ACIT 11(1), MUMBAI V. SATISH B KAUSHIK, MUMBAI

ITA 5601/MUM/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3987 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 5 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 27-05-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 05-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SANJIV M SHAH
• Keywords: Deemed owner of house property; Depreciation; Opportunity of being heard; Principle of natural justice; Rule of consistency; Retrospective amendment; Bad and doubtful debts; Tax effect; Revenue expenditure
• Section: 143(3)

Judgement Text

E BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO. 4832 /MUM/2012 ( / ASSESSMENT YEAR : 2008-09) MR. SATISH B. KAUSHIK, 803-04, A WING, RAJ CLASSIQUE CHS LTD YARI ROAD, VERSOVA, ANDHERI (WEST), MUMBAI. / V. THE ASST. COMMISSIONER OF INCOME TAX 11(1), AAYAKAR BHAVAN, MUMBAI. ./ PAN : AAMPK1640E ( / APPELLANT ) .. ( / RESPONDENT ) ./ I.T.A. NO. 5601 /MUM/2012 ( / ASSESSMENT YEAR : 2008-09) THE ASST. COMMISSIONER OF INCOME TAX 11(1), AAYAKAR BHAVAN, MUMBAI. / V. MR. SATISH B. KAUSHIK, 803-04, A WING, RAJ CLASSIQUE CHS LTD YARI ROAD, VERSOVA, ANDHERI (WEST), MUMBAI. ./ PAN : AAMPK1640E ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY SHRI SANJIV M. SHAH REVENUE BY : SHRI RAKESH RANJAN (D.R.) / DATE OF HEARING : 08-12-2015 / DATE OF PRONOUNCEMENT : 25-02-2016 ITA 4832 & 5601/MUM/2012 2 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER THESE CROSS APPEALS BY THE ASSESSEE AND THE REVENU E ARE DIRECTED AGAINST THE ORDERS OF THE LEARNED COMMISSIONER OF I NCOME TAX (APPEALS)- 3, MUMBAI (HEREINAFTER CALLED THE CIT(A)) DATED 18-0 6-2012 PERTAINING TO THE ASSESSMENT YEAR 2008-09. THESE CROSS APPEALS ARE HE ARD TOGETHER AND DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CO NVENIENCE AND BREVITY. 2. THE GROUND RAISED BY THE ASSESSEE IN THE MEMO OF APPEAL FILED WITH THE TRIBUNAL READS AS UNDER:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) [HEREI NAFTER REFERRED TO AS LD. CIT(A)] ERRED IN CONFIRMING THE ADDITION OF R S 4,38,395/- ON ACCOUNT OF BAD-DEBTS WRITTEN OFF IN CASE OF PRACHI NA RMADA FILMS PVT LTD. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LD. CIT(A) ERRED IN UPHOLDING THE DISALLOWANCE IN RESPE CT OF ADVANCE RECEIVED FROM TIPS INDUSTRIES OF RS 25,00,000/-. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LD. CIT(A) ERRED IN UPHOLDING THE DISALLOWANCE IN RESPEC T OF DEPRECIATION CLAIMED OF RS 2,12,184/-. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LD. CIT(A) ERRED IN UPHOLDING THE ACTION OF LD AO IN TR EATING 3 PROPERTIES AS DEEMED TO BE LET OUT. 5. THAT THE ORDERS OF BOTH LD COMMISSIONER OF INCOME T AX (APPEALS) AND LD ASSESSING OFFICER ARE BAD IN LAW A ND ON FACTS. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E CARRIES ON THE BUSINESS ACTIVITY OF ACTING AND DIRECTION OF FEATURE FILMS. DURING THE ASSESSMENT ITA 4832 & 5601/MUM/2012 3 PROCEEDINGS CARRIED ON BY THE REVENUE U/S 143(3) RE AD WITH SECTION 143(2) OF THE ACT, THE LEARNED ASSESSING OFFICER(HEREINAFTER CALLED THE AO) OBSERVED THAT ASSESSEE HAS SHOWN AN AMOUNT OF RS. 4,38,395/- AS AMOUNT WRITTEN OFF UNDER THE HEAD DIRECT AND INDIRECT EXPENSES. THE ASSESSEE WAS ASKED TO EXPLAIN AS TO WHY THE CLAIM OF BAD DEBTS WHICH IS I N THE NATURE OF INVESTMENT SHOULD NOT BE DISALLOWED AND MORE-OVER THE ASSESSEE IS FOLLOWING CASH BASIS OF ACCOUNTING AND BAD DEBT PER-SE SHALL NOT ARISE. THE ASSESSEE SUBMITTED THAT ASSESSEE HAS ENTERED IN TO A JOINT VENTURE DISTRIBUTION BUSINESS WITH PRACHI NARMADA FILMS PVT . LTD.(HEREINAFTER CALLED THE PNF) IN SEPTEMBER, 2001 FOR THE DISTRIBUTION OF THE FEATURE FILM NAYAK FOR WHICH AN AMOUNT OF RS. 10 LAKHS WAS ADVANCED TO THE PNF. THIS WAS ENTIRELY IN THE NATURE OF A BUSINESS TRANSACTION WH EREIN MONEY WAS ADVANCED FOR A JOINT VENTURE BUSINESS WITH AN INTENTION TO E ARN PROFITS OUT OF IT. THE INTENTION WAS NEVER TO EARN ANY FIXED RETURN FROM I T IN THE NATURE OF INVESTMENT AS COMMONLY UNDERSTOOD. OUT OF THE AMOU NT OF RS. 10 LAKHS ADVANCED, RS. 4,38,395/- WAS STILL OUTSTANDING FOR MORE THAN SIX YEARS AND WAS NOT RECOVERABLE AS THE FILM DID NOT DO GOOD BUS INESS. THE SUBMISSION OF THE ASSESSEE WAS REJECTED BY THE AO AS THE PROVISIO NS OF SECTION 36(1)(VII) OF THE INCOME TAX ACT, 1961(HEREINAFTER CALLED THE AC T) READ WITH SECTION 36(2) OF THE ACT WERE NOT FULFILLED. THE AO HELD THAT AS PER SECTION 36(2) OF THE ACT WHICH GOVERNS SECTION 36(1)(VII) OF THE ACT , A DEB T IS TO BE ALLOWED AS BAD-DEBT IF IT IS TAKEN INTO ACCOUNT IN COMPUTING THE INCOME OF THE ASSESSEE OF ANY PREVIOUS YEAR. THE AO HELD THAT IF THE SAID AMOUNT HAS BEEN OFFERED TO TAX IN ANY PREVIOUS YEAR THEN IT CAN BE WRITTEN OFF AS BAD DEBTS. THE AMOUNT WRITTEN OFF AS IRRECOVERABLE IS NOT DEBTORS OF THE ASSESSEE AS THE ASSESSEE HAS GIVEN THE ADVANCES. THE AMOUNT WHICH HAVE BEEN WRITTEN O FF AS IRRECOVERABLE ARE NOT THE DEBTORS OF THE SAID ASSESSEE BUT THE ASSESS EE HAD GIVEN ADVANCES TO THE PNF AND THE ASSESSEE HIMSELF STATED THAT AN ADV ANCE OF RS. 10 LAKHS WAS GIVEN TO THE PNF OUT OF WHICH RS. 4,38,385/- WAS OU TSTANDING SINCE 6 YEARS THEREFORE THE SAID AMOUNT HAS NEVER BEEN TAKEN INTO ACCOUNT WHILE ITA 4832 & 5601/MUM/2012 4 COMPUTING THE INCOME OF THE ASSESSEE OF ANY PREVIOU S YEAR. THE BALANCE SHEET AS AT 31ST MARCH, 2007 WHICH REFLECTED THE NAME OF THE PNF UNDER THE HEAD INVESTMENT. THE A.O. OBSERVED THAT THE INVESTMEN T AS APPEARING IN THE BALANCE SHEET AS AT 31-3-2007 OF THE ASSESSEE ARE I N THE NATURE OF CAPITAL ADVANCE AND NON RECOVERY OF THE SAID INVESTMENT CAN BE CAPITAL LOSS BUT CANNOT BE ALLOWED AS REVENUE LOSS, HENCE, THE ENTRY IS PASSED BY THE ASSESSEE TO REDUCE THE BURDEN OF TAX AND ACCORDINGLY THE A.O . DISALLOWED THE SAME AND ADDED THE SAME AMOUNT I.E. RS.4,38,385/- TO THE TOT AL INCOME OF THE ASSESSEE VIDE ASSESSMENT ORDERS DATED 07-12-2010 PASSED BY T HE AO U/S 143(3) OF THE ACT. 4.AGGRIEVED BY THE ASSESSMENT ORDERS DATED 07-12-20 10 PASSED BY THE AO U/S 143(3) OF THE ACT, THE ASSESSEE PREFERRED AN AP PEAL BEFORE THE CIT(A). 