ACIT 11(2), MUMBAI V. S. GANESH, MUMBAI

ITA 403/MUM/2010

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 3791 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-11-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: I
• Next Hearing Date: 03-11-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 15-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K SINGH SR
• Keywords: Depreciation; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES I : MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI P.M. JAGTAP, ACCOUNTANT MEMBER ITA. NO.403/MUM/2010 ASSESSMENT YEAR 2006-2007 ACIT 11 (2) MUMBAI 400 020 VS. SHRI S. GANESH MUMBAI 20 PAN AAGPS-5047-M (APPELLANT) (RESPONDENT) FOR APPELLANT : SHRI S.K. SINGH (SR. AR) FOR RESPONDENT : SHRI VIMAL PUNMIYA ORDER PER D. MANMOHAN, V.P. 1. THE ONLY GROUND URGED IN THE APPEAL FILED BY TH E REVENUE READS AS UNDER : ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT (A)-3, MUMBAI HAS ERRED IN DEL ETING THE DISALLOWANCE OF DEPRECIATION AMOUNTING TO RS.16 .21 LAKHS. 2. FACTS OF THE CASE REVOLVE IN A NARROW COMPASS. ASSESSEE, IS AN INDIVIDUAL BY STATUS AND ADVOCATE BY PROFESSI ON. IN RESPECT OF THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION ASSESSEE DECLARED INCOME UNDER THE HEAD INCOME FRO M PROFESSION AS WELL AS INCOME FROM OTHER SOURCES. THE CASE HAVING BEEN TAKEN-UP FOR SCRUTINY, THE ASSESSING OFFICER NOTICED THAT THE AS SESSEE CLAIMED DEPRECIATION ON OFFICE PREMISES WHICH IS NOT ALLOWA BLE AND IN THIS REGARD OBSERVED AS UNDER : 2 DEPRECIATION ON OFFICE PREMISES : IT IS SEEN FROM THE RECORDS THAT THE ASSESSING OFFI CER IN THE ASSESSMENT ORDER FOR THE A.Y. 2004-05 HAS HELD THAT THE INVESTMENT MADE IN FOR PURCHASE OF OFFICE PREMI SES WAS NOT EXPLAINED BY THE ASSESSEE AND ACCORDINGLY, MADE AN ADDITION OF RS.200.92 LAKHS. THOUGH THE CIT (A) HAS DELETED THE SAID ADDITION, THE DEPARTMENT IS IN APPEAL BEFORE ITAT WHICH IS STILL PENDING. DURING T HIS YEAR, ASSESSEE HAS CLAIMED DEPRECIATION OF RS.16,27,429/- ON THE SAID OFFICE PREMISES. ACCORDI NGLY, THE DEPRECIATION CLAIMED BY THE ASSESSEE ON OFFICE PREMISES AMOUNTING TO RS.16,27,429/- IS DISALLOWED. PENALTY PROCEEDINGS U/S. 271 (1) (C) OF THE I.T. AC T ARE INITIATED FOR FURNISHING INACCURATE PARTICULARS OF INCOME. 3. ON AN APPEAL FILED BY THE ASSESSEE, LEARNED CIT (A) SET ASIDE THE DISALLOWANCE BY OBSERVING AS UNDER : 6. GROUND NO. 10 PERTAINS TO THE DISALLOWANCE OF DEPRECIATION ON OFFICE PREMISES AMOUNTING TO RS.16. 21 LAKHS FOLLOWING THE ASSESSMENT ORDER FOR A.Y. 2004- 05 IN THE APPELLANTS CASE. A.O. HAS MENTIONED THAT THE C IT (A) HAD DELETED THE SAID ADDITION OF INVESTMENT IN PURC HASE OF OFFICE PREMISES FOR A.Y. 2004-05 BUT THE DEPARTM ENT WAS IN APPEAL BEFORE ITAT WHICH WAS PENDING. THEREF ORE, THE APPELLANTS CLAIM FOR DEPRECIATION ON THE SAID OFFICE PREMISES WAS DISALLOWED. 6.1. THE FIRST APPELLATE AUTHORITY I.E., CIT (A)S ORDER FOR A.Y. 04-05 HAS BEEN SEEN. THE ISSUE IS DISCUSSED IN PARA 8 AND SUB PARAS OF THE SAID ORDER AND ADDITION MADE ON ACCOUNT OF INVESTMENT IN OFFICE PREMISES AND DISALLOWANCE OF DEPRECIATION DELETED. FOLLOWING THE SAID ORDER DEPRECIATION IS HELD ALLOWABLE TO THE APPELLA NT. THE DISALLOWANCE MADE ON THIS ACCOUNT IS DELETED. 3 4. AGGRIEVED, REVENUE IS IN APPEAL BEFORE US. AT T HE TIME OF HEARING, LEARNED COUNSEL, APPEARING ON BEHALF OF TH E ASSESSEE FURNISHED BEFORE US A COPY OF THE ORDER OF THE ITAT , E, BENCH, MUMBAI IN ASSESSEES OWN CASE FOR THE ASSESSMENT YE AR 2004-2005. IN SUPPORT OF HIS CONTENTION THAT THIS ISSUE WAS DE CIDED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE IN EARLIER YEA R. LEARNED DR ADMITTED THAT THE ISSUE STANDS COVERED BY THE AFORE CITED DECISION THOUGH IT WAS CONTENDED THAT THE ORDER PASSED BY TH E ASSESSING OFFICER DESERVES TO BE UPHELD. 5. HAVING REGARD TO THE CIRCUMSTANCES OF THE CASE, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF THE LEARNED CIT (A). BY RESPECTFULLY FOLLOWING THE DECISION OF THE ITAT, E BENCH, MUMBAI (SUPRA), WE UPHOLD THE ORDER OF THE LEARNED CIT (A) AND DISMISS THE APPEAL FILED BY THE REVENUE AS PRONOUNCED IN THE OP EN COURT. SD/- SD/- (P.M. JAGTAP) (D.MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATE 19 TH NOVEMBER, 2010 VBP/- COPY TO 1. THE ACIT 11 (2), ROOM NO. 479, 4 TH FLOOR, AAYAKAR BHAVAN, M.K.ROAD, MUMBAI 020. 2. SHRI S. GANESH, 10, 2 ND FLOOR, FAIRFIELD, J.B. MALANI ROAD, CHURCHGATE, MUMBAI 20. PAN-AAGPS5047M 3. CIT (A)-3, MUMBAI. 4. CIT-11, MUMBAI. 5. DR I BENCH 6. GUARD FILE. (TRUE COPY) BY ORDER ASST. REGISTRAR, ITAT, MUMBAI BENCHES MUMBAI