ACIT 8(2), MUMBAI V. NUCLEUS SECURIRITES LTD iNOW KNOWAN AS ASIT C. MEHTA FINANCIAL SERVICES LTD), MUMBAI

ITA 5122/MUM/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8514 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-10-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 17-09-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 01-07-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SATISH R MODI
• Keywords: Business income; Depreciation

Judgement Text

1 , ,, , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B MUMBAI . , ! BEFORE SHRI D. MANMOHAN, VICE PRESIDENT ' ' ' ' / AND #$%&, $' () SHRI RAJENDRA, ACCOUNTANT MEMBER . / ITA NO. 5122/M/2011 + + + + / // / ASSESSMENT YEAR 2003-04 ITO WD. 8(1)(1), AAYAKAR BHAVAN, MUMBAI. VS. NUCLEUS SECURITIES LTD.(NOW KNOWN AS ASIT C MEHTA FINANCIAL SERVICES LTD. NUCLEUS HOUSE,OPP. L&T GATE NO.7, SAKI VIHAR RD.ANDHERI (EAST), MUMBAI-400 072. PAN: AABCN 6882 D ( ,- / // / APPELLANT ) ( ./,- / RESPONDENT ) ,- 0 $ / APPELLANT BY : SHRI MOHIT JAIN ./,- 1 0 $ / RESPONDENT BY : SHRI SATISH R MODI 1 2' / // / DATE OF HEARING : 17-09-2012 3+ 1 2' / DATE OF PRONOUNCEMENT : 03-10-2012 ($4 / O R D E R PER RAJENDRA, A.M. THE PRESENT APPEAL IS DIRECTED AGAINST THE ORDER DT .10-03-2011 PASSED BY THE CIT(A)-17, MUMBAI.FOLLOWING GROUNDS OF APPEAL HAVE BEEN RAISED BY THE ASSESSING OFFICE (AO): ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN DIRECTING T HE AO TO ALLOW DEPRECIATION OF RS.18,66,735/- ON LAND. THE APPELLANT PRAYS THAT THE ORDER OF CIT(A) ON THE ABOVE GROUND BE SET ASIDE AND THAT OF THE A.O. BE RESTORED. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GR OUNDS OR ADD A NEW GROUND WHICH MAY BE NECESSARY. ASSESSEE-COMPANY,ENGAGED IN THE BUSINESS OF MONEY C HANGER, BUYING AND SELLING FOREIGN 2 CURRENCIES/ TRAVELER CHEQUES,ARBITRAGE ETC.,FILED I TS RETURN OF INCOME ON 28.11.2003 DECLARING TOTAL INCOME OF RS.17,66,289/-.ASSESSMENT ORDER WAS PASSE D U/S.143(3) OF THE INCOME-TAX ACT, 1961(ACT) ON 30.09.2005. 2. THE ASSESSEE HAD,WHILE FILING ITS RETURN OF INCOME, CLAIMED DEPRECIATION ON ACCOUNT OF OFFICE PREMISES AS PER THE ACT, AMOUNTING TO RS. 30,68,205 /-.ACCORDING TO THE AO THE CLAIM SO MADE BY THE ASSESSEE INCLUDED DEPRECIATION ON THE VALUE OF THE LAND ON WHICH THE OFFICE PREMISES WAS CONSTRUCTED.ACCORDING TO THE AO SAID CLAIM OF DEPRE CIATION MADE BY THE ASSESSEE-COMPANY WAS NOT ALLOWABLE IN LIGHT OF THE DECISION OF ALPS THEA TER(65ITR377) DELIVERED BY THE HONBLE SUPREME COURT. 3. ASSESSEE PREFERRED AN APPEAL BEFORE THE FIRST APPEL LATE AUTHORITY(FAA).AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND THE ASSESSMENT ORDE R HE HELD THAT THE ITAT IN ASSESSEES OWN CASE FOR A.Y.2001-02 (ITA NO.1537/MUM/05 DTD.01.11. 2006) HELD THAT THE CLAIM OF DEPRECIATION MADE BY THE ASSESSEE WAS ONLY ON SUPER STRUCTURE AN D NOT ON COST OF LAND.ALLOWING THE APPEAL FILED BY THE ASSESSEE HE DELETED THE ADDITION MADE BY THE AO. 4. BEFORE US, DEPARTMENTAL REPRESENTATIVE (DR) RELIED UPON THE ORDER OF THE AO,WHERE AS THE AUTHORISED REPRESENTATIVE(AR) RELIED UPON THE ORDER OF THE FAA.HE FURTHER SUBMITTED THAT IN EARLIER AYS.ALSO SAME ISSUE WAS ALSO DECIDED IN FAV OUR OF THE ASSESSEE BY THE FAA AND THE TRIBUNAL. 4.1 .WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED TH E MATERIAL BEFORE US.IT IS FOUND THAT H BENCH OF ITAT,MUMBAI VIDE ITS ORDER DTD.30.06.2011 (ITA NO.4061/MUM/2010-AY.2005-06) HAS DECIDED THE MATTER AGAINST THE REVENUE DISMISSI NG THE APPEAL FILED BY THE AO.IT WAS ALSO MENTIONED IN THE SAID ORDER THAT FAA HAS NOTICED TH AT APPEAL FILED BY THE DEPARTMENT,IN THIS REGARD,BEFORE THE HONBLE BOMBAY HIGH COURT WAS DIS MISSED BY THE COURT ON 29.9.2008.WE FIND THAT APPEAL FILED BY THE AO FOR THE EARLIER AY .WAS DISMISSED BY THE TRIBUNAL AS UNDER : 5.WE ARE OF THE VIEW THAT THE ISSUE HAS ALREADY BE EN CONSIDERED AND DECIDED BY THE TRIBUNAL AND THERE IS NO REASON TO TAKE A DIFFERENT VIEW IN THE PRESENT A SSESSMENT YEAR. THE ID. D.R HOWEVER, POINTED OUT TH AT THE ASSESSEE HAD SHOWN RENTAL INCOME THAT IT RECEIV ED ON A PROPERTY AS BUSINESS INCOME BUT THE AO TREATED THE SAME AS INCOME FROM HOUSE PROPERTY. ACC ORDING TO THE ID. D.R., IF THE PROPERTY IN RESPECT OF WHICH THE DEPRECIATION IS CLAIMED AND THE PROPERTY FOR WHICH THE RENTAL INCOME WAS RECEIVED BY THE ASSESSEE AND CONSIDERED AS BUSINESS INCOME BY THE A SSESSEE BUT WHICH WAS TREATED AS INCOME FROM HOUSE PROPERTY BY THE AO, IS ONE AND THE SAME, THEN THE A SSESSEE WOULD NOT BE ENTITLED TO CLAIM DEPRECIATION . 6. WE HAVE CONSIDERED THIS SUBMISSION AND WE FIND T HAT IN PARA 5.1 THE A.O HAS CLEARLY REFERRED TO THE FACT THAT THE CLAIM FOR DEPRECIATION WHICH IS I N DISPUTE RAISED BY THE REVENUE IN THIS APPEAL RELA TES TO OFFICE PREMISES. IN THE EARLIER PARA I.E. PARA 4 TH E AO HAS DISCUSSED ABOUT THE RENLAL INCOME RECEIVED BY THE ASSESSEE. A READING OF PARA 4 & 5 OF THE ASSESS MENT ORDER CLEARLY SHOWS THAT THE AO HAS NOT RAISED ANY SUCH DISPUTE AS IS NOW SOUGHT TO BE PUT FORTH B Y THE D.R BEFORE US. THE ID. D.R WAS ALSO NOT ABLE TO SHOW ANY PRIMA-FADE MATERIAL TO COME TO A CONCLUSIO N THAT THE PROPERTY IN RESPECT OF WHICH THE ASSESSE E RECEIVED RENTAL INCOME AND WHICH WAS DECLARED AS BU SINESS INCOME AND THE OFFICE PREMISES IN RESPECT OF WHICH DEPRECIATION WAS CLAIMED BY THE ASSESSEE ARE ONE AND THE SAME. IN THE CIRCUMSTANCES, WE REJECT T HE ARGUMENTS PUT FORTH BEFORE US BY THE ID. D.R. RESPE CTFULLY FOLLOWING THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE WE DISMISS THE APPEAL OF THE RE VENUE. 3 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. RESPECTFULLY FOLLOWING THE ORDER OF THE COORDINATIN G BENCH WE DECIDE GROUND NO.1-3 AGAINST THE AO. APPEAL FILED BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD OCTOBER, 2012. SD/- SD/- ( . / D. MANMOHAN) ( #$%& / RAJENDRA) ! / VICE PRESIDENT $' () / ACCOUNTANT MEMBER MUMBAI, 5( DATE: 3 RD OCTOBER, 2012 ($4 ($4 ($4 ($4 1 11 1 .26 .26 .26 .26 7$6+2 7$6+2 7$6+2 7$6+2/ COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. THE CONCERNED CIT (A) 4. THE CONCERNED CIT 5. DR B BENCH, ITAT, MUMBAI 6. GUARD FILE /62 .2 //TRUE COPY// ($4 ($4 ($4 ($4 / BY ORDER, / // / # # # # DY./ASSTT. REGISTRAR , , , , / ITAT, MUMBAI