5. BEFORE THE CIT(A) , THE ASSESSEE SUBMITTED THAT ASSESSEE HAS MADE AN ARRANGEMENTS WITH THE PNF IN SEPTEMBER 2001 FOR ACQ UIRING 25% SHARES IN DISTRIBUTION OF FEATURE FILM NAYAK FOR WHICH AN A DVANCE OF RS. 10 LAKHS WAS GIVEN TO THE PNF. THE TOTAL COST OF THE FILM WAS RS . 36,53,525/- WHEREAS THE BUSINESS DONE BY THE FILM WAS RS. 14,07,090/-. THU S A LOSS OF RS. 22,26,020/- WAS INCURRED IN WHICH ASSESSEES SHARE WAS AT RS. 5,61,605/-. HENCE , AFTER PROVIDING FOR THE LOSS SUFFERED BY T HE ASSESSEE , THE AMOUNT OF RS. 4,38,395/- WAS RECEIVABLE FROM THE PNF . SINCE DESPITE SEVERAL REMINDERS TO THE PNF, THE AMOUNT WAS NOT RECEIVED FROM THE PN F AND WHICH WAS WRITTEN OFF BY THE ASSESSEE AS BAD DEBTS IN THE IMPUGNED AS SESSMENT YEAR UNDER APPEAL. HOWEVER, INADVERTENTLY, THE ADVANCE GIVEN W AS SHOWN IN BALANCE SHEET AS INVESTMENT INSTEAD OF LOANS AND ADVANCE S. THE ASSESSEE SUBMITTED BEFORE THE CIT(A) THAT THE ADVANCE GIVEN IS IRRECOV ERABLE ADVANCE WHICH HAS BEEN GIVEN IN THE ORDINARY COURSE OF BUSINESS BY BU YING SHARE OF DISTRIBUTION RIGHTS, HENCE THE SAME IS ALLOWABLE AS DEDUCTION. ITA 4832 & 5601/MUM/2012 5 THE CIT(A) AFTER PERUSING THE MATERIAL ON RECORD RE JECTED THE CONTENTIONS OF THE ASSESSEE. THE CIT(A) AFTER GOING THROUGH THE A GREEMENT AND RECORD HELD THAT THE ASSESSEE HAS ONLY MADE INVESTMENT OF RS. 1 0 LAKHS IN NAYAK FILM. THE AMOUNT OF RS. 10,00,000/- WAS THEREAFTER SHOWN AS INVESTMENT IN BALANCE SHEET AND THE AMOUNT IN QUESTION IS INVESTM ENT IN NATURE AND NOT IN THE NATURE OF ADVANCE OR LOANS. THIS AMOUNT WAS NEV ER TAKEN IN TO ACCOUNT WHILE COMPUTING THE INCOME OF THE ASSESSEE. THE CIT (A) HELD THAT THE LOSS SUFFERED IN THE BUSINESS AT RS. 5.61 LAKHS HAD OCCU RRED IN THE ASSESSMENT YEAR 2002-03 WHICH MIGHT HAVE BEEN CLAIMED AND ALLO WED IN THAT YEAR I.E. THE ASSESSMENT YEAR 2002-03. THEREFORE, THE LOSS OF THE ASSESSMENT YEAR 2002-03 CANNOT BE ALLOWED DURING THE ASSESSMENT YEAR 2008-0 9. THE ASSESSEE HAS NOT BROUGHT ON RECORD , THE STEPS TAKEN TO RECOVER THE SO CALLED ADVANCE. FURTHER, NO EVIDENCE HAS BEEN BROUGHT ON RECORD TO ESTABLISH THAT THESE ARE BUSINESS LOSS. THE PART OF INVESTMENT IS IN CAPITAL FIELD, H ENCE, NOT ALLOWABLE AS BAD DEBTS AS HELD BY THE CIT(A). THE CIT(A) ALSO NOTIC ED THAT THE ASSESSEE HAD FAILED TO FURNISH DETAILS TO SHOW THAT AS TO HOW LO SS HAD OCCURRED AND ACCOUNTED FOR IN BOOKS OF ACCOUNTS. IN VIEW OF ALL THESE FACTS, THE CIT(A) UPHELD THE FINDINGS OF THE AO VIDE ORDERS DATED 18- 06-2012. 6.AGGRIEVED BY THE ORDERS DATED 18-06-2012 PASSED B Y THE CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 7. THE LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT T HE ADVANCE OF RS.10 LACS WAS PAID TO THE PNF IN 2001 FOR BUYING THE FIL M NAYAK. THE ASSESSEE WAS HAVING 25% SHARE IN THE FILM NAYAK . THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LOSS INCURRED IN THIS FILM WAS R S. 5,61,605/- WHICH WAS CLAIMED BY THE ASSESSEE AND ALLOWED BY THE REVENUE IN THE ASSESSMENT YEAR 2002-03. THE LD. COUNSEL DREW OUR ATTENTION TO THE BALANCE SHEET AND P&L ACCOUNT FOR FINANCIAL YEAR 2001-02 ALONG WITH RETUR N OF INCOME FILED WITH THE REVENUE FOR THE ASSESSMENT YEAR 2002-03 WHEREBY THE DISTRIBUTION BUSINESS ITA 4832 & 5601/MUM/2012 6 LOSS OF RS. 5,61,605/- WAS CLAIMED BY THE ASSESSEE IN THE RETURN OF INCOME FILED WITH THE REVENUE. THE LD. COUNSEL ALSO DREW OUR ATTENTION TO THE AGREEMENT ENTERED INTO WITH THE PNF DATED 4 TH SEPTEMBER, 2001 WHICH IS PLACED AT PAPER BOOK PAGE 83 & 84.THE LD. COUNSEL A LSO DREW OUR ATTENTION TO THE VARIOUS LETTERS AND REMINDERS SENT BY THE ASSES SEE TO THE SAID PNF FOR REFUND OF THE AMOUNT RS. 4,38,395/- WHICH IS PLACED AT PAPER BOOK PAGE NOS. 85 TO 89. THE LD. COUNSEL ALSO DREW OUR ATTENTION TO THE BALANCE SHEET FOR THE YEARS 2002-03, 2003-04, 2004-05, 2005-06, 2006-07 A ND 2007-08, COPY OF WHICH ARE PLACED IN THE FILE TO SUBSTANTIATE THAT T HE ADVANCE OF RS. 10 LACS WAS SHOWN IN THE BOOKS OF ACCOUNT ALBEIT UNDER THE HEAD INVESTMENT. THE AMOUNT OF RS. 5,61,605/- WAS CLAIMED AS LOSS DURING THE ASSESSMENT YEAR 2002-03 AND BALANCE AMOUNT OF RS. 4,38,395/- WAS CA RRIED FORWARD AS RECOVERABLE FROM THE PNF IN THE BOOKS OF ACCOUNT FO R THE ASSESSMENT YEAR 2002-03, 2003-04, 2004-05, 2005-06 AND 2006-07 AND FINALLY WRITTEN OFF IN THE ASSESSMENT YEAR 2008-09. THE LD. COUNSEL SUBMI TTED THAT ADVANCE GIVEN TO PNF IS AN IRRECOVERABLE ADVANCE WHICH HAD BEEN G IVEN IN THE ORDINARY COURSE OF BUSINESS OF BUYING SHARE OF DISTRIBUTION RIGHTS OF A MOVIE AND IT SHOULD BE ALLOWED AS DEDUCTION. THE AMOUNT ADVANCED TO M/S PNF WAS DULY DECLARED AND DISCLOSED TO THE REVENUE IN THE RETURN OF INCOME FILED FOR THE ASSESSMENT 2002-03. HE SUBMITTED THAT THE CASE OF T HE ASSESSEE WAS SELECTED FOR SCRUTINY FOR THE ASSESSMENT YEAR 2006-07 WHEREB Y THIS INVESTMENT