The DCIT, (OSD),Range-1, Ahmedabad V. Chiripal Industries Ltd., Ahmedabad

ITA 400/AHD/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 76835 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 3 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-06-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2006-2007
• Appeal Filed On: 14-02-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K C MATHEWS
• Assessee Lawyers: P M MEHTAAR
• Keywords: Deemed owner of house property; Depreciation; Opportunity of being heard; Additional evidence; Revised return

Judgement Text

, , , , , , , , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD .., ! '# '# '# '# $ %&, ! BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER #./ I.T.A. NO.400/AHD/2011 ( ( ')( ( ')( ( ')( ( ')( / / / / ASSESSMENT YEAR : 2006-07) DCIT (OSD) RANGE-1 AHMEDABAD / VS. CHIRIPAL INDUSTRIES LTD. SURVEY NO.199/200/1 & 200/2 SAIJUR GOPALPUR PIRANA ROAD, PIPLAJ AHMEDABAD !* #./+, #./ PAN/GIR NO. : AAACC 8513 B ( *- / // / APPELLANT ) .. ( ./*- / RESPONDENT ) AND CO NO.59/AHD/2011 A.Y. 2006-07 (IN ITA NO.400/AHD/2011-AY 2006-07) CHIRIPAL INDUSTRIES LTD. VS. DCIT (OSD) AHMEDABAD RANGE-1, A HMEDABAD (CROSS OBJECTOR) .. (RESPONDEN T) REVENUE BY : SHRI K.C. MATHEWS, SR.DR ASSESSEE BY : SHRI P.M. MEHTA, AR $'0 1 & / / / / DATE OF HEARING : 02/06/2014 23) 1 & / DATE OF PRONOUNCEMENT : 13/06/2014 4 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THE REVENUE AND THE ASSESSEE BOTH HAVE CHALLENG ED THE ORDER OF THE COMMISSIONER-OF INCOME TAX (APPEALS)-VI, AHMEDA BAD (CIT(A) IN SHORT) DATED 14/02/2010 BY WAY OF APPEAL (BY REV ENUE) AND CROSS- OBJECTION (BY ASSESSEE). BOTH THE APPEAL AND CROSS OBJECTION ARE TAKEN ITA NOS.400/AHD/2011 (BY REVENUE)& CO NO.59/AHD/2011 (BY ASSESSEE) DCIT (OSD) VS. CHIRIPAL INDUSTRIES LTD. ASST.YEAR 2006-07 - 2 - UP TOGETHER AND ARE BEING DISPOSED OF BY A CONSOLID ATED ORDER FOR THE SAKE OF CONVENIENCE. 2. FIRST, WE TAKE UP THE APPEAL FILED BY THE REVENU E, I.E. ITA NO.400/AHD/2011 FOR AY 2006-07. THE REVENUE HAS RA ISED THE FOLLOWING GROUNDS OF APPEAL:- 1. THE LD.CIT(A) ERRED IN LAW AND ON FACTS IN DIREC TING TO CONSIDER THE CLAIM OF DEPRECIATION IN REVISED RETURN AMOUNTI NG TO RS.13,48,51,978/- AND ALLOW THE SAME IS PER LAW, IN STEAD OF RS.10,66,84,908/- CLAIMED IN ORIGINAL RETURN AS THE ASSESSEE DID NOT BRING THE FACT OF REVISED RETURN TO THE NOTICE OF THE A.O. AND THUS THE LD.CIT(A) HAS ADMITTED ADDITIONAL EVIDENCE WITHOUT GIVING REASONABLE OPPORTUNITY TO THE AO UNDER RULE 46A(3) OF THE I.T.RULES. 2. THE LD.CIT(A) ERRED IN LAW AND ON FACTS IN DELE TING THE ADDITION ON ACCOUNT OF INCOME FROM SALE OF FURNITURE OF RS.1 9,77,276/- TREATING AS SHORT TERM CAPITAL GAIN. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESS ING OFFICER TO THE EXTENT MENTIONED ABOVE, SINCE THE ASSESSEE HAS FAIL ED TO DISCLOSE HIS TRUE INCOME. THE APPELLANT PRAYS THAT THE ORDER OF CIT(A)ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE AO BE RESTORED. THE APPE LLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND WHEN MAY BE NECESSARY. 2.1. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME ON 27/12/2006 DECLARING TOTAL INCOME OF R S.2,92,30,230/-. THE CASE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S.143(3) OF THE INCOME TAX ACT,1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED VIDE ORDER DATED 30/12/2008, THEREBY THE ASSESSING OFFICER (AO IN SHORT) COMPUTED THE TOTAL INCOME AT RS.3,14,59,5 05/- AS AGAINST INCOME ITA NOS.400/AHD/2011 (BY REVENUE)& CO NO.59/AHD/2011 (BY ASSESSEE) DCIT (OSD) VS. CHIRIPAL INDUSTRIES LTD. ASST.YEAR 2006-07 - 3 - DECLARED AT RS.2,92,30,230/- BY MAKING ADDITION ON ACCOUNT HOUSE PROPERTY UNDER THE HEAD OF BUSINESS & PROFESSION AND LONG-TERM CAPITAL GAIN & SHORT-TERM CAPITAL GAIN. AGAINST THIS, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD.CIT(A), WHO AFTER CONSIDERING THE SUBMISSIONS, PARTLY ALLOWED THE APPEAL. WHILE DISPOSING OF THE APPEAL, THE LD.CIT(A) DIRECTED THE AO TO CONSIDER THE CLAIM OF DEPRECIATI ON AMOUNTING TO RS.13,48,51,978/- AS CLAIMED IN THE REVISED RETURN. THE LD.CIT(A) ALSO DELETED THE ADDITION OF RS.19,77,276/- MADE ON ACCO UNT OF SHORT-TERM CAPITAL GAIN, HOWEVER, LD.CIT(A) CONFIRMED THE ADDI TION AMOUNTING TO RS.2,52,000/-. NOW, BOTH THE PARTIES ARE IN APPE AL AND CROSS OBJECTION BEFORE US. 3. FIRST GROUND OF REVENUES APPEAL IS AGAINST THE DIRECTION TO CONSIDER THE CLAIM AMOUNTING TO RS.13,48,51,978/- I N RESPECT OF DEPRECIATION. THE LD.SR.DR SHRI K.C.MATHEWS VEHEME NTLY ARGUED THAT THE LD.CIT(A) WAS NOT JUSTIFIED IN DIRECTING THE AO TO CONSIDER THE CLAIM OF DEPRECIATION. 3.1. ON THE CONTRARY, LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT IF THE DEPRECIATION IS AVAILABLE AND THE ASSESSEE HAS CLAI MED IT IN THE REVISED RETURN THAT CANNOT BE DISALLOWED. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THE AO HAS NOT DISCUSSED ABOUT WHETHER THE ASSESSEE HAS FILED ANY REVISED RETURN, HOWEVER, THE LD.CIT(A) HA S GIVEN A FINDING THAT ITA NOS.400/AHD/2011 (BY REVENUE)& CO NO.59/AHD/2011 (BY ASSESSEE) DCIT (OSD) VS. CHIRIPAL INDUSTRIES LTD. ASST.YEAR 2006-07 - 4 - THE ASSESSEE HAS FILED REVISED RETURN IN TIME AND T HE AO SHOULD HAVE CONSIDERED THE SAME. IT WOULD BE APPROPRIATE TO RE PRODUCE THE OBSERVATION OF THE LD.CIT(A) AS RECORDED IN PARA 3. 2 OF HIS ORDER WHICH ARE IN THE FOLLOWING TERMS:- 3.2. I HAVE CONSIDERED THE FACTS OF THE CASE, A SSESSMENT ORDER AND APPELLANTS SUBMISSION. SINCE APPELLANT FILED REVISED RETURN IN TIME, ASSESSING OFFICER SHOULD HAVE CONSIDERED THE SAME. ASSESSING OFFICER IS DIRECTED TO CONSIDER CLAIM OF DEPRECIATION IN REVISED RETURN AND ALLOW THE SAME AS PER LAW. 4.1. DURING THE COURSE OF HEARING, LD.COUNSEL FOR T HE ASSESSEE SUBMITTED THAT HE CAN PLACE THE REVISED RETURN ON RECORD. TH EREFORE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD.CIT(A) AS HE H AD DIRECTED THE AO TO CONSIDER THE CLAIM OF THE ASSESSEE FOR DEPRECIATION AS PER LAW. HOWEVER, THE AO WOULD VERIFY THE CLAIM IN REVISED RETURN AS FILED BY THE ASSESSEE AND DECIDE THE ISSUE AS PER LAW. NEEDLESS TO SAY T HAT THE AO WOULD AFFORD REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WITH THIS DIRECTION, THIS GROUND OF REVENUES APPEAL IS ALLO WED FOR STATISTICAL PURPOSES. 5. SECOND GROUND OF REVENUES APPEAL IS AGAINST DEL ETION OF ADDITION OF RS.19,77,276/- TREATING IT AS SHORT-TERM CAPITAL GAIN. THE LD.SR.DR SUPPORTED THE ORDER OF THE AO. ON THE CONTRARY, L D.COUNSEL FOR THE ASSESSEE SUPPORTED THE ORDER OF THE LD.CIT(A). 6. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. ITA NOS.400/AHD/2011 (BY REVENUE)& CO NO.59/AHD/2011 (BY ASSESSEE) DCIT (OSD) VS. CHIRIPAL INDUSTRIES LTD. ASST.YEAR 2006-07 - 5 - SINCE THE ASSESSEE HAS REVISED ITS RETURN ON WHICH THE AO HAS NOT GIVEN ANY FINDING, WE ARE OF THE CONSIDERED VIEW THAT THI S ISSUE SHOULD BE DECIDED BY THE AO AFRESH AFTER VERIFYING THE CLAIM OF THE ASSESSEE IN REVISED RETURN. THUS, THIS GROUND OF REVENUES APP EAL IS ALLOWED FOR STATISTICAL PURPOSES. 