M/s. National Housing Bank, New Delhi V. DCIT, New Delhi

ITA 477/DEL/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 6272 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2012-2013
• Appeal Filed On: 30-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation
• Section: 143(3); 32

Judgement Text

ITA NO.- 477/DEL/2017. M/S NATIONAL HOUSING BANK. PAGE 1 OF 10 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: E: NEW DELHI) BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA NO:- 477/DEL/2017 (ASSESSMENT YEAR: 2012-13) M/S NATIONAL HOUSING BANK, CORE-5A, INDIA HABITAT CENTRE, LODHI ROAD, NEW DELHI. VS. DY. COMMISSIONER OF INCOME TAX, CIRCLE-18(1), NEW DELHI. PAN NO: AABCN2600H APPELLANT RESPONDENT ASSESSEE BY : SHRI SURENDER KUMAR, C.A. REVENUE BY : MS. RAKHI VIMAL, SR. DR ORDER PER ANADEE NATH MISSHRA, AM (A) THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST IMPUGNED APPELLATE ORDER DATED 21.10.2016 OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-33, NEW DELHI, [LD. CIT(A), FOR SHORT), PERTAINING TO ASSESSMENT YEAR 2012-13, ON THE FOLLOWING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE AUTHORITIES BELOW HAVE ERRED IN DISALLOWING A SUM OF RS. 36,40,145/- BEING DEPRECIATION ON OFFICE BUILDINGS CONSIDERING THE SAME ATTRIBUTABLE TOWARDS COST OF LAND . 2 . THE AUTHORITIES BELOW HAVE ERRED IN NOT CONSIDERING THE CONTENTION OF THE ASSESSEE THAT IN ABSENCE OF SEGREGATION OF THE VALU E OF LAND, DEPRECIATION WAS BEING CLAIMED ON THE BASIS OF TOTAL COST PAID T O THE INDIA HABITAT CENTRE. ITA NO.- 477/DEL/2017. M/S NATIONAL HOUSING BANK. PAGE 2 OF 10 3. THE AUTHORITIES BELOW HAVE ERRED IN NOT CONSIDER ING THE CONTENTION OF THE ASSESSEE THAT THE LAND IS ALSO LEASEHOLD WHICH IS A LSO SUBJECT TO AMORTIZATION AND EFFECTIVELY THE TOTAL COST PAID FOR THE PREMISE S WILL BE CONSIDERED FOR ALLOWANCE OF DEPRECIATION. 4. THE AUTHORITIES BELOW HAD ERRED IN MAKING/ SUSTA INING ILLEGAL ADDITIONS BY APPLYING COMPLETELY DISTINGUISHABLE CASES AND IGNOR ING THE CASES CITED DURING THE PROCEEDINGS WHICH WERE APPLICABLE IN THE APPELLANTS CASE. THUS SUSTAINING THE ILLEGAL LEVY OF DISALLOWANCES UNDER THE STATED PROVISIONS. 5. THE APPELLANT PRAYS FOR FURTHER/ ADDITIONAL SUBM ISSIONS AND GROUNDS TO BE ALLOWED TO BE FILED BEFORE FINAL HEARING AND FURTHE R PRAYS FOR EARLY OUT-OF- TURN HEARING TO ALLOW THE APPEAL WITH CONSEQUENTIAL RELIEF, AFTER HEARING BOTH SIDES. 6. IT IS PRAYED ACCORDINGLY. (B) ASSESSMENT ORDER DATED 31.03.2015 WAS PASSED UNDER SECTION 143(3) OF INCOME TAX ACT, 1961 (I.T. ACT, FOR SHORT), WHEREIN, INT ERALIA, DEPRECIATION AMOUNTING TO RS. 40,44,605/- ON OFFICE PREMISES AT INDIA HABITAT CEN TRE WAS DISALLOWED BY THE ASSESSING OFFICER (AO, FOR SHORT). THE RELEVANT PORTION OF THE ASSESSMENT ORDER DATED 31.03.2015 IS REPRODUCED AS UNDER: ITA NO.- 477/DEL/2017. M/S NATIONAL HOUSING BANK. PAGE 3 OF 10 (C) AGGRIEVED, THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A). VIDE IMPUGNED APPELLATE ORDER DATED 21.10.2016 OF THE LD. CIT(A) RESTRICTED THE DISALLOWANCE TO RS. 36,40,145/- AND DELETED THE REMAINING AMOUNT. THE RELEVANT PORTION OF THE IMPUGNED APPELLATE ORDER DATED 21.10.2016 OF THE LD. CIT(A) IS REPRODUCED AS UNDER: ITA NO.