Paramount Ltd., Baroda V. The Dy.CIT.,Circle-4, Baroda

ITA 555/AHD/2009

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 63161 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 9 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-11-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 21-11-2012
• Assessment Year: 1996-1997
• Appeal Filed On: 20-02-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D P GUPTA
• Assessee Lawyers: M K PATEL
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE SHRI, A.K.GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.555/AHD/2009 ASSESSMENT YEAR :1996-97 PARAMOUNT LIMITED PARAMOUNT COMPLEX, NR. NATUBHAICIRCLE, RACE COURSE CIRCLE (W), GOTRI ROAD, BARODA -39007 [ PAN NO.AABCP 6509P ] V/S . DY. COMMISSIONER OF INCOME TAX, CIRCLE- 4(1), BARODA / APPELLANT .. / RESPONDENT) /BY APPELLANT SHRI M.K. PATEL, AR /BY RESPONDENT SHRI D.P.GUPTA, CIT-DR /DATE OF HEARING 21-11-2012 /DATE OF PRONOUNCEMENT 23-11-2012 / // / O R D E R PER KUL BHARAT, JUDICIAL MEMBER:- THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-III, BARODA ( CIT(A) FOR SHORT) DATED 16-01-2009 FOR THE ASSESSMENT YEAR (AY) 1996-97. 2. THE ASSESSEE HAS RAISED ADDITIONAL GROUND, WHICH READS AS UNDER:- THE ORDER PASSED BY THE LEARNED CIT(A) IN APPEAL N O. CAB/III-43/08- 09 DATED 16.01.2009 MAY KINDLY BE HELD TO BE INFRUC TUOUS AND VOID AB ITA NO.555/AHD/2009 A.Y.1996-97 PARAMOUND LTD. V. DCIT CIR-4(1), BRD PAGE 2 INITIO IN VIEW OF ORDER OF ITAT IN MA NO.249/AHD/20 09 DATED 17.09.2010(ARISING OUT OF ITA NO.859/AHD/2000) WHER EBY THE ORIGINAL ORDER OF ITAT SETTING ASIDE THE MATTER TO CIT(A) IS CANCELLED AND THE MA IS ALLOWED. 3. AT THE OUT SET, LD. COUNSEL FOR THE ASSESSEE POI NTED OUT THAT MA NO. 249/AHD/2009 WAS FILED BY THE ASSESSEE IN ITA NO.85 9/AHD/2000 PERTAINING TO AY 1996-97 AND THE HONBLE CO-ORDINATE BENCH HAS AL LOWED THE MA AND CLAIM OF THE ASSESSEE, WHEREBY THE ORIGINAL ORDER I N ITA NO.859/AHD/2000 SETTING ASIDE THE MATTER TO THE FILE OF LD. CIT(A) IS CANCELLED. SINCE THE MATTER WAS RESTORED BACK TO THE FILE OF LD. CIT(A) BY THE HONBLE CO-ORDINATE BENCH IN ITA NO. 859/AHD/2000 FOR AY 1996-97 AND THE ORIG INAL ORDER HAS NOW BEEN RECTIFIED VIDE ORDER DATED 17-09-2010 PASSED IN MA NO. 249/AHD/2009, THEREFORE, THE APPELLATE ORDER UNDER CHALLENGED DOE S NOT SURVIVE. 4. LD. CIT-DR DID NOT CONTROVERT THIS FACT, HOWEVER , HE SUBMITTED THAT AN APPEAL AGAINST THE ORDER DATED 17-09-2010 PASSED IN MA NO. 249/AHD/2009 HAS BEEN CHALLENGED BEFORE THE HONBLE JURISDICTION AL HIGH COURT AND THE HONBLE JURISDICTIONAL HIGH COURT IS PLEASED TO ISS UE NOTICE.. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT THE HONBLE CO-OR DINATE BENCH IN MA NO. 249/AHD/2009 HAS HELD AS UNDER:- IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, WE A RE OF THE VIEW THAT IN ASSESSEES OWN CASE (SUPRA) IN EARLIER YEAR THE TRI BUNAL HAS ALLOWED THE CLAIM OF ASSESSEE IN RESPECT OF TRANSACTION OF SALE AND LEASE BACK AS GENUINE AND NOT SHAM AND CLAIM OF DEPRECIATION, INTEREST AND FINANCE CHARGES WERE ALLOWED. THE ISSUE BEING COVERED IN FA VOUR OF THE ASSESSEE, WE ALLOW THE CLAIM OF THE ASSESSEE IN THI S YEAR ALSO AND THE MA OF ASSESSEE IS ALLOWED ACCORDINGLY. SINCE THE ORIGINAL ORDER PASSED IN ITA NO.859/AHD/2 000 HAS BEEN RECTIFIED VIDE ORDER DATED 17-09-2010 PASSED IN MA NO. 249/AH D/2009 BY ALLOWING THE ITA NO.555/AHD/2009 A.Y.1996-97 PARAMOUND LTD. V. DCIT CIR-4(1), BRD PAGE 3 CLAIM OF THE ASSESSEE. THIS ORDER OF LD. CIT(A) UND ER CHALLENGE BECOMES INFRUCTUOUS. MOREOVER, THE ISSUE WHETHER THE ASSESS EE IS ENTITLED FOR THE CLAIM IS PENDING ADJUDICATION BEFORE THE JURISDICTIONAL H IGH COURT IN TAX APPEAL NO. 389 OF 2011. HENCE, THIS ADDITIONAL GROUND OF ASSES SEE IS ALLOWED. 6. IN THE RESULT, APPEAL FILED BY ASSESSEE IS ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. SD/- SD/- (A.K.GARODIA) (KUL BHARAT) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, *DKP !' #- 23/11/2012 )*+ , --. --. --. --. /. /. /. /. / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. '+'-1 2 / CONCERNED CIT 4. 2- / CIT (A) 5. .56 ---1, -1 , )*+ / DR, ITAT, AHMEDABAD 6. 69: ;< / GUARD FILE. BY ORDER/ , /TRUE COPY/ =/) '> -1 , )*+ , STRENGTHEN PREPARATION & DELIVERY O F ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 21/11 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE NO 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 21/11 4) DATE OF CORRECTION 21/11 5) DATE OF FURTHER CORRECTION 6) DATE OF INITIAL SIGN BY MEMBERS 22/11 7) ORDER UPLOADED ON 23/11 8) ORIGINAL DICTATION PAD-PART HAS BEEN ENCLOSED IN THE FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 23/11