M/s. CHL Ltd., New Delhi V. Addl. CIT, New Delhi

ITA 5778/DEL/2015

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4239 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2005-2006
• Appeal Filed On: 19-10-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MD GAYASUDDIN ANSARI
• Assessee Lawyers: S K KHOSLA
• Keywords: Business income; Depreciation; Rectification of order; Unabsorbed depreciation
• Section: 143(3); 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES G : DELHI BEFORE SHRI BHAVNESH SAINI, J.M. AND SHRI PRASHANT MAHARISHI, A.M. ITA.NO.5778/DEL./2015 ASSESSMENT YEAR 2005-2006 M/S. CHL LTD., HOTEL CROWN PLAZA SURYA, NEW FRIENDS COLONY, NEW DELHI. PAN AAACC2587M VS. THE ADDL. CIT RANGE-3 NEW DELHI. (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI S.K. KHOSLA, ADVOCATE FOR REVENUE : SHRI MD. GAYASUDDIN ANSARI, SR. D.R. DATE OF HEARING : 24 . 1 0.2018 DATE OF PRONOUNCEMENT : 01 . 11 .2018 ORDER PER BHAVNESH SAINI, J.M. THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-VI, NEW DELHI, DATED 26.08.2014, FOR THE A.Y. 2005-2006, IN CHALLENGING THE ORDER OF THE LD. CIT(A) IN REJECTING THE RECTIFICATION APPLICATION FILED BY ASSESSEE. 2 ITA.NO.5778/DEL./2015 M/S. CHL LTD., NEW DELHI. 2. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOTH THE PARTIES. 3. LEARNED COUNSEL FOR THE ASSESSEE REFERRED TO PARA 4.3 OF THE ORDER OF THE LD. CIT(A) IN WHICH ASSESSEE CONTENDED THAT THE A.O. ERRED IN NOT SETTING-OFF THE UNABSORBED DEPRECIATION AMOUNTING TO RS.1,29,79,371/- FOR A.Y. 2002- 2003 AS PER THE DIRECTION GIVEN BY THE LD. CIT(A) IN APPELLATE ORDER. THE LD. CIT(A) NOTED THAT IN THIS REGARD, THE A.O. FOLLOWING THE DIRECTIONS OF THE LD. CIT(A)-IV, NEW DELHI, PASSED THE ORDER UNDER SECTION 250/143(3) DATED 10.08.2010 IN WHICH A.O. INTIMATED THAT CLAIM OF ASSESSEE FOR SETTING-OFF THE UNABSORBED DEPRECIATION IS INCORRECT. THE CLAIM OF UNABSORBED DEPRECIATION HAS ALREADY BEEN DISALLOWED UNDER SECTION 143(3) DATED 14.12.2007 IN A.Y. 2005-2006. THE LD. CIT(A), THEREFORE, OBSERVED THAT ASSESSEES CLAIM WAS INADVERTENTLY/WRONGLY ALLOWED IN PROCEEDING UNDER SECTION 143(1) DATED 26.03.2007 WHICH WAS RECTIFIED UNDER SECTION 154/143(1) OF THE I.T. ACT ON 10.06.2011. SINCE THE ASSESSEE HAS CLAIMED WRONG 3 ITA.NO.5778/DEL./2015 M/S. CHL LTD., NEW DELHI. UNABSORBED DEPRECIATION AMOUNTING TO RS.1,29,79,371/- PERTAINING TO A.Y. 2002-2003, A.O. HAS POWER TO RECTIFY THE MISTAKE APPARENT ON RECORD UNDER SECTION 154 OF THE I.T. ACT, 1961. THE LD. CIT(A), ACCORDINGLY, CONFIRMED THE ORDER OF THE A.O. 3. LEARNED COUNSEL FOR THE ASSESSEE REFERRED TO THE ORDER OF THE A.O. DATED 14.12.2007 FOR THE A.Y. 2005-2006 IN WHICH THE A.O. RECORDED THE SAME FACT THAT CLAIM OF ASSESSEE OF BROUGHT FORWARD UNABSORBED DEPRECIATION FOR A.Y. 2002- 2003 AMOUNTING TO RS.1,29,79,371/- IS NOT AVAILABLE. HENCE, IT WAS NOT PERMISSIBLE (PB-7). HE HAS ALSO REFERRED TO ORDER OF LD. CIT(A)-IV, NEW DELHI, DATED 22.06.2010 FOR THE A.Y. 2005- 2006 IN WHICH THE LD. CIT(A) ON GROUND NO.7 RELATING TO SET-OFF THE UNABSORBED DEPRECIATION LOSS AGAINST CURRENT BUSINESS INCOME NOTED THAT SINCE THERE ARE NO SPECIFIC OBSERVATIONS MADE BY THE A.O. IN THIS REGARD IN THE ASSESSMENT ORDER, THE A.O. WAS DIRECTED TO VERIFY THE CLAIM OF ASSESSEE AND ACCORDINGLY ALLOW THE CLAIM AS PER RULES. LEARNED COUNSEL FOR 4 ITA.NO.5778/DEL./2015 M/S. CHL LTD., NEW DELHI. THE ASSESSEE, THEREFORE, CONTENDED THAT THE ORDER OF THE LD. CIT(A) DATED 22.06.2010 FOR A.Y. 2005-2006 UNDER APPEAL HAS NOT BEEN FOLLOWED BY THE A.O. THEREFORE, DIRECTION MAY BE GIVEN TO THE A.O. TO FOLLOW THE ORDER OF THE LD. CIT(A) DATED 22.06.2002 AND PASS THE ORDER ACCORDINGLY. 4. THE LD. D.R, HOWEVER, RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT LD. CIT(A) HAS ALREADY CONSIDERED THE ISSUE, THEREFORE, NO FURTHER DIRECTION IS REQUIRED. 5. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND IN THE LIGHT OF ORDER OF THE LD. CIT(A) REFERRED TO ABOVE, WE ARE OF THE VIEW THAT DIRECTION SHOULD BE GIVEN TO THE A.O. TO FOLLOW THE ORDER OF THE LD. CIT(A) DATED 22.06.2010 WHILE PASSING THE ORDER IN THE MATTER. IN THIS CASE, FOR THE ASSESSMENT YEAR UNDER APPEAL I.E., 2005-2006, THE LD. CIT(A) HAS ALREADY DIRECTED THE A.O. TO VERIFY THIS CLAIM OF ASSESSEE AND ALLOW THE CLAIM AS PER RULES. THEREFORE, A.O. IS BOUND TO FOLLOW THE ORDER OF THE LD. CIT(A) DATED 22.06.2010 (SUPRA). IT APPEARS THAT 5 ITA.NO.5778/DEL./2015 M/S. CHL LTD., NEW DELHI. A.O. WHILE PASSING THE RECTIFICATION ORDER UNDER SECTION 154 UNDER CHALLENGE HAS NOT FOLLOWED THE ORDER OF THE LD. CIT(A) DATED 22.06.2010. THEREFORE, THE ORDERS OF THE A.O. IS SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF A.O. WITH A DIRECTION TO PASS THE ORDER AFRESH AS PER LAW FOLLOWING THE ORDER OF THE LD. CIT(A) DATED 22.06.2010 FOR A.Y. 2005-2006 REFERRED TO ABOVE. ACCORDINGLY, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (PRASHANT MAHARISHI) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DELHI, DATED 01 ST NOVEMBER, 2018 VBP/- COPY TO 1. THE APP ELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT G BENCH, DELHI 6. GUARD FILE. 6 ITA.NO.5778/DEL./2015 M/S. CHL LTD., NEW DELHI. // BY ORDER // ASSISTANT REGISTRAR : ITAT DELHI BENCHES : DELHI.