KRUTI CONSTRUCTION P. LTD, MUMBAI V. ITO WD 10(2)(3), MUMBAI

ITA 5790/MUM/2010

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75562 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-02-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 18-02-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 16-07-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: M L PERUMAL
• Keywords: Depreciation; Tax effect; Unabsorbed depreciation

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A MUMBAI . . , / , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER /AND SHRI SANJAY ARORA, ACCOUNTANT MEMBER . / ITA NO.5790/MUM/2010 ' ' ' ' # # # # / ASSESSMENT YEAR 2005-06. M/S.KRUTI CONSTRUCTION PVT. LTD., 5 TH FLOOR, FINE HOUSE, ANANDJI LANE, M.G. ROAD, OPP.DENA BANK, GHATKOPAR(E), MUMBAI 400077 ' ' ' ' / VS. THE INCOME OFFICER, WARD 10(2) (3), MUMBAI. $ ./ % ./ PAN/GIR NO. : AAACK 1553H ( $& / APPELLANT ) .. ( '($& / RESPONDENT ) APPELLANT BY : SHRI GYANESHWAR KATARAM RESPONDENT BY : SHRI M.L.PERUMAL ' ) *+ / DATE OF HEARING : 18/02/2014 ,# ) *+ / DATE OF PRONOUNCEMENT : 18/02/2014 - / O R D E R PER I.P.BANSAL, JM: THIS IS AN APPEAL FILED BY THE ASSESSEE AND IT I S DIRECTED AGAINST THE ORDER PASSED BY LD. CIT(A)-X, MUMBAI DATED 03/05/20 10 FOR THE ASSESSMENT YEAR 2005-06. THE GROUNDS OF APPEAL READ AS UNDER : 1. IN THE CIRCUMSTANCES AND FACTS OF OUR CASE, THE LD. COMMISSIONER OF INCOME TAX(APPEALS) HAS ERRED IN . / ITA NO.5790/MUM/2010 ' ' ' ' # # # # / ASSESSMENT YEAR 2005-06. 2 A) UPHOLDING THE ASSESSMENT OF SERVICE CHARGES RECE IVED UNDER THE TWO HEADS OF INCOME I.E. ASSESSING INCOME FROM HOUSE PROPERTY AT RS.16,25,140/- AND INCOME FROM OTHER SOURCES AT RS.5,03,863/- IN CONTRADICTIO N OF ASSESSING THE SAID SERVICE CHARGES UNDER THE HEAD PROFITS AND GAINS OF BUSINES S OR PROFESSION AS HELD IN THE PAST AFTER DUE SCRUTINY AND APPRECIATION OF FACTS. B) NOT ALLOWING THE SET OFF OF UNABSORBED DETERMINE D BROUGHT FORWARD DEPRECIATION OF EARLIER YEAR AGAINST THE INCOME ASS ESSABLE FOR THE YEAR ON THE GROUND THAT SINCE DEPRECIATION IS A NATURE OF ALLOW ANCE AND NOT A LOSS, BROUGHT FORWARD DEPRECIATION IS NOT ALLOWABLE TO BE SET OFF AGAINST THE INCOME FROM THE HOUSE PROPERTY IN VIEW OF PROVISION OF SECTION 32(2 ) R/W SECTION 72(2). IT IS AN UNDISPUTED FACT THAT PROVISIONS OF SEC.37(2) IS SUB JECT TO PROVISIONS OF SEC.72(2) ONLY IN RELATION TO PRIORITY OF SET OFF AND NOT IN RELATION TO THE CARRY FORWARD AND SET OFF OF UNABSORBED DEPRECIATION AS CLEARLY STATE D INDEPENDENTLY IN SEC.32 (2). 