WAS REFLECTED IN THE BALANCE SHEET AND THE REVENUE HAS ASSESSED THE SAME U/S 143(3) OF THE ACT VIDE ORDERS DATED 15-12-2008. TH E LD. COUNSEL RELIED ON THE DECISION OF HONBLE ANDHRA PRADESH HIGH COURT IN TH E CASE OF P. SATYANARAYANA V. CIT (1979) 116 ITR 803 (AP) AND HO NBLE SUPREME COURT DECISION IN THE CASE OF B.D.BHARUCHA V. CIT (1967) 65 ITR 403(SC) AND SUBMITTED THAT THE LOSS IS ALLOWABLE AS BAD-DEBT BE ING BUSINESS LOSS. 8. THE LD. D.R., ON THE OTHER HAND, RELIED ON THE ORDERS OF AUTHORITIES BELOW. ITA 4832 & 5601/MUM/2012 7 9. WE HAVE CONSIDERED THE RIVAL CONTENTION AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD INCLUDING CASE LAWS RELIED UPON BY THE RIVAL PARTIES. WE HAVE OBSERVED THAT THE ASSESSEE IS FILM ACTOR AND D IRECTOR OF FEATURE FILMS. THE ASSESSEE HAS MADE INVESTMENT WITH PNF OF RS. 10 LAKHS IN THE YEAR 2001 WHEREBY THE ASSESSEE HAD 25% SHARE IN FEATURE FILM NAYAK IN THE TERRITORY OF CENTRAL INDIA. THE ASSESSEE WAS ENTITLED FOR 25% O F SHARE IN THIS VENTURE. THE ASSESSEE HAS GOT SHARE OF LOSS OF RS. 5,61,605/ - WHICH WAS OFFERED FOR TAXATION IN THE ASSESSMENT YEAR 2002-03 AND THEREAF TER AS PER THE FACTS EMANATING FROM THE RECORDS THE BALANCE AMOUNT OF RS . 4,38,395/- WAS STILL RECOVERABLE FROM M/S PNF WHICH WAS ADVANCED IN THE YEAR 2001. THE INCOME FROM THIS FILM NAYAK WAS ALSO OFFERED FOR TAXATIO N IN THE ASSESSMENT YEAR 2002-03 ALTHOUGH IT WAS LOSS AND IT IS WELL ESTABLI SHED AND SETTLED PROPOSITION THAT THE INCOME INCLUDE LOSSES AND HENCE NEGATIVE I NCOME I.E. LOSS IS ALSO AN INCOME WHICH WAS OFFERED FOR TAXATION BY THE ASSESS EE IN THE ASSESSMENT YEAR 2002-03. THE ASSESSEE HAS MADE EFFORTS TO RECOVER THE AMOUNT BUT COULD NOT RECOVER THE SAME FOR WHICH NECESSARY EVIDENCES ARE PLACED ON RECORD BY THE ASSESSEE IN THE PAPER BOOK FILED WITH THE TRIBUNAL. THIS AMOUNT HAS BEEN CONSIDERED TO BE BAD DEBT BY THE ASSESSEE AND HAS B EEN WRITTEN OFF IN THE BOOKS OF ACCOUNT IN THE CURRENT ASSESSMENT YEAR UND ER APPEAL. IN THE OPINION OF THE ASSESSEE, THE SAID AMOUNT HAS BECOME IRRECOVERABLE AND HAS BEEN WRITTEN OFF IN THE BOOKS OF ACCOUNTS MAINTAINE D BY THE ASSESSEE. IN OUR CONSIDERED VIEW , THE ASSESSEE HAS FULLY SATISFIED THE CONDITIONS LAID DOWN IN SECTION 36(1)(VII) OF THE ACT READ WITH SECTION 3 6(2) OF THE ACT AND THE SAID AMOUNT OF RS. 4,38,395/- WRITTEN OFF BY THE ASSESSE E AS IRREVOCABLE AS BAD DEBT IS ALLOWABLE AS REVENUE EXPENDITURE. HENCE, T HE ADDITION OF RS. 4,38,395/- MADE BY THE A.O. AND AS SUSTAINED BY THE CIT(A) IS HEREBY ORDERED TO BE DELETED. WE ORDER ACCORDINGLY. 10. COMING TO GROUND NO. 2, FROM THE PERUSAL OF THE BALANCE SHEET OF THE ASSESSEE, THE A.O. OBSERVED THAT THE ASSESSEE HAS R ECEIVED AN ADVANCE OF RS. ITA 4832 & 5601/MUM/2012 8 25 LACS WHICH IS REFLECTED IN THE BALANCE SHEET UND ER THE HEAD CURRENT LIABILITIES AND PROVISIONS WHICH IS IN THE NATURE OF ADVANCE RECEIVED FROM TIPS INDUSTRIES LIMITED. THE ASSESSEE WAS ASKED TO EXPLAIN AS TO WHY ADVANCE RECEIVED FROM TIPS INDUSTRIES LIMITED SHOUL D NOT BE TREATED AS INCOME AS ASSESSEE IS FOLLOWING CASH METHOD OF ACCO UNTING. THE ASSESSEE EXPLAINED THAT A SUM OF RS. 25 LACS WAS RECEIVED DU RING THE YEAR FROM TIPS INDUSTRIES LTD. FOR ACCEPTING THE ASSIGNMENT TO WOR K AS DIRECTOR FOR THEIR TWO FORTHCOMING FILMS. AS PER THE LETTER FROM THE COMP ANY TIPS INDUSTRIES, IT WAS SPECIFICALLY MENTIONED AS ADVANCE ON SIGNING OF THE LETTER AND ACCEPTING THE ASSIGNMENT AND NOT TOWARDS REMUNERATION AND THE SAI D ADVANCE IS TO BE ADJUSTED AGAINST THE REMUNERATION PAYABLE TO THE AS SESSEE ONLY ON THE COMMENCEMENT OF THE FIRST FILM AND IN THE EVENT OF NOT STARTING THE FIRST FILM, THE ASSESSEE IS REQUIRED TO REFUND THE SAID ADVANCE FORTHWITH TO THE COMPANY. THE A.O. OBSERVED THAT NO TDS HAS BEEN DEDUCTED BY THE TIPS INDUSTRIES LTD. THE ASSESSEE SUBMITTED THAT NO FILM HAS COMMENCED A ND THE TIPS INDUSTRIES LTD. IS DEMANDING REFUND OF THE ADVANCE PAID TO THE ASSESSEE. THIS TRANSACTION IS PURELY IN THE NATURE OF LOAN AND NOT TOWARDS REMUNERATION AND THIS AMOUNT IS NOT INCLUDED IN THE INCOME OF THE AS SESSEE. THE A.O. REJECTED THE CONTENTIONS OF THE ASSESSEE AND HELD THAT THE A SSESSEE IS FOLLOWING CASH SYSTEM OF ACCOUNTING AND ANY INCOME BECOMES ASSESSA BLE ONLY WHEN IT IS RECEIVED AND THUS ADVANCE RECEIVED IS ALSO A RECEIP T IN THE NATURE OF INCOME IRRESPECTIVE OF THE FACT THAT WHEN AND HOW SERVICES ARE GOING TO BE PERFORMED. THE AO HELD THAT AS PER THE LETTER BY TIPS INDUSTRI ES LTD. VIDE CLAUSE 3, IT IS STATED THAT THE SAID ADVANCE IS NOT TOWARDS REMUNER ATION BUT ONLY FOR ACCEPTING THE DIRECTORIAL ASSIGNMENT AND THE SAID A MOUNT IS IN THE NATURE OF SIGNING AMOUNT WHICH HAS TO BE BROUGHT TO TAX AS TH E ASSESSEE IS FOLLOWING CASH SYSTEM OF ACCOUNTING AND ACCORDINGLY THE A.O. ADDED THE SAID AMOUNT OF RS. 25,00,000/- TO THE TOTAL INCOME OF THE ASSESSEE VIDE ASSESSMENT ORDERS DATED 07-12-2010 PASSED BY THE AO U/S 143(3) OF THE ACT. ITA 4832 & 5601/MUM/2012 9 11. AGGRIEVED BY THE ORDERS DATED 07-12-2010 PASSED BY THE AO U/S 143(3) OF THE ACT , THE ASSESSEE FILED FIRST APPEAL WITH THE CIT(A). 12. BEFORE THE CIT(A) , THE ASSESSEE SUBMITTED THAT THE ADVANCE RECEIVED IS IN THE NATURE OF REFUNDABLE DEPOSIT/EARNEST MONEY AND TO SHOW THE COMMITMENT TO THE DIRECTOR THAT THE PRODUCER WILL NOT GO BACK IF VIABLE PROJECT IS PUT IN PLACE. THE SAID ADVANCE WAS TO BE REFUNDED IF NO N EW FILM IS STARTED AND THEN IT WAS TO BE ADJUSTED AGAINST REMUNERATION OF FILM. THE CURRENT STATUS IS THAT NONE OF THE FILM HAS BEEN STARTED AND SUCH DEPOSIT DOES NOT GET CHARACTER OF INCOME EVEN UNDER CASH BASIS OF ACCOUNTING AND HENC E INCOME IS NOT ASSESSABLE TO TAX. THE CIT(A) AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE REJECTED THE CLAIM OF THE ASSESSEE AND HELD THAT SINCE THE ASSESSEE I S FOLLOWING CASH SYSTEM OF ACCOUNTING, THE PRINCIPLE OF CASH SYSTEM OF ACCOUNT ING IS THAT THE REVENUE IS RECOGNIZED ON THE BASIS OF CASH RECEIPTS AND EARNED ONLY WHEN CASH IS RECEIVED IRRESPECTIVE OF FACT WHEN AND HOW THE SERV ICES WERE TO BE PERFORMED OR GOODS DELIVERED. SINCE THE ASSESSEE HAS RECEIVED AMOUNT ON ACCOUNT OF SIGNING OF THE CONTRACT AGREEMENT FOR VARIOUS AGREE MENTS AND WORKS TO BE PERFORMED, THEREFORE THE AMOUNT RECEIVED IS TO BE R ECOGNIZED AS INCOME OF THE ASSESSEE AND ACCORDINGLY, THE CIT(A) UPHELD FINDING S OF THE AO VIDE ORDERS DATED 18-06-2012. 13. AGGRIEVED BY THE ORDERS DATED 18-06-2012 OF THE CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 14. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ADVANCE WAS RECEIVED FROM TIPS INDUSTRIES LTD OF RS. 25 LACS BY THE ASSESSEE. THE LD. COUNSEL DREW OUR ATTENTION TO PAGE NO. 90 & 91 OF P APER BOOK FILED WITH THE TRIBUNAL, WHICH IS PLACED ON RECORD, WHEREBY THERE IS AN MUTUAL ITA 4832 & 5601/MUM/2012 10 UNDERSTANDING DATED 05-02-2008 ENTERED INTO BY THE ASSESSEE WITH THE TIPS INDUSTRIES LTD AND BASED ON THE SAID MUTUAL UNDERST ANDING AN AMOUNT OF RS. 25 LACS WAS RECEIVED BY THE ASSESSEE WHEREIN IT WAS CLEARLY MENTIONED THAT THE AMOUNT OF RS. 25 LACS PAID TO THE ASSESSEE IS A N ADVANCE ON SIGNING OF THIS MUTUAL UNDERSTANDING DATED 05-02-2008 AND THIS ADVANCE IS NOT TOWARDS REMUNERATION BUT ONLY FOR ACCEPTING THE DIRECTORIAL ASSIGNMENT. IT WAS ALSO MENTIONED VIDE CL. 4 AND 5 OF THE MUTUAL UNDERSTAND ING THAT THE ADVANCE SHALL BE ADJUSTED AGAINST THE REMUNERATION ONLY ON COMMENCEMENT OF THE FIRST FILM AND IN THE EVENT OF NOT STARTING THE FIR ST FILM THE AMOUNT SO ADVANCED IS REFUNDABLE. THE LD. COUNSEL SUBMITTED THAT NO TDS HAS BEEN DEDUCTED ON THIS ADVANCE AND NO FILM HAS YET BEEN S TARTED AND THE TIPS INDUSTRIES LTD. IS DEMANDING REFUND OF THE ADVANCE AMOUNT. THIS TRANSACTION IS A LOAN TRANSACTION AND NOT REMUNERATION PAID TO THE ASSESSEE. IN SUPPORT, THE LD. COUNSEL RELIED UPON THE DECISION OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT V. SHANKARANARAYAN CONSTRUCTION CO. ( 1992) 197 ITR 688 (KAR) , UPON THE DECISION OF MUMBAI-TRIBUNAL IN THE CASE OF ROBIN NANA BHAI BHATT V. ACIT (2014)29 ITR (TRIB.) 531,DECISION OF THE HO NBLE DELHI HIGH COURT IN THE CASE OF CIT V. CONSULTING ENGINEERING SERVICES (INDIA) LIMITED (2001)250 ITR 849(DEL. HC). 15. THE LD. D.R., ON THE OTHER HAND, RELIED ON THE ORDERS OF AUTHORITIES BELOW. 16. WE HAVE CONSIDERED THE RIVAL CONTENTION AND ALS O PERUSED THE MATERIAL AVAILABLE ON RECORD INCLUDING THE CASE LAWS RELIED UPON BY RIVAL PARTIES. WE HAVE ALSO CAREFULLY PERUSED THE MUTUAL UNDERSTANDIN G DATED 05-02-2008 ENTERED INTO BETWEEN THE ASSESSEE AND THE TIPS IND USTRIES LTD. WHEREBY THE ASSESSEE HAS AGREED TO WORK WITH TIPS INDUSTRIES LT D. IT WAS ALSO AGREED BY THE ASSESSEE THAT BOTH THE FILM WILL START ONE AFTE R THE OTHER IMMEDIATELY AFTER THE FILM ON THE FLOOR ARE COMPLETED OR AT LEAST STA RT ONE FILM WITHIN ONE YEAR OF THE AGREEMENT WHICHEVER IS EARLIER. THE ASSESSEE WA S PAID RS. 25 LACS WITH THE CLEAR UNDERSTANDING THAT ADVANCE IS NOT REMUNER ATION BUT PAID ONLY FOR ITA 4832 & 5601/MUM/2012 11 ACCEPTING THE DIRECTORIAL ASSIGNMENT AND THE ADVANC E SHALL BE ADJUSTED AGAINST THE REMUNERATION ONLY ON THE COMMENCEMENT O F THE FIRST FILM AND IN THE EVENT OF NOT STARTING THE FIRST FILM, THE ASSES SEE WOULD REFUND THE ADVANCE IMMEDIATELY. THE ASSESSEE IS FOLLOWING CASH SYSTEM OF ACCOUNTING WHEREBY THE INCOME IS TAXED BASED UPON THE RECEIPT OF INCOME WH ETHER THE SERVICES ARE RENDERED OR NOT IS IMMATERIAL. HOWEVER, IN THE INS TANT CASE, THE AMOUNT OF RS.25,00,000/- HAS BEEN ADVANCED BY THE TIPS INDUST RIES LTD. WITH A CLEAR UNDERSTANDING THAT IT WILL NOT FORM PART OF THE REM UNERATION BUT FOR ACCEPTING THE DIRECTORIAL ASSIGNMENT AND IT WILL BE ADJUSTED ONLY ON COMMENCEMENT OF THE FIRST FILM. IT WAS ALSO AGREED THAT IN THE EVEN T OF NON STARTING OF THE FIRST FILM AS PER AGREED TERMS, THE SAID AMOUNT OF RS.25, 00,000/- WILL BE REFUNDED BY THE ASSESSEE TO TIPS INDUSTRIES LIMITED. IT IS A N UNDISPUTED FACT THAT THE ASSESSSEE DID NOT START THE FILM AS PER MUTUAL UNDE RSTANDING DATED 05-02- 2008 . IT IS STATED THAT TIPS INDUSTRIES LIMITED IS DEMANDING THEIR MONEY BACK DUE TO NON-STARTING OF THE FILM BY THE ASSESS EE. IN THE INSTANT CASE, THE AMOUNT OF RS.25,00,000/- HAS BEEN HELD BY THE ASSES SEE ON BEHALF OF TIPS INDUSTRIES LTD. AND IS NOT BEING HELD BY THE ASSESS EE IN HIS OWN RIGHT AS THE ASSESSEE CAN BE DEEMED TO HOLD THE SAID AMOUNT IN H IS OWN RIGHT ON COMMENCEMENT OF THE FILM. NO INCOME IS BEING GENER ATED OR EARNED EVEN UNDER THE CASH SYSTEM OF ACCOUNTING FOLLOWED BY THE ASSESSEE AS IN THE INSTANT CASE THE FILM HAS NOT COMMENCED AS PER AGRE ED TERMS AND THE AMOUNT HAS BECOME REFUNDABLE TO TIPS INDUSTRIES LIMITED WH ICH IS STATED TO BE ASKING FOR REFUND OF THEIR ADVANCE. IN OUR CONSIDERED VIE W, THE ADDITION MADE BY THE A.O. IS NOT SUSTAINABLE IN LAW BECAUSE THE AMOUNT I S BEING STILL HELD BY THE ASSESSEE ON BEHALF OF THE TIPS INDUSTRIES LTD AND N OT ON HIS OWN RIGHT AS PER THE AGREED TERMS OF CONDITIONS AS AGREED VIDE MUTUA L UNDERSTANDING DATED 05-02-2008 AS THE ASSESSEE WILL BE DEEMED TO APPROP RIATE THE SAID AMOUNT OR HOLD THE SAID AMOUNT IN HIS OWN RIGHT ONLY ON THE C OMMENCEMENT OF FILM AND TILL THEN THE ASSESSEE IS HOLDING THE SAID AMOUNT O F RS.25,00,000/- ON BELHAF OF TIPS INDUSTRIES LIMITED WHICH IS REFUNDABLE IN C ASE OF NON-STARTING OF THE ITA 4832 & 5601/MUM/2012 12 FILM AS PER AGREED TERMS AS PER MUTUAL UNDERSTANDIN G DATED 05-02-2008. THE ADDITION MADE BY THE A.O. AS CONFIRMED BY THE CIT(A ) IS HEREBY ORDERED TO BE DELETED. WE ORDER ACCORDINGLY. 17. THE THIRD GROUND RELATES TO THE DISALLOWANCE OF DEPRECIATION ON ASSETS NOT USED FOR THE PURPOSES OF BUSINESS AS ALLEGED BY THE REVENUE. AS PER FORM NO. 3CD, ANNEXURE IV, THE ASSESSEE HAS CLAIMED DEPRECIATION ON BLOCK OF FURNITURE AND FIXTURE AND COMPUTERS INSTALLED AT FLATS OWNED BY THE ASSESSEE NAMELY RAJ CLASSIQUE, TRANQUIL TREAT , EVERSHINE GREENS AND SAIDWAR FLATS. THE ASSESSEE HAS DECLARED RAJ CL ASSIQUE AS SELF OCCUPIED PROPERTY AND REST OF THE ASSETS I.E. THREE AFORE-ST ATED FLATS ARE CLAIMED BY THE ASSESSEE FOR BEING USED FOR THE PURPOSE OF BUSINESS . THE A.O. ASKED THE ASSESSEE AS TO WHETHER ELECTRICITY IS BEING CHARGED AT COMMERCIAL RATES AS IF IT IS A COMMERCIAL PROPERTY AS RATE OF ELECTRICITY ARE DIFFERENT FOR COMMERCIAL PROPERTIES VIS--VIS RESIDENTIAL PROPERTIES. THE AS SESSEE REPLIED THAT THE ASSESSEE IS MOSTLY WORKING ON MULTIPLE PROJECTS AT ONE TIME IN HIS CAPACITY AS AN ACTOR, DIRECTOR FOR WHICH HE REQUIRES THE USE OF DIFFERENT PROPERTIES AS OFFICE SPACE. THE ASSESSEE SUBMITTED THAT THE HE HAS THE F OLLOWING PROPERTIES AND THE DETAILS OF USE OF EACH OF THE PROPERTIES ARE G IVEN BELOW:- (A) SAIDWAR :- THIS PROPERTY IS BEING USED AS OFFICE FO R COMPANIES LIKE CHITRAYUG PRODUCTIONS PVT. LTD. IN WHICH THE ASSESS EE IS A DIRECTOR AND ALSO FOR HIS PROFESSIONAL PURPOSE. THE ASSESSEE HAS EARNED RENTAL INCOME OF RS. 60,000 / - DURING THE YEAR WHICH HAS BEEN DULY OFFERED FOR TAX. (B) EVERSHINE GREENS:- THIS PROPERTY IS BEING USED BY THE ASSESSEE AS OFFICE PREMISES FOR HIMSELF FOR HIS CREATIVE ACTIVI TIES AS AN ACTOR, DIRECTOR ETC. FOR CONDUCTING STORY SESSIONS, PHOTO SHOOTS, REHEARSALS ETC. ITA 4832 & 5601/MUM/2012 13 (C) TRANQUIL TREAT :-THIS PROPERTY IS ALSO BEING US ED AS GODOWN AND STORAGE SPACE FOR VARIOUS MATERIALS, COSTUMES, SCRI PTS OTHER FILM AND THEATRE STAGE RELATED MATERIAL. (D) RAJ CLASSIQUE :- THOUGH USED FOR RESIDENCE, THI S PROPERTY IS ALSO USED FOR CREATIVE ACTIVITIES, BUSINESS DEALINGS, NE GOTIATING PROJECTS WITH PRODUCERS/PRODUCTION HOUSES ETC. IN HIS CAPACITY AS AN ACTOR, DIRECTOR. THE ASSETS INSTALLED THEREIN ARE RELATED AND AN AID TO HIS PROFESSIONAL ACTIVITIES AND HENCE DEPRECIATION ON SUCH ASSETS IS CLAIMED. THE A.O. REJECTED THE CONTENTION OF THE ASSESSEE BY HOLDING AS UNDER:- A) OFFICE AT SAIDWAR:- IF THE OFFICE AT SAIDWAR WA S GIVEN ON RENT, THEN NO DEPRECIATION CLAIMED BY THE ASSESSEE AS IT IS NOT USED FOR THE PURPOSE OF HIS BUSINESS BUT FOR THE PU RPOSE OF BUSINESS TO WHOM IT IS LET OUT. HENCE, RS.90,378/- CLAIMED AS DEPRECIATION ON VARIOUS BLOCK OF ASSETS IS HEREBY D ENIED AND ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE. B) EVERSHINE GREENS:- THE ASSESSEE FAILED TO PRODUC E PROOF AS TO WHETHER THE ELECTRICITY IS BEING CHARGED AS COMM ERCIAL RATES IF THE PROPERTY IS USED FOR COMMERCIAL PURPOSE AS CLAI MED BY THE ASSESSEE. ALSO IT IS IRONICAL THAT NO DEPRECIATION IS BEING CLAIMED ON THE FLAT AS SUCH BUT DEPRECIATION IS BEING CLAIM ED ON THE BLOCK OF FURNITURE AND FIXTURE AND COMPUTERS. C) TRANQUIL TREAT:- THE ASSESSEE IS AN ACTOR AND A DIRECTOR WHO AT THE MOST REQUIRES ONE OFFICE TO OPERATE FROM . MOREOVER, THE ASSESSEE ALSO FAILED TO PRODUCE PROOF AS TO WHE THER THE ELECTRICITY IS BEING CHARGED AS COMMERCIAL RATES IF THE PROPERTY IS USED FOR COMMERCIAL PURPOSE AS CLAIMED BY THE ASSES SEE. ALSO IT IS IRONICAL THAT NO DEPRECIATION IS BEING CLAIMED O N THE FLAT AS SUCH BUT DEPRECIATION IS BEING CLAIMED ON THE BLOCK OF FURNITURE AND FIXTURE AND COMPUTERS. THUS DEPRECIATION OF RS . 39,337/- IS DENIED AND ADDED BACK TO THE TOTAL INCOME. D) RAJ CLASSIQUE:- THE ASSESSEE HIMSELF CLAIMS THAT THIS IS HIS SELF OCCUPIED PROPERTY. BUT AGAIN THE ASSESSEE HAS CLAIMED DEPRECIATION IS ON THE BLOCK OF FURNITURE AND FIXTU RE AND COMPUTERS WHICH IS NOT ALLOWABLE AS IT IS A SELF OC CUPIED PROPERTY. ALSO IT IS IRONICAL THAT NO DEPRECIATION IS BEING C LAIMED ON THE FLAT ITA 4832 & 5601/MUM/2012 14 AS SUCH BUT DEPRECIATION IS BEING CLAIMED ON THE BL OCK OF FURNITURE AND FIXTURE AND COMPUTERS. HENCE, DEPREC IATION OF RS. 82,469/- IS DENIED AND ADDED BACK TO THE TOTAL INCO ME. THUS THE TOTAL ADDITION DUE TO DISALLOWANCE OF DEPR ECIATION COMES TO RS. 2,12,184/- WHICH IS ADDED BACK TO THE PROFESSIONAL INCOME OF THE ASSESSEE BY THE AO VIDE ASSESSMENT ORDER DATED 07-12-2010 PASSE D U/S 143(3) OF THE ACT. 18.AGGRIEVED BY THE ASSESSMENT ORDER DATED 07-12-20 10 PASSED U/S 143(3) OF THE ACT, THE ASSESSEE PREFERRED AN FIRST APPEAL BEF ORE THE CIT(A). 19. BEFORE THE CIT(A), THE ASSESSEE SUBMITTED THAT SECTION 32(1) PROVIDES THAT DEPRECIATION IS ALLOWABLE IN RESPECT OF PLANT OR FURNITURE OWNED AND USED IN BUSINESS OR PROFESSION ON THE WRITTEN DOWN VALUE . IT IS OF NO CONSEQUENCE WHETHER ENTIRE PROPERTY IS USED FOR THE PURPOSE OF BUSINESS OR NOT. WITH REGARD TO SAIDWAR PROPERTY, THE ASSESSEE STATE D THAT THE ASSESSEE IS DIRECTOR OF M/S. CHITRAYUG PRODUCTION PVT. LTD. WHI CH WAS PREVIOUSLY ENGAGED IN PRODUCTION OF FILM AND CONSIDERING THAT THE COMP ANY IS DORMANT, HENCE A SMALL PART WAS GIVEN ON RENT @ RS. 60,000 PER ANNUM TO THAT COMPANY. THE ASSESSEE BEING DIRECTOR , PRODUCER , HENCE HIS PROF ESSION REQUIRES SUBSTANTIAL USE OF THE PROPERTY BY THE ASSESSEE, HENCE, DEPRECI ATION IS CLAIMED ON FURNITURE AND FIXTURES WHICH SHOULD BE DIRECTED TO BE ALLOWED. WITH RESPECT TO EVERSHINE GREENS PROPERTY, THE ASSE SSEE CLAIMED THAT THIS PROPERTY IS BEING USED BY THE ASSESSEE AS OFFICE PR EMISES FOR HIS CREATIVE ACTIVITIES AS AN ACTOR. CONSIDERING THE NATURE OF A CTIVITIES WHICH ARE NOT BEING DONE FROM REGULAR OFFICE IS DONE AT A CALM AND SERE NE PLACE. WITH REGARD TO THE TRANQUIL TREAT, IT WAS SUBMITTED THAT THIS PROPERTY WAS BEING USED AS GODOWN AND STORAGE PLACE FOR VARIOUS MATERIAL, COSTUME, AND ITA 4832 & 5601/MUM/2012 15 THUS BEING USED FOR BUSINESS AND FURNITURE AND FIXT URES ALSO BEING USED FOR BUSINESS PURPOSE HENCE, DEPRECIATION ON THE SAME SH OULD BE ALLOWED. WITH RESPECT TO THE RAJ CLASSIQUE PROPERTY, IT WAS STATED THAT WHILE THIS PROPERTY IS BEING USED FOR RESIDENCE, A PART OF IS ALSO USED FOR CREATIVE ACTIVITIES, BUSINESS DEALING, NEGOTIATING PROJECTS, HENCE DEPRECIATION SHOULD BE ALLOWED ON THE PART OF THIS PROPERTY. THE CIT(A) AFTER CONSIDERING THE FACTS AND PERUSING THE MATERIAL ON RECORD HELD THAT SAIDWAR PROPERTY WAS GIVEN ON RENT TO CHI TRAYUG PRODUCTIONS PVT. LTD. IN WHICH THE ASSESSEE IS DIRECTOR AND RECEIVED RENT FROM THE SAME. THE CIT(A) HELD VIDE ORDERS DATED 18-06-2012 THAT IT IS AN ESTABLISHED FACT THAT THE PROPERTY IN QUESTION WAS RENT OUT PROPERTY ON W HICH RENTAL INCOME HAS BEEN SHOWN, THEREFORE, THE A.O. WAS JUSTIFIED IN MA KING DISALLOWANCE OF DEPRECIATION ON THIS PROPERTY. WITH RESPECT TO EVERSHINE GREEN PROPERTY, IT WAS FO UND BY THE CIT(A) THAT THE ASSESSEE HAS NOT ABLE TO PRODUCE ANY EVIDENCE THAT THIS PROPERTY WAS BEING USED AS COMMERCIAL PROPERTY BY PROVIDING ELECTRICIT Y BILL, COMMERCIAL RATE ETC. FURTHER NO DEPRECIATION IS BEING CLAIMED ON THE FLA T BUT DEPRECIATION IS BEING CLAIMED ON FURNITURE AND FIXTURES, THE CIT(A) VIDE ORDERS DATED 18-06-2012 HELD THAT THE AO WAS RIGHT IN DISALLOWING THE DEPRE CIATION THEREON. WITH REGARD TO TRANQUIL TREAT PROPERTY, ON THE SAME REASONING AS IN THE CASE OF EVERSHINE GREEN PROPERTY, THE DEPRECIATION DISAL LOWED BY THE AO WAS UPHELD BY THE CIT(A) VIDE ORDERS DATED 18-06-2012. SO FAR AS RAJ CLASSIQUE PROPERTY IS CONCERNED, THE CIT(A) HELD THAT THE SAME HAS BEEN DECLARED AS SELF OCCUPIED PROPERTY BY THE ASSESSEE AND ALSO BEING USED AS RESIDENCE, THEREFORE, THE AO WAS JUSTIFIED IN DISALLOWING THE ITA 4832 & 5601/MUM/2012 16 DEPRECIATION THEREON AND ACCORDINGLY THE GROUND RAI SED BY THE ASSESSEE WAS DISMISSED BY THE CIT(A) VIDE ORDERS DATED 18-06-201 2. 20. AGGRIEVED BY THE ORDER DATED 18-06-2012 OF THE CIT(A) , THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 21. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT DEPRECIATION HAS BEEN CLAIMED OF BY THE ASSESSEE OF RS. 2,12,184/- WHICH WAS DISALLOWED BY THE A.O. AND SAME HAS BEEN CONFIRMED BY THE CIT(A). THE LD. COUNSEL SUBMITTED THAT THE ASSETS ARE PART OF BLOCK OF ASSETS IN WHICH DE PRECIATION WAS ALLOWED BY THE REVENUE IN EARLIER YEARS, THE DEPRECIATION HAS TO BE ALSO ALLOWED IN THE IMPUGNED ASSESSMENT YEAR UNDER APPEAL BASED ON THE PRINCIPLE OF CONSISTENCY AND THE SAME CANNOT BE DENIED TO THE AS SESSEE IN THIS ASSESSMENT YEAR UNDER APPEAL. THE LD. COUNSEL SUBM ITTED THAT THE CASE WAS SELECTED BY THE REVENUE FOR SCRUTINY FOR THE ASSESS MENT YEAR 2006-07 AND ASSESSMENT ORDER DATED 15-12-2008 WAS PASSED U/S 14 3(3) OF THE ACT WHEREBY THE DEPRECIATION WAS ALLOWED BY THE REVENUE . IN SUPPORT, HE RELIED ON THE DECISION OF THE MUMBAI-TRIBUNAL IN THE CASE OF E-CITY ENTERTAINMENT (INDIA) PVT. LTD. V. ADDL. CIT, [2013] 24 ITR (TRIB ) 73 (MUMBAI) AND THE DECISION OF MUMBAI-TRIBUNAL IN THE CASE OF G.R. SHI PPING LTD. V. DCIT IN ITA NO. 822/MUM/05 FOR THE ASSESSMENT YEAR 2001-02 DATE D 17 TH JULY 2008 WHICH WAS CONFIRMED BY THE HONBLE BOMBAY HIGH COUR T IN INCOME TAX APPEAL NO. 598 OF 2009 DATED 28 TH JULY, 2009. THE LD. COUNSEL ALSO RELIED ON THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT V. OSWAL CHEMICALS AND FERTILISERS LTD. [2012] 341 ITR 467 ( DELHI). 22. ON THE OTHER HAND, THE LD. D.R. SUPPORTED THE O RDERS OF AUTHORITIES BELOW. ITA 4832 & 5601/MUM/2012 17 23. WE HAVE CONSIDERED THE RIVAL CONTENTION AND ALS O PERUSED THE MATERIAL AVAILABLE ON RECORD AND ALSO THE JUDICIAL PRONOUNCE MENTS CITED BY THE RIVAL PARTIES. WE HAVE OBSERVED THAT THE ASSESSEE IS THE OWNER OF FOUR PREMISES NAMELY SAIDWAR, EVERSHINE GREENS, TRANQUIL TRE AT AND RAJ CLASSIQUE WHICH WAS STATED BY THE ASSESSEE TO HAVE BEEN UTILI ZED FOR THE PURPOSE OF HIS BUSINESS.THE ASSESSEE IS IN THE BUSINESS OF ACTING , DIRECTION AND FILM PRODUCTION. THE ASSESSEE HAS CLAIMED THAT THE ASSE SSEE HAS UTILIZED THESE PREMISES FOR BUSINESS FOR WHICH THE ASSESSEE HAS CL AIMED DEPRECIATION FOR THE FURNITURE AND FIXTURE AND COMPUTERS INSTALLED AT TH E ABOVE-STATED FOUR PREMISES. THE AUTHORITIES BELOW HAVE REJECTED THE CONTENTIONS OF THE ASSESSEE AND CLAIM OF THE ASSESSEE FOR GRANT OF DEPRECIATION ON FURNITURE AND FIXTURES AND COMPUTERS INSTALLED AT THESE PREMISES WAS NOT A CCEPTED BY THE REVENUE ON THE ALLEGATION THAT BUSINESS USER OF THESE AFORE -STATED