- 477/DEL/2017. M/S NATIONAL HOUSING BANK. PAGE 4 OF 10 ITA NO.- 477/DEL/2017. M/S NATIONAL HOUSING BANK. PAGE 5 OF 10 ITA NO.- 477/DEL/2017. M/S NATIONAL HOUSING BANK. PAGE 6 OF 10 (C.1) AGGRIEVED AGAIN, THE ASSESSEE FILED THIS PRES ENT APPEAL BEFORE INCOME TAX APPELLATE TRIBUNAL (ITAT, FOR SHORT). IN THE COU RSE OF APPELLATE PROCEEDINGS IN ITAT, A SYNOPSIS WAS FILED FROM ASSESSEES SIDE; THE RELEVA NT PORTION OF WHICH IS REPRODUCED AS UNDER: ITA NO.- 477/DEL/2017. M/S NATIONAL HOUSING BANK. PAGE 7 OF 10 (C.2) A COPY OF ORDER IN THE CASE OF JOINT COMMISSIONER OF INCOME-TAX VS. RAJESH EXPORTS LTD. [2006] 9 SOT 28 (BANGALORE)(URO) AND CO PY OF ORDER DATED 28.03.2019 OF CO-ORDINATE BENCH OF ITAT, DELHI, IN ASSESSEES OWN CASE FOR ASSESSMENT YEARS 2010- 11 AND 2011-12 IN ITA NOS.- 536/DEL/2014, 6888/DEL/ 2014, 708/DEL/2014 AND 6799/DEL/2014; WERE ALSO FILED FROM THE ASSESSEES SIDE DURING APPELLATE PROCEEDINGS IN ITAT. (D) AT THE TIME OF HEARING BEFORE US, THE LD. AUTHORIZ ED REPRESENTATIVE (LD. AR, FOR SHORT) FOR ASSESSEE SUBMITTED THAT THE ISSUE IN DI SPUTE REGARDING ASSESSEES CLAIM OF DEPRECIATION AMOUNTING TO AFORESAID RS. 36,40,145/- IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY AFORESAID ORDER DATED 28.03.2019 OF CO- ORDINATE BENCH OF ITAT, DELHI, IN ASSESSEES OWN CASE. HE FURTHER SUBMITTED THAT THE MATTER IS ALSO COVERED IN FAVOUR OF THE ASSESSEE BY THE AFORESAID ORDER IN THE CASE OF JOINT COMMISSIONER OF INCOME-TAX VS. RAJESH EXPORTS LTD. (SUPRA). THE LEARNED SENIOR DEPARTMENTAL REPRESENTATIVE (LD. SR. DR, FOR SHORT) FOR REVENUE AGREED THAT THE ISS UE IN DISPUTE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE AFORESAID ORDER IN TH E CASE OF JOINT COMMISSIONER OF INCOME-TAX VS. RAJESH EXPORTS LTD. (SUPRA) AND ORDER DATED 28.03.2019 OF CO-ORDINATE BENCH OF ITAT, DELHI, (SUPRA). (E) WE HAVE HEARD BOTH SIDES. WE HAVE ALSO PERUSED TH E MATERIALS AVAILABLE ON RECORD. IT IS NOT IN DISPUTE THAT THE ISSUE IN DIS PUTE IN THE PRESENT APPEAL IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY AFORESAID ORDE RS IN THE CASE OF JOINT COMMISSIONER OF INCOME-TAX VS. RAJESH EXPORTS LTD. (SUPRA) AND O RDER DATED 28.03.2019 OF CO- ORDINATE BENCH OF ITAT, DELHI, (SUPRA). ALSO, NO DI STINGUISHING FACTS AND CIRCUMSTANCES ITA NO.- 477/DEL/2017. M/S NATIONAL HOUSING BANK. PAGE 8 OF 10 HAVE BEEN BROUGHT TO OUR NOTICE BY EITHER SIDE TO P ERSUADE US TO TAKE A VIEW DIFFERENT FROM THE VIEW TAKEN BY THE ITAT IN THE AFORESAID OR DERS IN THE CASE OF JOINT COMMISSIONER OF INCOME-TAX VS. RAJESH EXPORTS LTD. ( SUPRA) AND ORDER DATED 28.03.2019 OF CO-ORDINATE BENCH OF ITAT, DELHI, (SU PRA). FOR EASE OF REFERENCE, THE RELEVANT PORTION OF THE AFORESAID ORDER DATED 28.03 .2019 OF CO-ORDINATE BENCH OF ITAT IN ASSESSEES OWN CASE IS REPRODUCED BELOW: 25. AO AS WELL AS ID. CIT (A) HAS DISALLOWED AN A MOUNT OF RS.40,44,605/- CLAIMED