The ITO, Ward-8(2), Ahmedabad V. Soham Cold Storage Pvt.Ltd., Ahmedabad

ITA 516/AHD/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 0065 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-08-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 11-08-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 12-02-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K DHANESTA
• Assessee Lawyers: M M PATEL
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A AHMEDABAD BENCH A AHMEDABAD BENCH A AHMEDABAD BENCH A BEFORE BEFORE BEFORE BEFORE SHRI SHRI SHRI SHRI BHAVNESH BHAVNESH BHAVNESH BHAVNESH SAINI SAINI SAINI SAINI, , , , JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER AND AND AND AND SHRI SHRI SHRI SHRI N.S.SAINI N.S.SAINI N.S.SAINI N.S.SAINI, , , , ACCOUNTANT ACCOUNTANT ACCOUNTANT ACCOUNTANT MEMBER MEMBER MEMBER MEMBER DATE OF HEARING 17-8-10: DRAFTED ON: 17-8-10. ITA NO. 516 /AHD/ 2008 ASSESSMENT YEAR :2005-06 I NCOME TAX OFFICER, WARD 8(2), 4 TH FLOOR, A-WING AJANTA COMMERCIAL CENTRE, ASHRAM ROAD, AHMEDABAD. VS. SOHAM COLD STORAGE PRIVATE LTD., 01, LAXMI COMPLEX, HIGTHWAY SABARMATI, AHMEDABAD. PAN/GIR NO. : AAFCS 2067 M (A PPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI R. K. DHANESTA, D.R. RESPONDENT BY: SHRI M. M. PATEL. O R D E R O R D E R O R D E R O R D E R PER N.S.SAINI , ACCOUNTANT MEMBER :- THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-XI V, AHMEDABAD DATED 4-12-2007. 2. THE SOLE GROUND OF APPEAL TAKEN BY THE REVENUE I S THAT LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ER RED IN LAW AND ON FACTS IN LOOKING TO THE FACTS OF THE CASE, T HE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE UPHELD THE DECISION OF THE ASSESSING OFFICER IN ALLOWING DEPRE CIATION @ 10% ONLY. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E CLAIMED DEPRECIATION @ 25% ON COLD STORAGE BUILDING BY CONS IDERING THE SAME AS PLANT WHICH WAS ALLOWED BY THE LEARNED ASSE SSING OFFICER @ 10% BY TREATING THE SAME AS BUILDING RELYING ON T HE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF ANAND THEATRE 244 ITR 192 - 2 - (SC) AS DONE BY HIM IN THE PRECEDING ASSESSMENT YEA RS 2003-04 AND 2004-05. 4. ON APPEAL, LEARNED COMMISSIONER OF INCOME TAX(AP PEALS) ALLOWED THE CLAIM OF THE ASSESSEE BY FOLLOWING HIS ORDER FOR ASSESSMENT YEAR 2004-05 AND WHILE DOING SO HE HELD AS UNDER :- THE ONLY GROUND OF APPEAL IS RELATING TO GRANTING DEPRECIATION ON COLD STORAGE BUILDING @ 10% INSTEAD OF 25% CLAIMED BY THE ASSESSEE. THE ASSESSEE CLAIMED DEPRE CIATION ON COLD STORAGE BUILDING AT 25%, WHEREAS THE LEARNE D ASSESSING OFFICER ALLOWED DEPRECIATION @ 10%. ON SI MILAR ISSUE, THE LEARNED COMMISSIONER OF INCOME TAX(APPEA LS) HAS ALLOWED RELIEF TO THE APPELLANT FOR ASSESSMENT YEAR 2004-05 AND FOLLOWING THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS), I DIRECT THE LEARNED ASSESSIN G OFFICER TO ALLOW DEPRECIATION ON THE COLD STORAGE BUILDING @ 25% AS CLAIMED BY THE APPELLANT. 5. THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASS ESSEE SUBMITTED THAT AGAINST THE ORDER OF THE LEARNED COM MISSIONER OF INCOME TAX (APPEALS) FOR ASSESSMENT YEAR 2004-05 TH E REVENUE FILED APPEAL BEFORE THE TRIBUNAL AND THE TRIBUNAL I N REVENUES APPEAL IN ITA NO.1905/AHD/2007 FOR ASSESSMENT YEAR 2004-05 ORDER DATED 29-3-2010 CONFIRMED THE ORDER OF THE LE ARNED COMMISSIONER OF INCOME TAX (APPEALS). THEREFORE, F OLLOWING THE SAME THE APPEAL OF THE REVENUE SHOULD BE DISMISSED. 