FOUR PREMISES BY THE ASSESSEE IS NOT PROVED. IN OUR CONSIDERED VIEW AND IN THE INTEREST OF JUSTICE, THE MATTER NEED TO BE SET ASIDE AND RESTORED TO TH E FILE OF THE AO FOR DE-NOVO DETERMINATION OF THE ISSUE WITH RESPECT TO BUSINESS USER OF THESE FOUR PREMISES BY THE ASSESSEE FOR HIS BUSINESS ACTIVITIE S AND THE ASSESSEE IS DIRECTED TO PRODUCE COGENT EVIDENCE/MATERIAL TO SUB STANTIATE HIS CLAIM THAT THESE PREMISES WERE IN-FACT USED BY HIM FOR HIS BUS INESS. WE HAVE OBSERVED THAT THE A.O. IS INSISTING ON THE COMMERCIAL ELECTR ICITY USE AS EVIDENCE FOR ALLOWING THE CLAIM OF THE BUSINESS USER OF THE PREM ISES OF THE ASSESSEE, WHICH IN OUR VIEW, NO-DOUBT IS A VITAL DOCUMENT/EVIDENCE TO CLAIM THAT THE PREMISES ARE USED FOR COMMERCIAL / BUSINESS PURPOSES BUT IT IS NOT THE ONLY/SOLE EVIDENCE TO PROVE THAT THE AFORE-STATED PREMISES AR E USED BY THE ASSESSEE FOR THE PURPOSES OF HIS BUSINESS RATHER THE ASSESSEE C AN PROVE THE SAME BY BRINGING OTHER COGENT MATERIAL / EVIDENCES TO PROVE HIS CONTENTIONS THAT THESE PREMISES WERE USED FOR BUSINESS PURPOSES OF THE ASS ESSEE. THE ASSESSEE IS ALSO DIRECTED TO BRING ON RECORD COGENT MATERIAL/EV IDENCES TO PROVE HIS CONTENTIONS OF BUSINESS USER OF THE AFORE-STATED PR EMISES. THE A.O. IS DIRECTED TO ADMIT EVIDENCES FURNISHED BY THE ASSESS EE IN DE-NOVO PROCEEDINGS ITA 4832 & 5601/MUM/2012 18 IN HIS DEFENSE AND THE AO SHOULD CONSIDER THE NECES SARY EVIDENCES SUBMITTED BY THE ASSESSEE BEFORE DECIDING THE MATTER ON MERIT .NEEDLESS TO SAY THAT PROPER AND ADEQUATE OPPORTUNITY OF HEARING IN ACCOR DANCE WITH LAW SHALL BE GRANTED TO THE ASSESSEE BY THE AO BEFORE DECIDING T HE ISSUE ON MERITS IN DE- NOVO PROCEEDINGS. WE ORDER ACCORDINGLY. 24. GROUND NO. 4 RELATES TO THE ACTION OF THE A.O. IN TREATING THREE PROPERTIES NAMELY EVERSHINE GREENS , SAIDWAR A ND TRANQUIL TREAT AS DEEMED TO BE LET OUT PROPERTIES. THE ASSESSEE WAS ASKED AS TO WHY THESE THREE PROPERTIES OTHER THAN RAJ CLASSIQUE (SELF OCC UPIED PROPERTY) SHOULD NOT BE CONSIDERED AS DEEMED LET OUT PROPERTIES. THE ASS ESSEE SUBMITTED THE SAME SUBMISSIONS AS SUBMITTED WHILE REPLYING WITH RESPEC T TO DISALLOWANCE OF DEPRECIATION ON FURNITURE AND FIXTURES AND COMPUTER S INSTALLED AT THESE PROPERTIES WHICH ARE REPRODUCED HEREUNDER : (B) SAIDWAR :- THIS PROPERTY IS BEING USED AS OFFICE FO R COMPANIES LIKE CHITRAYUG PRODUCTIONS PVT. LTD. IN WHICH THE ASSESS EE IS A DIRECTOR AND ALSO FOR HIS PROFESSIONAL PURPOSE. THE ASSESSEE HAS EARNED RENTAL INCOME OF RS. 60, 00 0/ - DURING THE YEAR WHICH HAS BEEN DULY OFFERED FOR TAX. (B) EVERSHINE GREENS:- THIS PROPERTY IS BEING USED BY THE ASSESSEE AS OFFICE PREMISES FOR HIMSELF FOR HIS CREATIVE ACTIVI TIES AS AN ACTOR, DIRECTOR ETC. FOR CONDUCTING STORY SESSIONS, PHOTO SHOOTS, REHEARSALS ETC. (C) TRANQUIL TREAT :-THIS PROPERTY IS ALSO BEING US ED AS GODOWN AND STORAGE SPACE FOR VARIOUS MATERIALS, COSTUMES, SCRI PTS OTHER FILM AND THEATRE STAGE RELATED MATERIAL. (D) RAJ CLASSIQUE :- THOUGH USED FOR RESIDENCE, THI S PROPERTY IS ALSO USED FOR CREATIVE ACTIVITIES, BUSINESS DEALINGS, NE GOTIATING PROJECTS WITH PRODUCERS/PRODUCTION HOUSES ETC. IN HIS CAPACITY AS AN ACTOR, DIRECTOR. ITA 4832 & 5601/MUM/2012 19 THE REVENUE HAS CONSIDERED THE OTHER PROPERTIES AS DEEMED LET OUT PROPERTIES OTHER THAN RAJ CLASSIQUE PROPERTY WHICH IS TREATED AS SELF OCCUPIED PROPERTY, AND THE GROSS ALV OF THE THREE HOUSE PROPERTY OTHER THAN RAJ CLASSIQUE WERE TAKEN AT 10% OF THE RESPECTIVE BOOK VALUE OF PROPER TY AS DEEMED LET OUT PROPERTIES WHILE WORKING OF INCOME OF THESE HOUSE PROPERTIES UNDER THE HEAD INCOME FROM HOUSE PROPERTY WHICH WAS CALCULATED A S UNDER:- SAIDWAR - 32,41,630 EVERSHINE GREENS - 44,59,690 TRANQUIL TREAT - 9,00,000 TOTAL - 86,01,320 10% OF THE BOOK VALUE OF THE PROPERTY 8,60,132 LESS: 30% STANDARD DEDUCTION 2,58,040 6,02,092 HENCE, RS. 6,02,092/- WAS TREATED AS INCOME FROM HO USE PROPERTY AND ADDED TO THE INCOME OF THE ASSESSEE BY THE AO VIDE ASSESS MENT ORDER DATED 07-12- 2010 PASSED U/S 143(3) OF THE ACT. 25.AGGRIEVED BY THE ASSESSMENT ORDER DATED 07-12-20 10 PASSED BY THE AO U/S 143(3) OF THE ACT, THE ASSESSEE PREFERRED AN AP PEAL BEFORE THE FIRST APPELLATE AUTHORITY I.E. THE CIT(A). 26. BEFORE THE CIT(A) THE ASSESSEE CONTENDED THAT ALL THE THREE PROPERTIES NAMELY SAIDWAR, EVERSHINE GREEN AND TRANQUIL TREAT ARE BEING USED FOR THE PERSONAL USE OF PROFESSION HENCE THERE WAS NO CAUSE FOR TREATING THE SAME AS DEEMED LET OUT PROPERTIES. THE ASSESSEE SUBMITTED T HAT THE AO SHOULD HAVE GIVEN DRAFT COMPUTATION OF INCOME FROM HOUSE PROPER TY AND THE RENTAL FROM RESIDENTIAL PROPERTY GENERATE RETURNS ABOUT 3-4% OF THE AMOUNT OF PURCHASE OF PROPERTY, THEREFORE RENTAL INCOME COMPUTED BY TA KING 10% OF BOOK VALUE IS NOT COMMENSURATE WITH AMOUNT OF INVESTMENT. SECTION 23(1)(B) OF THE ACT DOES NOT SPECIFY ANY SUCH FORMULA FOR DETERMINATION OF ANNUAL LETTING VALUE. ITA 4832 & 5601/MUM/2012 20 THE ASSESSEE RELIED ON THE JUDGMENT OF HONBLE SUPR EME COURT IN THE CASE OF CIT V. BHARAT RAM & SONS, 266 ITR 106 (SC) AND REQU ESTED TO CONSIDER THE ALV @4% OF HALF THE BOOK VALUE FROM WHICH DEDUCTION OF MUNICIPAL TAX AND STANDARD DEDUCTION SHOULD BE ALLOWED U/S 24(A) OF T HE ACT. THE CIT(A) AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE DIRECTED THE A.O. TO RECALCULATE THE INCOME FROM HOUSE PROPERTY BY TA KING ALV @8% OF BOOK VALUE OF ABOVE PROPERTIES VIDE ORDERS DATED 18-06-2 012. 27.AGGRIEVED BY THE ORDERS DATED 18-06-2012 OF THE CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 28. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE PROPERTIES HAVE BEEN USED FOR THE PERSONAL USE OF PROFESSION AND HE NCE IT SHOULD NOT BE TREATED AS DEEMED LET OUT PROPERTIES AS SECTION 22 OF THE ACT CLEARLY LAID DOWN THAT WITH RESPECT TO PROPERTIES USED FOR THE PURPOS ES OF BUSINESS OR PROFESSION, THE ANNUAL VALUE OF SUCH PROPERTY SHALL BE TAKEN TO BE NIL FOR COMPUTING UNDER THE HEAD INCOME FROM HOUSE PROPERT Y . THESE PROPERTIES WERE USED FOR THE PURPOSE OF BUSINESS AND THE SAME SHALL NOT BE CHARGEABLE TO TAX UNDER THE HEAD INCOME FROM HOUSE PROPERTY. HE SUBMITTED THAT THIS ISSUE IS CONNECTED WITH THE EARLIER ISSUE RELATING TO THE CLAIM OF DEPRECIATION ON THE FIXED ASSETS. ON THE OTHER HAND, THE LD. D.R . SUPPORTED THE ORDERS OF AUTHORITIES BELOW. 29. WE HAVE CONSIDERED THE RIVAL SUBMISSION AND ALS O PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ASSESSEES CLAIM IS THAT ALL THE THREE PROPERTIES WERE BEING USED FOR THE PERSONAL USE OF PROFESSION HENCE IT SHOULD NOT BE TREATED AS DEEMED LET OUT PROPERTIES. WE FIND THAT THE ASS ESSEE ALSO CLAIMED DEPRECIATION ON FURNITURE AND FIXTURE AND COMPUTERS INSTALLED AT THESE PROPERTIES WHEREBY WE HAVE SET ASIDE THE MATTER OF ALLOWABILITY OF DEPRECIATION ITA 4832 & 5601/MUM/2012 21 ON FURNITURE AND FIXTURES AND ON COMPUTERS TO THE F ILE OF A.O. AND DIRECTED THE ASSESSEE TO PRODUCE COGENT EVIDENCE/MATERIAL TO SUB STANTIATE HIS CLAIM OF BUSINESS USER OF THE AFORE-STATED PROPERTIES AND T HE A.O. SHALL EXAMINE THE SAME FOR DECIDING THE ISSUE OF CLAIM OF DEPRECIATIO N AND WE APPLY THE SAME PRINCIPLE IN THIS ISSUE ALSO, HENCE, WE SET ASIDE T HIS ISSUE TO THE FILE OF A.O. FOR DE-NOVO DETERMINATION OF ISSUE AFTER CONSIDERING TH E COGENT MATERIAL/EVIDENCES BROUGHT ON RECORD BY THE ASSESSE E IN HIS DEFENSE IN DE- NOVO PROCEEDINGS . THE A.O. IS DIRECTED TO ADMIT E VIDENCES FURNISHED BY THE ASSESSEE IN DE-NOVO PROCEEDINGS IN HIS DEFENSE AND THE AO SHOULD CONSIDER THE NECESSARY EVIDENCES SUBMITTED BY THE ASSESSEE B EFORE DECIDING THE MATTER ON MERIT. THE A.O. IS ALSO DIRECTED TO DECIDE THE I SSUE IN THE LIGHT OF THE GUIDELINES LAID DOWN BY HONBLE BOMBAY HIGH COURT I N THE CASE OF TIPTOP TYPOGRAPHY (2014) 48 TAXMANN.COM 191(BOM.HC) IN ARR IVING AT THE ALV OF THE ABOVE PROPERTIES. NEEDLESS TO SAY THAT THE A.O WILL GRANT THE ASSESSEE PROPER AND ADEQUATE OPPORTUNITY OF BEING HEARD AS P ER LAW TO COMPLY WITH PRINCIPLES OF NATURAL JUSTICE IN ACCORDANCE WITH LA W. WE ORDER ACCORDINGLY. ITA NO. 5601/MUM/2012(REVENUE APPEAL). 30. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE TAX EFFECT INVOLVED IN THIS APPEAL OF THE REVENUE IS LE SS THAN RS. 10 LACS. HE SUBMITTED THAT AS PER THE LATEST CBDT CIRCULAR NO. 21/2015, F. NO. 279/MISC.142/2007-ITJ (PT) DATED 10 TH DECEMBER, 2015 ISSUED BY CENTRAL BOARD OF DIRECT TAXES, DEPARTMENT OF REVENUE, MINIS TRY OF FINANCE, GOVERNMENT OF INDIA, NO APPEAL SHALL BE FILED BY TH E REVENUE IN RESPECT OF AN ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IS LESS THAN THE MONETARY LIMIT SPECIFIED IN PARA 3. PARA 3 OF THE CIRCULAR NO. 21/2015 ITA 4832 & 5601/MUM/2012 22 S NO. APPEALS IN INCOME TAX MATTERS MONETARY LIMIT (IN RS) 1 BEFORE APPELLATE TRIBUNAL 10,00,000/- 2 BEFORE HIGH COURT 20,00,000/- 3 BEFORE SUPREME COURT 25,00,000/- IN THE SAID CIRCULAR VIDE PARA 10, IT IS STIPULATE D THAT THIS INSTRUCTION WILL APPLY RETROSPECTIVELY TO PENDING APPEALS AND APPEAL S TO BE FILED HENCEFORTH IN HIGH COURTS/TRIBUNALS. PENDING APPEALS BELOW THE S PECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRAWN/NOT PRESSED. 31. THE LD. D.R. FAIRLY CONCEDED THAT TAX EFFECT IN VOLVED IN THIS APPEAL OF THE REVENUE IS LESS THAN RS. 10 LACS AND THE CBDT CIRCU LAR NO. 21/2015 IS APPLICABLE TO THIS APPEAL AND THE APPEAL IS NOT MAI NTAINABLE. 32. KEEPING IN VIEW THE CBDT CIRCULAR NO. 21/2015 D ATED 10 TH DECEMBER, 2015 WHICH IS APPLICABLE FROM RETROSPECTIVE EFFECT AND IS ALSO APPLICABLE TO PENDING APPEALS AND ALSO IN VIEW OF DR STATING BEFO RE US THAT THIS APPEAL BEARING ITA NO 5601/MUM/2012 IS NOW NOT MAINTAINABL E/NOT PRESSED IN VIEW OF THE ABOVE CBDT CIRCULAR, WE HOLD THAT THIS APPEA L BEARING NO. ITA NO 5601/MUM/2012 FILED BY THE REVENUE WHICH IS COVERED BY THIS ORDER INVOLVING TAX EFFECT LESS THAN RS. 10 LACS IS NOT M AINTAINABLE AND IS DISMISSED BEING NOT PRESSED. HOWEVER, THE REVENUE IS AT LIBER TY TO FILE AN APPLICATION FOR RECALL OF THIS APPEALS IN ACCORDANCE WITH LAW, IF A T ANY STAGE IT IS FOUND THAT TAX EFFECT IS MORE THAN RS 10 LACS OR THE REVENUE W ANTS TO AGITATE THE MATTER IN ACCORDANCE WITH THE PROVISIONS/CLAUSES AS CONTAI NED IN THE AFORE-STATED CIRCULAR. WE ORDER ACCORDINGLY. 23. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IN ITA N0. 4832/MUM/2012 IS PARTLY ALLOWED AND APPEAL FILED BY THE REVENUE IN ITA NO. 5601/MUM/12 IS DISMISSED. ITA 4832 & 5601/MUM/2012 23 ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH FEBRUARY, 2016. # $% &' 25-02-2016 ( ) SD/- SD/- (SAKTIJIT DEY) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER $ MUMBAI ; & DATED 25-02-2016 [ .9../ R.K. R.K. R.K. R.K. , EX. SR. PS !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. : ( ) / THE CIT(A)- CONCERNED, MUMBAI 4. : / CIT- CONCERNED, MUMBAI 5. =>( 99?@ , ?@ , $ / DR, ITAT, MUMBAI H BENCH 6. (BC D / GUARD FILE. / BY ORDER, = 9 //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , $ / ITAT, MUMBAI