SH. UMESH CHAND DUBEY, SR. DR ORDER PER SUCHITRA KAMBLE, JM THESE TWO APPEALS ARE FILED BY THE ASSESSEE AGAINST THE ORDERS DATED 25/4/2011 & 24/4/2012 PASSED BY CIT(A), ROHTAK FOR ASSESSMENT YEAR 2007- 08 & 2009-10 RESPECTIVELY. DATE OF HEARING 19.04.2017 DATE OF PRONOUNCEMENT 20.04.2017 2 ITA NOS. 3395/DEL/2011 &3674/DEL/2012 2. THE GROUNDS OF APPEAL ARE AS FOLLOWS: ASSESSMENT YEAR 2007-08. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW THE AUTHORITIES BELOW ERRED- I. IN DISALLOWING THE CLAIM OF DEPRECIATION ON ROLL ING MILL OF RS.2,40,592/- II. IN DISALLOWING A SUM OF RS.12,25,,000/- ON ACCO UNT OF DEPOSITS RECEIVED FROM TWO PARTIES; BOTH THE ABOVE ACTIONS BEING ARBITRARY, MISCONCEIVE D, FALLACIOUS AND UNLAWFUL MUST BE QUASHED WITH DIRECTIONS FOR APPROP RIATE RELIEF. ASSESSMENT YEAR 2009-10 1. THE LEARNED INCOME TAX OFFICER WAS NOT RIGHT IN LAW ON THE FACTS OF THE CASE WHILE MAKING ADDITIONS OF 3614400/- ON ACC OUNT OF SHORT TERM CAPITAL GAIN. 2. THE ASSESSEE CRAVES LEAVE TO ADD, ALTER, MODIFY, WI THDRAW ANY GROUND OF APPEAL BEFORE APPEAL IS FINALLY HEARD & D ISPOSED OFF. 3. THE LD. AR SUBMITTED THAT FOR ASSESSMENT YEAR 20 07-08, THE DETAILS OF CASH CREDIT ARE AVAILABLE WITH THE ASSESSEE AS WELL AS THERE IS CERTAIN ADDITIONAL EVIDENCE WHICH THE ASSESSEE WILL BE FILING BEFORE T HE ASSESSING OFFICER AS RELATES TO DEPRECIATION. THE LD. AR SUBMITTED THAT THE ASS ESSEE HAS CLAIMED DEPRECIATION ON ROLLING MILL AT RS. 2,40,592/-. TH E LD. AR SUBMITTED THAT FOR BOTH THE ISSUES CONTESTED IN THE PRESENT APPEAL, TH E ASSESSEE IS READY TO PRODUCE ALL THE RELEVANT DOCUMENTS BEFORE THE ASSES SING OFFICER. THEREFORE, THE LD. AR REQUESTED TO REMAND THE MATTER A FRESH BEFOR E THE ASSESSING OFFICER. THE LD. AR FURTHER SUBMITTED THAT FOR ASSESSMENT YE AR 2009-10, THE ISSUE OF SHORT TERM CAPITAL GAIN HAS TO BE SEEN BY THE ASSES SING OFFICER IN LIGHT OF THE ADDITIONAL EVIDENCE WHICH HAS BEEN OBTAINED BY THE ASSESSEE AT THIS JUNCTURE. 4. THE LD. DR SUBMITTED THAT THE A.O AS WELL AS THE CIT(A) HAS CATEGORICALLY DISMISSED THE CLAIM OF DEPRECIATION AS THERE WAS NO MANUFACTURING ACTIVITY IN 3 ITA NOS. 3395/DEL/2011 &3674/DEL/2012 ASSESSMENT YEAR 2007-08. WHILE ASKING ABOUT THE DE TAILS OF MANUFACTURING ACTIVITIES, THE LD. AR AND LD. DR COULD NOT POINT O UT THE SPECIFIC ASSESSMENT YEAR IN WHICH MANUFACTURING ACTIVITY WAS STARTED. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE A SSESSMENT ORDER AS WELL AS CIT (A)S ORDER FOR BOTH THE ASSESSMENT YEA RS UNDER CONSIDERATION. THE ASSESSING OFFICER HAS NOT POINTED OUT IN HIS ASSESS MENT ORDER THAT AS TO HOW MANUFACTURING ACTIVITIES DURING THIS PARTICULAR YEA R WAS NOT CARRIED OUT BY THE ASSESSEE. IN-FACT ASSESSING OFFICER HAS NOT CONFRO NTED THE ASSESSEE ABOUT THE SAME. THE FACTS RELATED TO DEPRECIATION WERE NOT C LEARLY COMING FROM BOTH THE ORDERS OF THE ASSESSING OFFICER AS WELL AS CIT (A). FOR THE ISSUE RELATED TO ACCOUNT OF DEPOSITS RECEIVED FROM THE TWO PARTIES, THE ASSESSEE HAS RECEIVED CERTAIN DOCUMENTS AT THIS JUNCTURE. THEREFORE, IT IS APPROPRIATE TO REMAND BACK THIS MATTER BEFORE THE ASSESSING OFFICER TO VE RIFY THE CLAIM OF DEPRECIATION AS WELL AS THE DISALLOWANCE ON ACCOUNT OF DEPOSITS RECEIVED FROM TWO PARTIES. FOR THE ASSESSMENT YEAR 2008-09 THE SHORT TERM CAPI TAL GAIN WHICH WAS ADDED BY THE ASSESSING OFFICER WAS NOT CLEARLY SET OUT IN THE ASSESSMENT ORDER AS WELL AS IN THE ORDER OF THE CIT (A). WHETHER, THE ASSES SEE SOLD THE ENTIRE PLOT OF LAND WITH PLANT AND MACHINERY FOR RS. 45 LACS THOUGH THE SAID PLOT WAS PURCHASED BY THE ASSESSEES WIFE FOR CONSIDERATION OF RS.8.20 LACS VIDE REGISTRATION DATED 4/1/2006, IS NOT CLEAR FROM THE ASSESSMENT ORDER AS WELL AS FROM THE ORDER OF THE CIT(A). THUS, IT IS NECESSARY TO GIVE THE CLEA R FINDINGS AS TO HOW THE SHORT TERM CAPITAL GAIN OBTAINED BY THE ASSESSEE IS JUSTI FIED OR NOT BY THE LOWER AUTHORITY. THEREFORE, THE MATTER IS REMANDED BACK TO THE ASSESSING OFFICER FOR . NEEDLESS TO SAY, THE ASSESSEE BE GIVEN OPPORTUNITY OF HEARING BEFORE THE ASSESSING OFFICER FOR BOTH THE ASSESSMENT YEARS. 4 ITA NOS. 3395/DEL/2011 &3674/DEL/2012 6. IN RESULT, BOTH THE APPEALS ARE PARTLY ALLOWED F OR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH APRIL, 2017 . SD/- SD/- (R. S. SYAL) (SUCHITRA KAMBLE) VICE PRESIDENT JUDICIAL MEMBER DATED: 20/04/2017 R. NAHEED * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE 1. DRAFT DICTATED ON 19/04/2017 PS 2. DRAFT PLACED BEFORE AUTHOR 19/04/2017 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER .2017 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5 ITA NOS. 3395/DEL/2011 &3674/DEL/2012 5. APPROVED DRAFT COMES TO THE SR.PS/PS 20.04.2017 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 2 0 .04.2017 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.