AS DEPRECIATION ON OFFICE BUILDING ON THE G ROUND THAT THE SAME IS ATTRIBUTABLE TOWARDS COST OF LAND. 26. LD. AR FOR THE ASSESSEE CONTENTED THAT IN THE A BSENCE OF ANY SEGREGATION OF VALUE OF LAND, DEPRECIATION HAS BEEN CLAIMED ON THE BASIS OF TOTAL COST PAID TO INDIA HABITAT CENTRE BECAUSE LAND IS ALSO L EASEHOLD BEING SUBJECT TO AMORTIZATION AND EFFECTIVELY THE TOTAL COST PAID FO R THE PREMISES WILL BE CONSIDERED FOR AMOUNT OF DEPRECIATION. LD. AR RELIED UPON THE DECISION RENDERED BY THE COORDINATE BENCH OF THE TERMINAL IN CIT VS. RAJESH EXPORTS LTD. (2006) 9 SOT 28 (BANG.) WHICH HAS FURTHER THAN RELIED UPON BY THE CO-ORDIN ATE BENCH OF THE TRIBUNAL IN EASE OF ITO VS MILLENNIUM SPIRE INDIA M ANAGEMENT (P) LTD. ITA NO.3297/DEL/2013. 27. OPERATIVE PART OF THE AFORESAID DECISIONS RENDE RED BY THE COORDINATE BENCH OF THE TRIBUNAL IN CIT VS, RAJESH EXPORTS LTD . (SUPRA) IS EXTRACTED FOR READY PERUSAL AS UNDER: UNDER SECTION 32(1) OF THE ACT, THE WORD ' BUILDING IS TO BE INTERPRETED AS THE SUPERSTRUCTURE AND NOT LAND. WHERE THE ASSESSEE PURCHASES BUILDING AND THE PURCHASE PRICE (AS PER SALE DEED) IS A COMP OSITE ONE (SALE DEED DOES NOT INDICATE THE PRICES OF LAND AND BUILDING S EPARATELY), THEN NO DISTINCTION AT FEAST IN THE CONSIDERATION PAID TO T HE VENDOR CAN BE MADE. HOWEVER, IF THERE IS A CLEAR-CUT IDENTITY IN RESPEC T OF PRICE PAID TO THE LAND AND BUILDING (LE., SALE DEED INDICATES PRICE OF LAN D AND BUILDING SEPARATELY), THEN ASSESSING OFFICER IS RIGHT IN ALL OWING DEPRECIATION ONLY AN THE BUILDING.' 28. IN THIS CASE ALSO, WHEN THE ASSESSEE BANK DOES NOT HAVE ANY SEGREGATION VALUE OF LAND AND BUILDING OF THE SAID PREMISES AND IT HAS PAID COMPOSITE PRICE, THE ENTIRE DEPRECIATION CLAIM IS ALLOWABLE UNDER SE CTION 32 OF THE ACT. SO, FOLLOWING THE AFORESAID DECISION RENDERED BY THE CO -ORDINATE BENCH OF THE TRIBUNAL IN CIT VS. RAJESH EXPORTS LTD. (SUPRA), AN D WHEN IT IS CATEGORIC CASE OF THE ASSESSEE THAT THE PURCHASE PRICE OF LAND AND BU ILDING IS COMPOSITE ONE AND IT ITA NO.- 477/DEL/2017. M/S NATIONAL HOUSING BANK. PAGE 9 OF 10 HAS NO SEGREGATION OF VALUE OF LAND AND BUILDING SE PARATELY, DISALLOWANCE MADE BY THE AO/ CIT (A) IS NOT SUSTAINABLE IN THE EYES O F LAW. SO, GROUND NO. 5 TO 8 OF ITA NO. 6888/DEL/2014 (AY 2011-12) OF ASSESSEES AP PEAL IS DETERMINED IN FAVOUR OF THE ASSESSEE. (E.1) RESPECTFULLY FOLLOWING THE AFORESAID ORDER DATED 28.03.2019 OF CO-ORDINATE BENCH OF ITAT IN ASSESSEES OWN CASE, WE ALSO DECID E THE ISSUE IN DISPUTE IN THE PRESENT APPEAL BEFORE US, IN FAVOUR OF THE ASSESSEE AND DIRECT THE AO TO ALLOW THE ASSESSEES CLAIM FOR DEPRECIATION AMOUNTING TO AFOR ESAID RS. 36,40,145/-. (F) IN THE RESULT, APPEAL FILED BY ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 10/02/2020. SD/- SD/- (AMIT SHUKLA) (ANADEE NATH M ISSHRA) JUDICIAL MEMBER ACCOUN TANT MEMBER DATED: 10/02/2020 POOJA/- COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI ITA NO.- 477/DEL/2017. M/S NATIONAL HOUSING BANK. PAGE 10 OF 10 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER