ASSTT.C.I.T.-11(2), MUMBAI V. SHRI. S. GANESH, MUMBAI

ITA 6187/MUM/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 7845 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2010
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: E
• Next Hearing Date: 25-11-2009
• Assessment Year: 2005-2006
• Appeal Filed On: 16-10-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NAVEEN GUPTA
• Assessee Lawyers: NIRAJ V PUNMIYA
• Keywords: Depreciation; Set aside
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E : MUMBAI BEFORE SHRI D.K. AGARWAL, (JM) AND SHRI RAJENDRA SINGH ,(AM) ITA NO.6187/MUM/2008 ASSESSMENT YEAR :2005-06 ASSTT. COMMISSIONER OF INCOME TAX -11(2) ROOM NO.479,4 TH FLOOR AAYAKAR BHAVAN, M.K. ROAD MUMBAI-400 020. ..( APPELLANT ) VS. SHRI S. GANESH 10, 2 ND FLOOR, FAIRFIELD J.B. MALANI ROAD CHIRCHGATE MUMBAI-20. ..( RESPONDENT ) P.A. NO. (AAGPS 5047 M) APPELLANT BY : SHRI NAVEEN GUPTA RESPONDENT BY : SHR I NIRAJ V. PUNMIYA O R D E R PER D.K. AGARWAL (JM). THIS APPEAL PREFERRED BY THE REVENUE IS DIRECTED AGAIN ST THE ORDER DATED 08.08.2008 PASSED BY THE LD. CIT(A) FOR T HE ASSESSMENT YEAR 2005-06. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSESSEE IS A SENIOR ADVOCATE PRACTICING MAINLY IN THE SUPREME COURT AND HIG H COURTS. HE FILED HIS RETURN DECLARING AN INCOME OF RS.4,74,16,750/ -. HOWEVER, THE ITA NO.6187/M/08 A.Y: 05-06 2 ASSESSMENT WAS COMPLETED AT AN INCOME OF RS.4,94,95,675/- INCLUDING THE DISALLOWANCE OF DEPRECIATION ON OFFICE PR EMISES RS.18,08,255/-, DEPRECIATION ON CAR AND CAR EXPENSES RS.85 ,917/-, MISCELLANEOUS EXPENSES RS.1,24,510/- AND ADDITION OF I NTEREST ON INCOME TAX REFUNDS RS.60,245/-, VIDE ORDER DATED 25.1 2.2007 PASSED U/S.143(3) OF THE INCOME TAX ACT, 1961(THE ACT). ON AP PEAL, THE LD. CIT(A) AFTER CONSIDERING THE ASSESSEES SUBMISSION SENT VIDE L ETTER DATED 2.8.2008 HAS DELETED THE DISALLOWANCE OF DEPRECI ATION ON OFFICE PREMISES RS.18,08,255/- BY FOLLOWING THE APPELLATE ORD ER FOR THE ASSESSMENT YEAR 2004-05 AND REDUCED THE DISALLOWANCE OF CAR DEPRECIATION AND EXPENSES TO 20% AS AGAINST 25% MADE BY THE AO AND ACCORDINGLY PARTLY ALLOWED THE APPEAL. 3. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A) T HE REVENUE IS IN APPEAL BEFORE US TAKING FOLLOWING EFFECTIVE GROUND OF APPEAL. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETI NG THE DISALLOWANCE OF DEPRECIATION OF RS.18,08,255/- WITH OUT APPRECIATING THE FACT THAT THE ASSESSEE FAILED TO E XPLAIN THE INVESTMENT IN THE OFFICE PREMISES IN F.Y.2003-0 4 RELEVANT TO A.Y. 2004-05. 4. AT THE TIME OF HEARING THE LD. DR SUBMITS THAT TH E REVENUES APPEAL FOR THE ASSESSMENT YEAR 2004-05 IS PENDING BEFO RE THE TRIBUNAL, THEREFORE, IN THE INTEREST OF JUSTICE THE ISSU E MAY BE SET ASIDE ITA NO.6187/M/08 A.Y: 05-06 3 TO THE FILE OF THE LD. CIT(A) WHO MAY DECIDE THE SAME AFRESH IN THE LIGHT OF THE ORDER OF THE TRIBUNAL FOR THE ASSESSMENT Y EAR 2004-05 WHICH WAS NOT OBJECTED TO BY THE LD. REPRESENTATIVE AP PEARING ON BEHALF OF THE ASSESSEE. 5. THAT BEING SO, AND KEEPING IN VIEW THE SUBMISSIONS OF THE PARTIES WE CONSIDER IT FAIR AND REASONABLE THAT THE MAT TER SHOULD GO BACK TO THE FILE OF THE LD. CIT(A) WHO SHALL DECIDE T HE SAME AFRESH IN THE LIGHT OF THE ORDER OF THE TRIBUNAL FOR THE ASSESSME NT YEAR 2004-05 AND ACCORDING TO LAW AFTER PROVIDING REASONABLE OPPORT UNITY OF BEING HEARD TO THE ASSESSEE AND ACCORDINGLY THE GROUNDS TAKEN B Y THE REVENUE ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT THE REVENUES APPEAL IS PARTLY ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 01.02.2010. SD/- SD/- (RAJENDRA SINGH) ( D.K. AGARWAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED:01.02.2010. JV. ITA NO.6187/M/08 A.Y: 05-06 4 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR E BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI. ITA NO.6187/M/08 A.Y: 05-06 5 DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 21.1.10 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 21.1.10 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 01.02.10 SR.PS/PS 7. FILE SENT TO THE BENCH CLERK 03.02.10 SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER