ACIT, Central Circle-12(2), Kolkata, Kolkata V. M/s Vantage Advertising pvt.Ltd., Kolkata

ITA 42/KOL/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4705 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-02-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 09-01-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SHANKAR HALDER
• Assessee Lawyers: J P KHAITAN; Ravi Mittal
• Keywords: Depreciation; Rule of consistency

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A, KOLKATA BEFORE SH. P.M.JAGTAP, VICE PRESIDENT & SH.S.S.VISWANETHRA RAVI, JUDICIAL MEMBER ITA NO.42/KOL/2017 (ASSESSMENT YEAR-2012-13) ORDER PER S.S. VISWANETHRA RAVI, JUDICIAL MEMBER THIS APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 20.10.2016 PASSED BY CIT(A)-4 KOLKATA FOR AY 2012-13 U/S 143(3)/147 OF THE INCOME TAX ACT, 1961 (IN SHORT ACT). 2. GROUND NOS.1 & 2 FILED BY THE REVENUE CHALLENGING THE ACTION OF CIT(A) IN DELETING THE DISALLOWANCE MADE UNDER THE HEAD DEPRECIATION IN RESPECT OF TANGIBLE ASSETS. 3. HEARD BOTH PARTIES AND PERUSED MATERIAL AVAILABLE ON RECORD. IT WAS BROUGHT TO OUR NOTICE THAT THE SAID ISSUE IS COVERED BY THE ORDER OF THIS TRIBUNAL IN ASSESSEES OWN CASE FOR AY 2010-11 PLACED AT PAGE NO.204 OF PAPER BOOK WHICH HAS BEEN FOLLOWED BY THE ORDER OF THIS TRIBUNAL IN ASSESSEES OWN CASE FOR AY 2011-12 WHICH IS AT PAGE 170 OF THE PAPER BOOK. 4. ON PERUSAL OF THE ORDER, RELEVANT PORTION AT PARA 14 FOR AY 2010-11, IT IS NOTED THAT THIS TRIBUNAL INITIALLY PASSED ORDER BY HOLDING THAT THE ACIT, CIRCLE-12(2), KOLKATA-700069. VS M/S. VANTAGE ADVERTISING PVT.LTD., 10/1G, DIAMOND HARBOUR ROAD, KOLKATA-700027. PAN-AABCV1202B (APPELLANT) (RESPONDENT) APPELLANT BY SH.SHANKAR HALDER, SR.DR JCIT RESPONDENT BY SH.J.P.KHAITAN, SR.ADVOCATE & SH. RAVI MITTAL, ACA DATE OF HEARING 26.11.2018 DATE OF PRONOUNCEMENT 13.02.2019 ITA NO.42/KOL/2017 (ASSESSMENT YEAR-2012-13) PAGE | 2 ASSESSEE IS ELIGIBLE FOR DEDUCTION AT 100% DEPRECIATION ON TEMPORARY HOARDING IN AY 2004-05 WHICH IS BEING FOLLOWED BY THIS TRIBUNAL FOR AY 2005-06, 2006-07 TO 2011-12. THE RELEVANT PORTION OF WHICH IS REPRODUCED HEREIN BELOW:- 14. ACCORDING TO THE AO ERECTION OF HOARDINGS IS DONE BY FIRST CREATING AN IRON STRUCTURE FABRICATED ACCORDING TO THE REQUIREMENTS. THE IRON STRUCTURE IS ERECTED ON A CEMENT BASE WHICH IS A PERMANENT STRUCTURE. ON THIS IRON STRUCTURE THERE IS A WOODEN BOARD ON WHICH THE FINAL ADVERTISEMENT SHEET IS DISPLAYED. ACCORDING TO THE AO HOARDINGS THEREFORE HAVE LIFE TIME FOR A CONSIDERABLE PERIOD AND THEREFORE CANNOT BE REGARDED AS PURELY TEMPORARY ERECTION. IN ITA NOS.1054 & 1055/KOL/2008 DATED 30.06.2009 FOR A.Y.2004-05 AND 2005-06 IN ASSESSEES OWN CASE AND ITA NOS. 1388 TO 1392/KOL/2012 ORDER DATED 10.03.2015 FOR A.Y. 2004-05, 2006-07 TO 2009-10 IN ASSESSEES OWN CASE THE TRIBUNAL ALLOWED 100% DEPRECIATION ON HOARDING STRUCTURES IRRESPECTIVE OF WHETHER HOARDINGS WERE USED FOR LESS THAN OR MORE THAN 180 DAYS DURING THE RELEVANT PREVIOUS YEAR. IT WAS THE PLEA OF THE ASSESSEE THAT HOARDINGS HAD A LIFE OF ONE OR TWO MONTHS OR LESS THAN A YEAR AS THEY WERE EXPOSED TO SUN, RAIN AND ADVERSE WEATHER CONDITIONS AND WERE TO BE REGARDED AS TEMPORARY STRUCTURES WHICH ARE ELIGIBLE FOR DEDUCTION AT 100% DEPRECIATION. ACCORDING TO THE AO IN NONE OF THOSE DECISIONS RENDERED IN ASSESSEES OWN CASE, THE QUESTION WHETHER ADVERTISEMENT HOARDINGS CAN BE REGARDED AS PERMANENT OR TEMPORARY STRUCTURE WAS EVER DECIDED. THE AO THEREFORE DISALLOWED THE DEPRECIATION CLAIMED AT 100% HOARDINGS. ACCORDING TO THE AO HOARDINGS HAVE TO BE REGARDED AS PLANT AND MACHINERY ON WHICH ALLOWABLE DEPRECIATION AS PER RULES WAS ONLY 15%. THE AO ACCORDINGLY DISALLOWED THE DIFFERENCE BETWEEN THE DEPRECIATION CLAIMED BY THE ASSESSEE AND THAT ALLOWED BY THE AO. 15. ON APPEAL BY THE ASSESSEE, THE CIT(A) ALLOWED DEPRECIATION AT 100% ON HOARDINGS. IN DOING SO THE CIT(A) FOLLOWED THE DECISIONS RENDERED BY THE TRIBUNAL REFERRED TO IN THE EARLIER PARAGRAPHS OF THIS ORDER. THE CIT(A) DIRECTED THE AO TO ALLOW THE CLAIM OF THE ASSESSEE FOR DEPRECIATION AT 100% ON HOARDINGS. 16. AGGRIEVED BY THE ORDER OF THE CIT(A), THE REVENUE HAS RAISED GR.NO.3 BEFORE THE TRIBUNAL. THE LD. DR, SUBMITTED THAT UNDER PART-A IN APPENDIX- I OF THE RULES, UNDER THE HEAD TANGIBLE ASSETS ENTRY (4) DEPRECIATION AT 100% ON PURELY TEMPORARY ERECTIONS SUCH AS WOODEN STRUCTURE IS ALLOWED. ACCORDING TO HIM THE HOARDINGS IN QUESTION CANNOT BE REGARDED AS PURELY TEMPORARY ERECTION. 17. WE HAVE GIVEN A VERY CAREFUL CONSIDERATION TO THE RIVAL SUBMISSIONS. WE ARE OF THE VIEW THAT THE TRIBUNAL HAS ALREADY TAKEN A VIEW IN FAVOUR OF THE ASSESSEE IN THE PAST ASSESSMENT REFERRED TO IN THE EARLIER PART OF THIS ORDER. IT CANNOT BE ARGUED BY THE LD. DR AT THIS STAGE THAT IN NONE OF THESE DECISIONS THE QUESTION WHETHER THE HOARDINGS WERE TEMPORARY OR PERMANENT STRUCTURE WAS CONSIDERED BY THE TRIBUNAL. GOING BY THE PRINCIPLE OF CONSISTENCY WE ARE OF THE VIEW THAT IT WOULD BE JUST AND ITA NO.42/KOL/2017 (ASSESSMENT YEAR-2012-13) PAGE | 3 PROPER NOT TO TAKE A VIEW DIFFERENT FROM THE VIEW WHICH HAS ALREADY BEEN TAKEN IN ASSESSEES OWN CASE IN THE PAST. EVEN IN THE ORDER OF ASSESSMENT THE FACTS TO SUBSTANTIATE A STAND TAKEN BY THE REVENUE HAVE NOT BEEN BROUGHT OUT. 5. LD.DR DID NOT BRING ON RECORD ANY ORDER CONTRARY TO THE ORDERS PASSED BY THIS TRIBUNAL IN ASSESSEES OWN CASE AS DISCUSSED ABOVE. 6. IN VIEW OF THE ABOVE, WE FIND NO INFIRMITY IN THE ORDER OF CIT(A). THUS, GROUND NOS.1 & 2 RAISED BY THE REVENUE ARE DISMISSED. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13.02.2019. SD/- SD/- (P.M.JAGTAP) (S.S.VISWANETHRA RAVI) VICE PRESIDENT JUDICIAL MEMBER DATE:- 13.02.2019 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT- ACIT, CIRCLE-12(2), KOLKATA-700069. 2. RESPONDENT- M/S. VANTAGE ADVERTISING PVT.LTD., 10/1G, DIAMOND HARBOUR ROAD, KOLKATA-700027. 3. CIT-KOLKATA 4. CIT(APPEALS)-KOLKATA 5. DR: ITAT -KOLKATA BENCHES BY ORDER AR/H.O.O ITAT, KOLKATA