7. REMAINING GROUNDS ARE GENERAL IN NATURE WHICH RE QUIRE NO INDEPENDENT ADJUDICATION. 8. IN THE RESULT, REVENUES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 9. NOW, WE TAKE UP THE CROSS OBJECTION NO.59/AHD/20 11 FOR AY 2006-07 (IN ITA NO.400/AHD/2011 - AY 2006-07) FILED BY THE ASSESSEE. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN IT S CROSS-OBJECTION: I. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) ERRED IN NOT DELETING THE ADDITION MADE BY THE ASSE SSING OFFICER FOR INCOME FROM HOUSE PROPERTY IN A SUM OF RS.2.52 LACS BY HOLDING THAT THREE HOUSE PROPERTIES WERE TREATED A S DEEMED LET OUT. 2. THE RESPONDENT CRAVES LEAVE TO ADD, ALTER, AMEND AN D/OR WITHDRAW ANY GROUND OR GROUNDS OF CROSS OBJECTIONS EITHER BEFORE OR DURING THE COURSE F HEARING OF THE CROSS OBJECTION. 10. THE LD.COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS WERE MADE IN THE STATEMENT OF FACTS-CUM-SYNOPSIS. ON TH E CONTRARY, LD.SR.DR SUPPORTED THE ORDER OF THE AO. HOWEVER, HE SUBMIT TED THAT THE ASSESSMENT ORDER IS PASSED ON THE ORIGINAL RETURN A ND NOT ON THE BASIS OF REVISED RETURN. ITA NOS.400/AHD/2011 (BY REVENUE)& CO NO.59/AHD/2011 (BY ASSESSEE) DCIT (OSD) VS. CHIRIPAL INDUSTRIES LTD. ASST.YEAR 2006-07 - 6 - 11. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED TH E MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THE ASSESSMENT IS BASED ON THE BASIS O F ORIGINAL RETURN FILED BY THE ASSESSEE, BUT THERE IS NO WHISPER ABOUT THE RETURN BEING REVISED BY THE ASSESSEE. DURING THE COURSE OF HEARING, LD.COU NSEL FOR THE ASSESSEE CANDIDLY CONCEDED THAT THE ISSUE MAY BE RESTORED BA CK TO THE FILE OF THE AO TO CONSIDER IT AFRESH. THEREFORE, THE ISSUE IS RESTORED BACK TO THE FILE OF AO TO DECIDE IT AFRESH AFTER VERIFYING THE CLAIM OF THE ASSESSEE IN REVISED RETURN OF INCOME AND THE EVIDENCES FILED IN SUPPORT THEREOF. THUS, THIS GROUND OF THE ASSESSEES CROSS-OBJECTION IS ALLOWED FOR STATISTICAL PURPOSES. 12. IN THE COMBINED RESULT, THE APPEAL OF THE REVEN UE AND THE CROSS-OBJECTION FILED BY THE ASSESSEE BOTH ARE ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN COURT ON THE DATE MENTIONED HER EINABOVE AT CAPTION PAGE SD/- SD/- ( .. ) ($ %&) ! ! ( N.S. SAINI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 13 / 06 /2014 7.., '.../ T.C. NAIR, SR. PS ITA NOS.400/AHD/2011 (BY REVENUE)& CO NO.59/AHD/2011 (BY ASSESSEE) DCIT (OSD) VS. CHIRIPAL INDUSTRIES LTD. ASST.YEAR 2006-07 - 7 - 4 1 .&8 98)& 4 1 .&8 98)& 4 1 .&8 98)& 4 1 .&8 98)&/ COPY OF THE ORDER FORWARDED TO : 1. *- / THE APPELLANT 2. ./*- / THE RESPONDENT. 3. ## & $: / CONCERNED CIT 4. $:() / THE CIT(A)-VI, AHMEDABAD 5. 8'%; .& , , / DR, ITAT, AHMEDABAD 6. ;( <0 / GUARD FILE. 4$ 4$ 4$ 4$ / BY ORDER, /8& .& //TRUE COPY// = == =/ // / #+ #+ #+ #+ ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 03.06.14(DICTATION-PAD 10-PA GES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 03.06.14 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH FAIR ORDER PLACED BEFORE OTHER MEMBER 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.13.6.14 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 13.6.14 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER