DCIT, New Delhi V. M/s. Prime Maxi Mall Management Pvt. Ltd., New Delhi

ITA 5348/DEL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 86683 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-02-2015
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: F
• Next Hearing Date: 04-02-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 30-09-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: VIKRAM SAHAY
• Keywords: Depreciation; Revenue expenditure
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : F : NEW DELHI BEFORE SHRI R.S. SYAL, AM AND SHRI H.S. SIDHU, JM ITA NO.5348/DEL/2013 ASSESSMENT YEAR : 2009-10 DCIT, CENTRAL CIRCLE-20, NEW DELHI. VS. PRIME MAXI MALL MANAGEMENT PVT. LTD., 1002-04, ANTRIKSH BHAWAN, 22, KASTURBA GANDHI MARG, NEW DELHI. PAN: AAACP6716D (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SATYEN SETHI, ADVOCATE DEPARTMENT BY : SHRI VIKRAM SAHAY, SR. DR ORDER PER R.S. SYAL, AM: THIS APPEAL BY THE REVENUE ARISES OUT OF THE ORDER PASSED BY THE CIT(A) ON 05.08.2013IN RELATION TO THE ASSESSMENT Y EAR 2009-10. ITA NO.5348/DEL/2013 2 2. THE FIRST GROUND IS AGAINST THE DELETION OF DISA LLOWANCE OF EXCESS DEPRECIATION CLAIMED BY THE ASSESSEE ON PERIPHERALS OF COMPUTERS AMOUNTING TO RS.38,021/-. 3. BRIEFLY STATED, THE FACTS APROPOS THIS ISSUE ARE THAT THE ASSESSEE CLAIMED DEPRECIATION @ 60% ON PRINTERS, UPS, SMF BA TTERY BANK, ETC., BY PUTTING THESE ITEMS UNDER THE HEAD COMPUTER. T HE AO DID NOT ALLOW DEPRECIATION AT THE ENHANCED RATE OF 60%, BUT, REST RICTED IT TO 15%, BEING THE GENERAL RATE APPLICABLE TO PLANT AND MACHINERY . THE LD. CIT(A) ORDERED FOR THE DELETION OF ADDITION ON THIS SCORE. 4. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD, WE FIND THAT THIS ISSUE IS NO M ORE RES INTEGRA IN VIEW OF THE JUDGMENT OF THE HONBLE DELHI HIGH COURT IN A RECENT CASE OF CIT VS. BSES RAJDHANI POWER LTD . SIMILAR VIEW HAS BEEN TAKEN BY THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE DCIT VS. DATACRAFT INDIA LTD. (2010) 133 TTJ (MUM) (SB) 377 . RESPECTFULLY FOLLOWING THE ABOVE PRECEDENTS, WE APPROVE THE VIEW TAKEN BY THE LD. CI T(A) ON THIS SCORE. THIS GROUND IS NOT ALLOWED. ITA NO.5348/DEL/2013 3 5. THE ONLY OTHER GROUND IS AGAINST THE DELETION OF DISALLOWANCE OF RS.9,46,433/- MADE BY THE AO ON ACCOUNT OF MISCELL ANEOUS EXPENSES WRITTEN OFF. 6. BRIEFLY STATED, THE FACTS OF THIS ISSUE ARE THAT THE ASSESSEE WROTE OFF PRELIMINARY EXPENSES AMOUNTING TO RS.1,249/- AND DE FERRED REVENUE EXPENDITURE AMOUNTING TO RS.9,45,184/- AND CHARGED THE SAME TO THE PROFIT & LOSS ACCOUNT UNDER THE HEAD MISCELLANEOUS EXPENSES WRITTEN OFF. THE AO DISALLOWED THE SAME BY NOTING THAT TH ESE WERE NOT ALLOWABLE UNDER THE PROVISIONS OF THE ACT. THIS RE SULTED INTO A DISALLOWANCE AMOUNTING TO RS.9,46,433/-. THE LD. C IT(A) ORDERED FOR THE DELETION OF ADDITION. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. THE LD. AR CONTENDED THAT 1/3 RD OF TOTAL EXPENSES WERE ALLOWED IN THE IMMEDIATELY PRECEDING YEAR AND SIMILAR 1/3 RD IN A YEAR PRIOR TO THAT. HE SUBMITTED THAT THE REMAININ G EXPENSES CLAIMED @ 1/3 RD OF THE TOTAL EXPENSES CLAIMED AS DEDUCTION IN THE INSTANT YEAR OUGHT TO HAVE BEEN ALLOWED. IT WAS PUT FORTH THAT THE AO IN THE IMMEDIATELY ITA NO.5348/DEL/2013 4 PRECEDING TWO ASSESSMENT YEARS HAS HIMSELF ALLOWED DEDUCTION FOR SUCH 1/3 RD EACH IN TWO EARLIER YEARS, AND ONE OF THE ASSESSME NTS WAS MADE U/S 143(3) OF THE ACT. WE FIND THAT THE ASSESSMENT ORD ER DOES NOT DISCUSS ABOUT THE NATURE OF EXPENDITURE, NOR THERE IS MUCH DISCUSSION IN THE IMPUGNED ORDER ABOUT WHAT HAS BEEN STATED BY THE LD . AR BEFORE US. IF THE CONTENTION OF THE LD. AR IS CORRECT THAT THE AO ALLOWED DEDUCTION IN TWO EARLIER YEARS AT THE RATE OF 1/3 RD EACH IN EAR LIER TWO YEARS, THEN WE SEE NO REASON FOR NOT ALLOWING DEDUCTION FOR THE RE MAINING 1/3 RD IN THIS YEAR AS WELL. IN THE ABSENCE OF THE AVAILABILITY OF SUCH DETAILS ON RECORD, WE ARE HANDICAPPED TO ASCERTAIN THE VERACITY OF THI S CONTENTION ADVANCED BY THE LD. AR. UNDER THESE CIRCUMSTANCES, WE SET AS IDE THE IMPUGNED ORDER AND RESTORE THE MATTER TO THE FILE OF AO FOR ASCERTAINING THE CORRECTNESS OF THE CONTENTION ABOUT THE GRANT OF SU CH DEDUCTION AT 1/3 RD IN THE IMMEDIATELY PRECEDING TWO ASSESSMENT YEARS. IF THE CLAIM OF THE ASSESSEE IS FOUND TO BE CORRECT, THEN, DEDUCTION SH OULD BE ALLOWED FOR THE YEAR IN QUESTION ALSO FOR THE REMAINING 1/3 RD . IN CASE THE POSITION TURNS OUT TO BE OTHERWISE, THE AO IS DIRECTED TO PASS A S PEAKING AND REASONED ITA NO.5348/DEL/2013 5 ORDER AS PER LAW, AFTER ALLOWING A REASONABLE OPPOR TUNITY OF BEING HEARD TO THE ASSESSEE. 8. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED IN THE OPEN COURT ON 04.02.20 15. SD/- SD/- [H.S. SIDHU] [R.S. SYAL] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED, 04 TH FEBRUARY, 2015. DK COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.