6. THE LEARNED DEPARTMENTAL REPRESENTATIVE AGREED W ITH THE SUBMISSION OF THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT WHILE CONSIDERING THE RATE OF DEPRECIATION ALLOWABLE TO THE ASSESSEE ON C OLD STORAGE THE TRIBUNAL IN ASSESSMENT YEAR 2004-05 OBSERVED AS UN DER :- 6. WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE ORDERS OF THE LOWER - 3 - AUTHORITIES AND THE MATERIALS AVAILABLE ON RECORD. THE ASSESSEE CLAIMED DEPRECIATION @ 25% ON COLD STORAGE BUILDING BY CONSIDERING THE SAME AS PLANT WHICH WAS ALLOWED BY THE LEARNED ASSESSING OFFICER @ 10% BY TREATING THE SAME AS BUILDING RELYING ON THE DECISION OF SUPREM E COURT IN THE CASE OF ANAND THEATERS 244 ITR 192. IN APPEAL, THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) ALLOWED THE CLAIM OF THE ASSESSEE FOLLOWING THE DECISION OF THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. SHREE GO PIKISHAN INDUSTRIES (CAL) 262 ITR 568 AND THE DECISION OF TH E ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. KANODIA COLD STORAGE 100 ITR 155 BY OBSERVING AS UNDER:- 3.2 THE APPELLANT, DURING THE COURSE OF APPELLATE PROCEEDINGS, HAS SUBMITTED THAT THE COLD STORAGE IS REQUIRED TO BE CONSTRUCTED AND MAINTAINED AS TO BE DAMP PROO F, HEAT PROOF AND PROTECTED AGAINST ENTRY OF OR DAMAGE TO T HE STORED AGRICULTURE AND OTHER PRODUCE BY PESTS, NOXIOUS INS ECTS, RATS AND OTHER RODENTS. THE SAME IS TO BE PROVIDED WITH INSULATION OF THE FLOORS, ROOFS AND DOORS AND INSUL ATION AND WATER PROOFING TREATMENT IS TO BE DONE IN A PROPER MANNER IN ACCORDANCE WITH COLD TEMPERATURE TO HE MAINTAINED B ELOW OR ABOVE FREEZING POINT. THE APPELLANT HAS. THEREFOR E SUBMITTED THAT THE STORAGE OR CHAMBER ITSELF IS AN APPARATUS AND TOOL OF THE TRADE THROUGH WHICH THE BUSINESS IS CARRIED ON AND THE INSULATION WITHOUT THE BUILDING CANNOT PROD UCE THE RESULT AND THE BUILDING WITHOUT THE INSULATION AL SO EQUALLY DISASTROUS FOR THE PURPOSE. THEREFORE, IT WAS CONT ENDED THAT THE COLD STORAGE PLANT IS DIFFERENT FROM THE OTHER NORMAL BUILDING BECAUSE WITHOUT THE COLD STORAGE PLANT IT IS NOT POSSIBLE TO CARRY ON THE BUSINESS OF COLD STORAGE. IN SUPPORT OF ITS CONTENTIONS, THE APPELLANT PLACED SEVERAL CO URT DECISIONS, SUCH AS 100 1TR 155-C1T V. KANODIA COLD STORAGE (ALL); 262ITR 568- CIT VS. SHREE GOPIKISHAN INDUSTR IES (CAL.) ETC. IT WAS FURTHER SUBMITTED BY THE APPELLANT THAT THE C1T (A) HAS DELETED THE ADDITION MADE BY THE ASSESSING OFFICER FOR A.Y. 2003-04 ON THIS COUNT. 7. THE LEARNED DEPARTMENTAL REPRESENTATIVE MERELY RELIED ON THE ORDER OF THE LEARNED ASSESSING OFFICE R. NEITHER COULD HE POINT OUT ANY SPECIFIC ERROR IN THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) NOR CO ULD HE CITE ANY CONTRARY DECISION OF HIGH COURT OR SUPREME COURT TO THAT RELIED UPON BY THE LEARNED COMMISSIONER OF INC OME TAX - 4 - (APPEALS). THEREFORE, WE CONFIRM THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) AND DISMISSED THE GROUND OF APPEAL OF THE REVENUE . 8. THE LEARNED DEPARTMENTAL REPRESENTATIVE COULD NO T SHOW ANY GOOD REASON TO NOT TO FOLLOW THE ABOVE QUOTED O RDER OF THE TRIBUNAL. HE ALSO COULD NOT BRING ANY MATERIAL ON R ECORD TO SHOW THAT THE ABOVE QUOTED ORDER OF THE TRIBUNAL WAS REV ERSED IN APPEAL BY A HIGHER AUTHORITY. FACTS BEING IDENTICAL RESPE CTFULLY FOLLOWING THE DECISION WE CONFIRM THE ORDER OF THE LEARNED CO MMISSIONER OF INCOME TAX (APPEALS) AND DISMISS THE GROUND OF APPE AL OF THE REVENUE. 9. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 20 TH DAY OF AUGUST, 2010. SD/- SD/- (BHAVNESH SAINI) ( N.S. SAINI ) JUDICIAL MEMBER A CCOUNTANT MEMBER AHMEDABAD: ON THIS 20 TH DAY OF AUGUST, 2010 COMPILED AND COMPARED BY: PATKI. - 5 - COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-XIV, AHMEDABAD. 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD DATE INITIALS 1. DRAFT DICTATED ON 17-8-2010 ----------- -------- 2. DRAFT PLACED BEFORE AUTHORITY 18-8-2010 -- ----------------- 3. DRAFT PROPOSED & PLACED 18-8-2010 -------- ----------- JM BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED 19-8-2010 ------- ------------ JM/AM BY SECOND MEMBER 5. APPROVED DRAFT COMES TO P.S 20--8-2010 -- ------------------ 6. KEPT FOR PRONOUNCEMENT ON 20-8-2010 --- ----------------- 7. FILE SENT TO THE BENCH CLERK 20-8-2010 -------------------- 8. DATE ON WHICH FILE GOES TO THE ---------------- -------------------- 9. DATE OF DISPATCH OF ORDER ---------------- ---------------------