ACIT 5(2), MUMBAI V. MAHARASHTRA STATE ROAD DEVELOPMENT CORPORATION LTD, MUMBAI

ITA 4656/MUM/2010

• Counselvise Citation: 465619914 RSA 2010
• Duration Of Justice: 1 year(s) 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Next Hearing Date: 12-10-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 04-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS KU SUM INGALE
• Assessee Lawyers: B S SHARMA
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH: MUMBAI BEFORE SHRI R.S. PADVEKAR, JUDICIAL MEMBER AND SHRI RAJENDRA SINGH, ACCOUNTANT MEMBER ITA NO.4656/MUM/2010 (ASSESSMENT YEAR: 2006-07) ASSTT. COMMISSIONER OF INCOME TAX-5(2), ROOM NO.571, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI -400 020 ....... APPELLANT VS M/S. MAHARASHTRA STATE ROAD DEVELOPMENT CORPORATION LTD., PWD COMPD. NEAR PRIYADARSHNI PARK, NEPEASEA ROAD, MUMBAI -400 036 ..... RESPONDENT PAN: AAACM 6833 C APPELLANT BY: MRS. KUSUM INGALE RESPONDENT BY: SHRI B.S. SHARMA DATE OF HEARING: 12.10.2011 DATE OF PRONOUNCEMENT: 28.10.2011 O R D E R PER R.S. PADVEKAR, JM IN THIS APPEAL THE REVENUE HAS CHALLENGED THE IMPUG NED ORDER OF THE LD. CIT (A) IX, MUMBAI DATED 29.03.2010 FOR TH E A.Y. 2006-07. GROUND NO.1 READS AS UNDER:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) HAS ERRED IN DELETING THE DISALLOWANCE OF DEPRECIATION OF ` 4,64,36,969/- ON RAIL OVER BRIDGE ALTHOUGH THE LEGAL OWNERSHIP OF TH E SAID ASSETS WAS ON THE ASSESSEE COMPANY. ITA 4656/MUM/2010 M/S. MAHARASHTRA STATE ROAD DEVELOPMENT CORPORATION LTD. 2 2. WE HAVE HEARD THE PARTIES. THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT THE ISSUE ARISING FROM GROUND NO.1 IS ON RAIL OVER BRIDGE IS COVERED IN FAVOUR OF THE ASSESSEE IN ASSESSEES OWN CASE BY THE DECISION OF THE TRIBUNAL IN THE A.Y. 2002-03. THE LD. COUNSEL ALSO REFERRED TO THE PAPER BOOK WHERE COPY OF THE TRIBUN AL ORDER IS PLACED. THE LD. CIT DR FAIRLY CONCEDED THAT THE GROUND NO.1 IS COVERED IN FAVOUR OF THE ASSESSEE. WE FIND THAT THE IDENTICAL ISSUE OF THE DISALLOWANCE OF THE DEPRECIATION WAS BEFORE THE TRI BUNAL IN THE A.Y. 2002-03 AND TRIBUNAL UPHELD THE ORDER OF THE LD. CI T (A) IN FAVOUR OF THE ASSESSEE. THE ONLY SHORT CONTROVERSY IS THE LE GAL OWNERSHIP OF THE RAIL OVER BRIDGE IS NOT IN THE NAME OF THE ASSESSEE COMPANY THOUGH THE ASSESSEE HAS PHYSICAL POSSESSION AND RIGHT TO C OLLECT THE TOLL ON THE SAID BRIDGE. THE TRIBUNAL FOLLOWING THE DECISI ON OF HONBLE SUPREME COURT IN THE CASE OF MYSORE MINERALS LTD. V S. CIT 239 ITR 775 UPHELD THE ORDER OF THE LD. CIT (A) ON THIS ISS UE. WE, THEREFORE, FOLLOWING THE ORDER OF THE TRIBUNAL IN THE ASSESSEE S OWN CASE ON THE IDENTICAL SET OF FACTS AND ISSUE DISMISS GROUND NO. 1. WE FURTHER FIND THAT THE DECISION OF THE TRIBUNAL HAS BEEN AFFIRMED BY THE HONBLE JURISDICTIONAL HIGH COURT IN ITA NO.155 OF 2010 BY JUDGMENT DATED 28.02.2011 BY DISMISSING THE APPEAL FILED BY THE RE VENUE. 3. GROUND NO.2 READS AS UNDER:- 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND AS PER LAW, THE LD. CIT (A) ERRED IN DIRECTING TO DELETE THE DISALLOWANCE MADE BY THE A.O. OF PRIOR PERIOD EXPENSES (REBATE ON TOLL INCOME) OF ` 76.55 LAKHS WHICH PERTAINED TO EARLIER YEARS. 4. WE HAVE HEARD THE PARTIES. THE FACTS PERTAINING TO THE ISSUE ARE AS UNDER. THE ASSESSEE IS FULLY OWNED BY THE GOVER NMENT OF MAHARASHTRA WHICH IS ENGAGED IN CONSTRUCTION OF THE BRIDGES, FLYOVERS, ITA 4656/MUM/2010 M/S. MAHARASHTRA STATE ROAD DEVELOPMENT CORPORATION LTD. 3 ROADS AND OTHER INFRASTRUCTURE FACILITIES. SO FAR AS A.Y. 2006-07 IS CONCERNED, IT WAS NOTICED BY THE A.O. THAT THE ASSE SSEE ENHANCED THE LOSS BY ADDING ` 2231.55 LAKHS ON ACCOUNT OF PRIOR PERIOD EXPENDITURE, WHICH INCLUDED REBATE ON TOLL INCOME O F RS. 76.55. ONLY ISSUE IN THIS APPEAL IS REBATE ON TOLL INCOME. TH E A.O. HELD THAT THE ASSESSEE WAS FOLLOWING MERCANTILE SYSTEM OF ACCOUNT ING AND HENCE, ON THE PRINCIPLES OF THE ACCRUAL, THE SAME CANNOT BE A LLOWED. THE ASSESSEE CARRIED THE ISSUE BEFORE THE LD. CIT (A) A ND WHO GAVE RELIEF ON REBATE ON TOLL INCOME, BY FOLLOWING ORDER OF THE TR IBUNAL IN ASSESSEES OWN CASE FOR A.Y.2002-03 (ITA NO. 5612/MUM/07). NO W, THE REVENUE IS IN APPEAL BEFORE US. WE FIND THAT LD. CIT(A) HA S FOLLOWED THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE. HENCE, IN OUR OPINION NO INTERFERENCE IS CALLED FOR ON THIS ISSUE IN THE ORD ER OF THE LD. CIT (A). ACCORDINGLY GROUND NO.2 IS ALSO DISMISSED. 5. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 2 8TH OCTOBER 2011. SD/- SD/- ( RAJENDRA SINGH ) ACCOUNTANT MEMBER ( R.S. PADVEKAR ) JUDICIAL MEMBER MUMBAI, DATE : 28TH OCTOBER, 2011 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A)-9, MUMBAI. 4) THE CIT-.., MUMBAI. 5) THE D.R. J BENCH, MUMBAI. BY ORDER / / TRUE COPY / / ASSTT. REGISTRAR I.T.A.T., MUMBAI *CHAVAN ITA 4656/MUM/2010 M/S. MAHARASHTRA STATE ROAD DEVELOPMENT CORPORATION LTD. 4 SR.N. EPISODE OF AN ORDER DATE INITIALS CONCERNED 1 DRAFT DICTATED ON 17.10.2011 SR.PS 2 DRAFT PLACED BEFORE AUTHOR 18.10.2011 SR.PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER