The Gujarat State Co-op. Consumer Federation Ltd., Ahmedabad V. Income Tax Officer, Ward-10(2), Ahmedabad

ITA 674/AHD/2016

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1329 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 29-04-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 17-03-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ANITA HARDASANI
• Assessee Lawyers: S N DIVETIA
• Keywords: Depreciation; Additional evidence; Cost of acquisition
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH BEFORE: S H RI PRAMOD KUMAR , ACCOUNTANT MEMBER AND SHR I S. S. GODARA , JUDICIAL MEMBER THE GUJ. STATE CO - OP. CONSUMER FEDERATION LTD. 2 ND FLOOR, HASUBHAI CHAMBER B/H, TOWN HALL, ELLISBRIDGE, AHMEDABAD - 380006 PAN: AAAAG0880H (APPELLANT) VS THE ITO, WARD - 10(2), NARAYAN CHAMBERS ELLISBRIDGE, AHMEDABAD (RESPONDENT) REVENUE BY : S MT. ANITA HARDASANI , SR. D . R. ASSESSEE BY: S H RI S.N. DIVETIA , A.R. DATE OF HEARING : 11 - 05 - 2 016 DATE OF PRONOUNCEMENT : 29 - 06 - 2 0 16 / ORDER P ER : S. S. GODARA , JUDICIAL MEMBER : - THIS ASSESSEE S APPEAL FOR A.Y. 2011 - 12 , AR IS ES FROM ORDER OF THE CIT(A) - 5, AHMEDABAD DATED 12 - 01 - 2016 IN APPEAL NO. CIT(A) - 5/ITO. WD. 10(2)/463/2014 - 15 , IN PROCEEDINGS UNDER SECTION 143(3) OF THE INCOM E TAX ACT, 1961; IN SHORT THE ACT . I T A NO . 674 / A HD/20 16 A S SESSMENT YEAR 2011 - 12 I.T.A NO. 674 /AHD/20 16 A.Y. 2011 - 12 PAGE NO THE GUJARAT STATE CO - OPERATIVE CONSUMER FEDERATION LTD. VS. ITO 2 2. THE ASSESSEE RAISES TWO SUBSTANTIVE GROUNDS IN THE INSTANT APPEAL IN CHALLENGING THE LOWER APPELLATE ORDER CONFIRMING ASSESSING OFFICER S ACTION IN DISALLOWING DEPRECIATION CLAIM AND THAT OF SECTION 80P DEDUCTION AMO UNTING TO RS. 5,42,200/ - AND RS. 12,69,633/ - ;RESPECTIVELY. 3. FACTS OF THE CASE ARE IN A NARROW COMPASS. THE ASSESSEE - A COOPERATIVE SOCIETY TRADES IN CONSUMER GOODS. IT CLAIMED THE IMPUGNED DEPRECIATION OF RS. 5,42,200/ - ON ITS OFFICE BUILDING. THE ASSESSING OFFICER WAS OF THE VIEW THAT THE SAME WAS RECEIVED FREE OF COST FROM M /S KHANDWALA INFRASTRUCTURE PVT. LTD. HE SOUGHT TO TREAT ITS COST OF ACQUISITION AS NIL THEREBY PRIMA FAC I E OBSERVING THAT THE IMPUGNED DEPRECIATION CLAIM ARISING @ 10% OF THE BUILDINGS MARKET VALUE OF RS. 54,22,000/ - WAS NOT ACCEPTABLE. THE ASSESSEE REPLIED THAT ITS OFFICE BUILDING HAD BEEN RECEIVED FREE OF COST IN LIEU OF RELINQUISHMENT OF TENANCY RIGHT IN FAVOUR OF THE ABOVE STATED ENTITY. THE ASSESSING OFFICER DISALLOWED THIS CONTENTION IN ASSESSMENT ORDER DATED 10 - 03 - 2014 BY HOLDING THAT THERE WAS NO EVIDENCE OF AN Y CONVEYANCE DEED, DATE OF POSSESSION AND TENANCY AGREEMENT ETC, SUPPORT OF THE RELINQUISHMENT CLAIM. HE ACCORDINGLY DISALLOWED THE DEPRECIATION CLAIM IN QUEST ION OF RS. 5,42,200/ - . THE C IT(A) CONFIRMS THE ASSESSING OFFICER S ACTION. 4. WE HAVE HEARD BOTH THE PARTIES. IT APPEARS THAT THE ASSESSEE HAD FILED COPY OF THE SALE DEED, RELINQUISH MENT AGREEMENT AND OPINION OF ITS CHARTERED ACCOUNT FIRM REGARDING TA XABILITY ARISING OUT OF I.T.A NO. 674 /AHD/20 16 A.Y. 2011 - 12 PAGE NO THE GUJARAT STATE CO - OPERATIVE CONSUMER FEDERATION LTD. VS. ITO 3 THE SAME IN COURSE OF THE LOWER APPELLATE PROCEEDINGS. THE CIT(A) OBSERVES IN PARA 3.2 THAT THE ASSESSEE HAD NOT PLACED ON RECORD ALL THESE DOCUMENTS DURING SCRUTINY AND NO PRAYER WAS MADE UNDER 46A OF THE INCOME TAX RULES IN COURS E OF THE LOWER APPELLATE PROCEEDING S . HE DOES NOT COMMENT ANYTHING QUA RELEVANCY OF ALL THESE DOCUMENTS . THE ASSESSEE SUBMITS BEFORE US THAT ITS PAPER BOOKS COMPRISES OF AGREEMENT DATED 27 - 12 - 2010 ALONG WITH MOU DATED 01 - 11 - 2010, SALE DEED OF ITS OFFICE PREMISES AND IRREVOCABLE POWER OF ATTORNEY DATED 23 - 08 - 2010 SO AS TO PROVE THAT IT HAD ACQUIRED THE OFFICE BUILDING IN QUESTION FROM THE SELLER IN FURTHERANCE RELINQUISHMENT OF TENANCY RIGHT S. LEARNED DEPARTMENTAL R EPRESENTATIVE FAILS TO DISPUTE THE RELEV ANCY THEREOF QUA THE FIRST ISSUE ARISING IN THE INSTANT APPEAL. THE FACTS ALSO REMAINS THAT BOTH THE LOWER AUTHORITIES HAVE NOT BEEN ABLE TO VERIFY CORRECT NESS THEREOF IN ASSESSMENT AS WELL AS IN LOW ER APPELLATE PROCEEDINGS. THE C IT(A) HAS RATHER ADOPTED A HYPER TECHNICAL APPROACH THAT THE ASSESSEE HA S NOT MADE ANY PRAYER FOR ADMISSION OF ADDITIONAL EVIDENCE UNDER RULE 46A OF THE INCOME TAX RULES. HE DOES NOT OBSERVE ANY WHERE THAT THE ASSESSEE HAS GIVEN ITS ADDITIONAL EVIDENCE. BE THAT AS IT MAY, WE DEEM IT APPROPRIATE TO REMIT THE ISSUE BACK TO THE ASSESSING OFFICER FOR RE - ADJUDICATION AFRESH AS PER LAW WITHOUT BEING INFLUENCED BY HIS EARLIER FINDINGS. THIS GROUND IS ACCEPTED FOR STATISTICAL PURPOSES. 5 . WE COME TO THE NEXT ISSUE SECTION 80P DEDU CTION AMOUNTING T O RS. 12,69,663/ - . THE CI T(A) OBSERVES THAT THERE IS NO SUCH DISALLOWANCE EMANATING FROM THE ASSESSMENT ORDER. WE AGREE WITH I.T.A NO. 674 /AHD/20 16 A.Y. 2011 - 12 PAGE NO THE GUJARAT STATE CO - OPERATIVE CONSUMER FEDERATION LTD. VS. ITO 4 THIS FINDING SINCE THE ASSESSING OFFICER HAS NOT MADE ANY DISALLOWANCE APART FROM THAT ON THE ISSUE OF DEPRECIAT ION ADJUDICATED HEREINABOVE. THIS GROUND ACCORDINGLY FAILS. 6. THIS ASSESSEE S APPEAL IS PARTLY ALLOWED FOR STATISTICAL PURPOSE S . ORDER PR ONOUNCED IN THE OPEN C OURT ON 29 - 06 - 201 6 SD/ - SD/ - ( PRAMOD KUMAR ) ( S. S. GODARA ) ACCOU NTANT MEMBER JUDICIAL MEMBER AHMEDABAD : DATED 29 /06 /2016 AK / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,