ACIT, CHENNAI V. M/s. Concord Agencies, CHENNAI

ITA 53/CHNY/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58146 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 10-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: V S JAYAKUMAR
• Keywords: Depreciation
• Section: 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER I.T.A. NO. 53/MDS/2012 [A.Y. 2003-04] CO NO. 12/MDS/2012 [A/O I.T.A. NO. 53/MDS/2012 [A.Y. 2003-04] ASSESSEE BY : SHRI V.S. JAYAKUMAR, ADVOC ATE DEPARTMENT BY : SHRI M.N. MOORTHY N AIK, JCIT, DR THE A.C.I.T. CIRCLE XV CHENNAI (APPELLANT) VS. M/S CONCORD AGENCIES OLD NO. 3, NEW NO. 07 DR. RADHAKRISHNAN SALAI MYLAPORE, CHENNAI 600 004. PAN NO. AAAFC 0578 P (RESPONDENT) M/S CONCORD AGENCIES VS. TH E A.C.I.T OLD NO. 3, NEW NO. 07 CIRCLE XV DR. RADHAKRISHNAN SALAI CHENNAI MYLAPORE, CHENNAI 600 004. PAN NO. AAAFC 0578 P 2 DATE OF HEARING : 15.03.2012 DATE OF PRONOUNCEMENT : 15.03.2012 O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER : ITA NO. 53/MDS/12 IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX(A)-XII, CHE NNAI IN APPEAL NO. 274/10-11 DATED 19.10.2011 FOR ASSESSMENT YEAR 2003-04. CO NO. 12/MDS/12 IS FILED BY ASSESSEE IN REVENUES AP PEAL IN ITA NO. 53/MDS/2012 AGAINST THE ORDER OF COMMISSIONER OF I NCOME TAX(A)- XII, CHENNAI IN APPEAL NO. 274/10-11 DATED 19.10.20 11 FOR ASSESSMENT YEAR 2003-04. 2. SHRI M.N. MOORTHY NAIK, CIT , D.R. REPRESENTED ON BEHALF OF THE REVENUE AND SHRI V.S. JAYAKUMAR, ADVOCATE, REPRESE NTED ON BEHALF OF THE ASSESSEE. 3 3. IT WAS SUBMITTED BY THE LD. DR THAT IN THE REVE NUES APPEAL, THE REVENUE HAS CHALLENGED THE ACTION OF THE LD. CIT(A) IN DELETING THE DISALLOWANCE ON ACCOUNT OF RESTRICTING THE DEPRECIA TION TO 7.6% AS AGAINST 80% ON WIND ENERGY GENERATOR. IT WAS ALSO THE SUBMISSION THAT THE LD. CIT(A) FOLLOWED THE DECISION OF THE CO ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF M/S K.K.S.K. LEATHER P ROCESSORS P. LTD IN ITA NO. 826 & 827/MDS/2009 DATED 20.11.2009 FOR ASS ESSMENT YEAR 2003-04 AND THE SAID DECISION OF THE COORDINATE BEN CH HAS NOT BECOME FINAL AND THE APPEAL HAD BEEN PREFERRED BEFO RE THE HIGH COURT. IT WAS THE SUBMISSION THAT THE ORDER OF THE LD. CIT(A) WAS LIABLE TO BE REVERSED. 4. IN REPLY, THE LD. A.R. SUBMITTED THAT THE ISSUE WAS COVERED BY THE DECISION OF THE COORDINATE BENCH OF THIS TRIBUN AL IN THE CASE OF M/S K.K.S.K. LEATHER PROCESSORS P. LTD REPORTED IN [201 0] 126 ITD 215. IT WAS THE SUBMISSION THAT THE DECISION OF THE COORDIN ATE BENCH OF THIS TRIBUNAL WAS BINDING. IT WAS THE FURTHER SUBMISSIO N THAT IN THE CROSS OBJECTION, THE ASSESSEE HAS CHALLENGED THE REOPENIN G OF THE ASSESSMENT. IT WAS THE SUBMISSION THAT REOPENING WA S DONE ONLY FOR 4 THE PURPOSES OF DENYING THE ASSESSEE DEPRECIATION A T 80% CLAIM AND REDUCE THE SAME TO 7.6%. IT WAS THE SUBMISSION THA T THE ORIGINAL ASSESSMENT ORDER HAD BEEN PASSED U/S 143(3) OF THE ACT ON 28.3.2006 AND NOTICE U/S 148 HAD BEEN ISSUED AND SE RVED ON THE ASSESSEE ON 31.3.2010 FOR THIS PURPOSE. IT WAS THE SUBMISSION THAT NO FRESH MATERIAL WAS AVAILABLE FOR THE PURPOSE OF REOPENING. IT WAS THE SUBMISSION THAT IN VIEW OF THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF KELVINATOR OF INDIA LTD REPORT ED IN 320 ITR 561, THE REOPENING WAS LIABLE TO BE HELD BAD IN LAW. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AS IT IS NOTICED THAT THE ISSUE ON MERITS IS SQUARELY COVERED BY THE DECI SION OF THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF M/S K.K.S.K. LEATHER PROCESSORS P. LTD. [SUPRA] AND IT IS NOTIC ED THAT THE LD. CIT(A) HAS ONLY FOLLOWED THE DECISION OF THE COORDINATE BE NCH OF THIS TRIBUNAL BY FOLLOWING THE PRINCIPLES OF JUDICIAL DISCIPLINE, WE ARE OF THE VIEW THAT NO ERROR IN THE FINDING OF THE LD. CIT(A) HAS BEEN POINTED OUT WHICH CALLS FOR INTERFERENCE. IN THE CIRCUMSTANCES, THE F INDING OF THE LD. CIT(A) ON MERITS STAND CONFIRMED. 5 7. AS WE HAVE DISMISSED THE APPEAL OF THE REVENUE A ND UPHELD THE ORDER OF THE LD. CIT(A) IN RESPECT OF MERITS, W E ARE NOT GOING INTO THE ISSUE OF REOPENING AS THE ISSUE WOULD ONLY BE OF ACADEMIC NATURE. IN THE CIRCUMSTANCES, THE CROSS OBJECTION IS DISMISSED. 8. IN THE RESULT, THE APPEAL OF THE REVENUE AS WELL AS THE CROSS OBJECTION FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 15 TH MARCH, 2012. SD/- SD/- (N.S. SAINI) (GEORGE MATHA N) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI, DATED THE 15 TH MARCH, 2012. VL COPY TO: (1) APPELLANT (2) RESPONDENT (3) CIT(A), CHENNAI (4) CIT, CHENNAI (5) D.R. (6) GUARD FILE