DCIT, New Delhi V. M/s. Capital Care India P. Ltd., New Delhi

ITA 4627/DEL/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7518 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 4 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 19-11-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 05-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation; Tax effect
• Section: 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : B NEW DELHI BEFORE SHRI J.SUDHAKAR REDDY, AM AND SHRI GEORGE GEORGE K, JM ITA NO: 4627/DEL/2013 AY : - 2009-10 DCIT VS. M/S. CAPITAL CARE INDIA PVT. LTD. CIRCLE-3 (1), 603, ASHISH CORPORATE TOWER, NEW DELHI. KARKAR DOOMA COMMUNITY CENTRE, NEW DELHI 110 092. (PAN AABCC5694E) (APPELLANT) (R ESPONDENT) APPELLANT BY :S MT. PARWINDER KAUR, SR. DR RESPONDENT :SH RI R.S. AHUJA, CA O R D E R PER J.SUDHAKAR REDDY, ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE DEPARTMENT AGAINST T HE ORDER DATED 2.5.2013 OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-VI, NEW DE LHI, PERTAINING TO THE ASSESSMENT YEAR 2009-10. THE GROUNDS RAISED READ AS FOLLOWS :- 1. WHETHER LD. CIT(A) HAS ERRED IN LAW AND ON FACTS I N DELETING THE ADDITION MADE BY THE AO AMOUNTING TO RS. 4,20,000/- TREATING IT AS ADVANCE FROM CUSTOMERS IGNORING THE FACT THAT THE WORK HAS ALREA DY BEEN COMPLETED BY THE ASSESSEE AS ALSO CONFIRMED BY THE CUSTOMER. 2. WHETHER LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION MADE BY THE AO BY DISALLOWING BUSINESS PROMOTION EX PENSES AMOUNTING TO RS. 1,25,000/- BY FAILING TO APPRECIATE THE FACT THAT THE ASSESSEE FAILED TO PRODUCE FULL VOUCHERS OF EXPENSES BEFORE THE AO. 3. WHETHER LD. CIT(A) HAS ERRED IN LAW AND ON FACTS I N DELETING THE ADDITION MADE BY THE AO ON THE ISSUE OF EXTRA DEPRECIATION O N COMPUTER ITA 4627/DEL/2013 AY 2009-10 DCIT VS. M/S. CAPI TAL CARE INDIA (P) LTD. 2 PERIPHERALS AMOUNTING TO RS. 10,028/- IGNORING THE FACT THAT THE RULE 5 OF I.T. RULES, 1962 SPECIFICALLY ALLOW HIGHER RATE OF DEPRECIATION AT 60% ONLY ON COMPUTER INCLUDING COMPUTER SOFTWARE ONLY AND NO T ON COMPUTER ACCESSORIES. 4. WHETHER LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION MADE BY THE AO U/S 14A BY IGNORING THE FACT THAT TH E PROVISIONS OF SECTION 14A ARE ATTRACTED WHETHER OR NOT SHARES ARE HELD AS STOCK IN TRADE OR AS INVESTMENT AS HELD BY THE HONBLE ITAT, KOLKATA B-B ENCH IN THE CASE OF DCIT VS. M/S. GULSHAN INVESTMENT CO. LTD. 2. AT THE VERY OUTSET THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE TAX EFFECT IN THE APPEAL OF THE REVENUE IS BELOW THE PRESCRIBED L IMIT FOR FILING OF APPEAL BEFORE THE ITAT. IT WAS SUBMITTED THE TAX EFFECT IS BELOW RS. 4 LAKH S. THE LD. COUNSEL FOR THE ASSESSES SUBMITTED INSTRUCTION NO. 5/2014 WHICH PRESCRIBED T HE REVISED MONETARY LIMITS FOR FILING APPEAL TO TRIBUNAL AT RS. 4 LACS IS APPLICABLE TO P ENDING CASES AND RELIED ON THE RECENT KOLKATA TRIBUNAL BENCH ORDER IN THE CASE OF DCIT VS . SUSHILA SARAOGI REPORTED IN 2014 (11) TMI 294 ITAT KOLKATA . 3. LD. DR PRESENT WAS DULY HEARD. 4. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE TRIBUNAL IN THE CASE OF DEPUTY COMMR. OF INCOME TAX VS. SUSHILA SARAOGI (SUPRA) AFTER CONSIDERING THE PRECEDENTS ON THE SUBJECT HELD INSTRUCTION NO. 5/1 4 ISSUED BY THE CBDT ON 10.7.2014 IS APPLICABLE TO THE PENDING APPEALS. THE TRIBUNAL FOL LOWED THE DICTUM LAID DOWN THE JUDGMENTS OF THE VARIOUS HIGH COURTS INCLUDING THE TWO JUDGMENTS OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. M/ S. P.S. JAIN & CO. IN ITA NO.179/1991 DATED 2.8.2010 AND IN THE CASE OF COMMISSIONER OF I NCOME TAX VS. DELHI RACE CLUB LTD. DATED 3.3.2011. IN VIEW OF THE ORDER OF THE TRIBUNA L IN THE CASE OF DEPUTY COMMISSIONER OF INCOME TAX VS. SUSHILA SARAOGI WHICH HAVE ELABORATE LY CONSIDERED THE IDENTICAL ISSUE, WE ITA 4627/DEL/2013 AY 2009-10 DCIT VS. M/S. CAPI TAL CARE INDIA (P) LTD. 3 HOLD THAT INSTRUCTION NO. 5/2014 ISSUED BY THE CBDT ON 10.7.2014 IS APPLICABLE TO THE PENDING APPEALS. IN THE INSTANT CASE, THE TAX EFFEC T BEING BELOW RS. 4 LACS, WITHOUT GOING INTO THE ISSUE ON MERIT, WE DISMISS THE APPEAL OF T HE REVENUE IN LIMINEE. IT IS TO BE MENTIONED THAT LD. DR WAS UNABLE TO POINT OUT ANY EXCEPTIONAL CIRCUMSTANCES /SITUATION (MENTIONED IN BOARD INSTRUCTION NO. 5 / 2014) FOR FILING AN APPEAL DESPITE THE MONETARY LIMIT BEING BELOW THE PRESCRIBED LIMIT. 5. IN THE RESULT APPEAL OF THE REVENUE IS DISM ISSED. THIS DECISION WAS PRONOUNCED IN THE OPEN C OURT ON 11 TH DECEMBER, 2014. SD/- SD/- (GEORGE GEORGE K) (J.SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 11 TH DECEMBER, 2014 *VEENA COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR 6. GUARD FILE BY ORDER DEPUTY REGISTRAR