2. AT THE TIME OF HEARING LD. AR OF THE ASSESSEE H AS FILED A LETTER DATED 05/02/2014, THE CONTENTS OF WHICH READ AS UNDER: TO THE HONBLE MEMBERS, ITAT, ABENCH,MUMBAI. MAY IT PLEASE YOUR HONOUR. RE: APPEAL NO. 5790/MUM-2010 FOR ASST. YEAR 2005-06 HEARING FIXED ON 18/2/14. 1. PLEASE REFER TO THE HEARING FIXED ON 18.02. 2014 . 2 THE ASSESSEESS APPEAL IS AGAINST THE ORDER OF T HE CIT(A) DATED I6/09/2011 IN RELATION TO ASSESSABILITY OF THE HEAD OF INCOME. T HE ASSESSING OFFICER HAD NOT GIVEN EFFECT TO CIT(A) ORDER DATED16/09/2011 AS PE R CERTAIN RELIEF GRANTED BY THE CIT(A). 3 WE HAD FILED APPEAL TO THE CIT(A) AGAINST THE OR DER GIVING EFFECT TO THE CIT(A) ORDER AND THE CIT(A) VIDE ITS ORDER DATED 17/07/201 1 DIRECTED THE ASSESSING OFFICER TO FOLLOW THE DIRECTION AS GIVEN BY THE PRE DECESSOR CIT(A) IN ITS ORDER DATED 16/09/2011. THE ASSESSING OFFICER HAS VIDE ORDER D ATED 07/10/2013 NOW CORRECTLY GIVEN EFFECT TO THE CIT(A) ORDER DATED 17 /07/2013 READ WITH THE CIT(A) ORDER DATED 16/09/2011. 4 SINCE THERE IS NO TAX EFFECT ON THE ASSESSEE AFTE R THE CORRECT PASSING OF THE GIVING EFFECT ORDER AND FURTHER RELIEF WOULD NOT M AKE ANY DIFFERENCE ON THE TAX EFFECT SINCE THE INCOME IS FINALLY ASSESSED U/S. 1 15J1B, THE ASSESSEE MOST EARNESTLY REQUEST YOUR HONONOUR TO ALLOW US TO WIT HDRAW THE APPEAL FILED . / ITA NO.5790/MUM/2010 ' ' ' ' # # # # / ASSESSMENT YEAR 2005-06. 3 BEFORE YOUR HONOUR WHICH ASSESSEE HEREBY DOES. WE HEREBY WITHDRAW THE APPEAL UNDER HEARING. 5 PLEASE EXCUSE US FOR THE INCONVENIENCE CAUSED BE FORE YOUR HONOUR. THANKING YOU, YOURS FAITHFULLY FOR KRUTI CONSTRUCTIONS PVT. LTD. SD/- DIRECTOR C.C TO : DEPT. REP. OF INCOME TAX, A BENCH, MUMBAI. 2. LD. DR DID NOT HAVE ANY OBJECTION TO THE REQUES T OF THE ASSESSEE FOR WITHDRAWING THE APPEAL. ACCORDINGLY, THE ASSESSEE WAS PERMITTED TO WITHDRAW THE APPEAL. IN VIEW OF THE ABOVE, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED AS WITHDRAWN. 3. IN THE RESULT, THE APPEAL FILED BY THE ASSESSE E IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18/02/20 14 - ) ,# . /'0 18/02/2014 ) 1 SD/- SD/- ( / SANJAY ARORA ) ( . . / I.P. BANSAL ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; /' DATED 18/02/2014 - - - - ) )) ) '*2 '*2 '*2 '*2 32#* 32#* 32#* 32#* / COPY OF THE ORDER FORWARDED TO : 1. $& / THE APPELLANT 2. '($& / THE RESPONDENT. 3. 4 ( ) / THE CIT(A)- 4. 4 / CIT 5. 251 '*' , , / DR, ITAT, MUMBAI 6. 16 7 / GUARD FILE. -' -' -' -' / BY ORDER, (2* '* //TRUE COPY// 8 88 8 / 9 9 9 9 (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI