Sri.P.Srinivas, Calicut V. Asstt. Director of Incometax(Intl.Taxation),Kochi, Cochin

ITA 69/COCH/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2513 (ITAT-COCHIN)
• Duration Of Justice: 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-06-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 26-06-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 07-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Assessee Lawyers: IYPE MATHEW
• Keywords: Depreciation

Judgement Text

1 ITA NO.69 TO 73/COCH/2013 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) I.T.A NO. 69/COCH/2013 - A.Y. 2004-05 I.T.A NO. 70/COCH/2013 - A.Y. 2005-06 I.T.A NO. 71/COCH/2013 - A.Y. 2006-07 I.T.A NO. 72/COCH/2013 - A.Y. 2007-08 I.T.A NO. 73/COCH/2013 - A.Y. 2009-10 SHRI P SHRINIVAS VS A.C.I.T. (INTL.TAXATION) SAMS PROPERTY DEVELOPERS & HOTELS P LTD KOCHI CHAKKORATHUKULAM KOZHIKODE 673 006 PAN :AOXPS9241Q (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI IYPE MATHEW RESPONDENT BY : SMT. S VIJAYAPRABHA DATE OF HEARING : 26-06-2013 DATE OF PRONOUNCEMENT: 28-06-2013 O R D E R PER N.R.S. GANESAN (JM) ALL THESE APPEALS OF THE ASSESSEE ARE DIRECTED AGA INST THE COMMON ORDER PASSED BY THE CIT(A)-III, KOCHI DATED 30-11-2012 FOR THE ASSESSMENT YEARS 2004-05, 2005-06, 2006-07, 200 7-08 AND 2 ITA NO.69 TO 73/COCH/2013 2009-10. THEREFORE, WE HEARD ALL THE APPEALS TOGET HER AND DISPOSE OF THE SAME BY THIS COMMON ORDER. 2. SHRI IYPE MATHEW, THE LD.REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE ONLY ISSUE ARISES FOR CONSIDERAT ION IS ALLOWANCE OF DEPRECIATION WHILE ESTIMATING THE PROFIT. ACCORDIN G TO THE LD.REPRESENTATIVE, WHILE ESTIMATING THE PROFIT FROM CINEMA THEATRE, THE ASSESSING OFFICER HAS NOT ALLOWED DEPRECIATION. RE FERRING TO THE CIRCULAR ISSUED BY CBDT IN CIRCULAR NO.29D(XIX-14) DATED 31-08- 1965, THE LD.REPRESENTATIVE SUBMITTED THAT WHEREVER THE PROFIT WAS ESTIMATED AND THE PRESCRIBED PARTICULARS ARE FURNIS HED BY THE TAXPAYER, DEPRECIATION SHALL BE WORKED OUT SEPARATE LY. THEREFORE, ACCORDING TO THE LD.REPRESENTATIVE, THE ESTIMATION OF PROFIT SHALL BE SUBJECT TO DEPRECIATION ALLOWANCE. REFERRING TO TH E ORDER OF THE CIT(A), THE LD.REPRESENTATIVE POINTED OUT THAT THE CIT(A) FOLLOWED HIS EARLIER ORDER FOR THE ASSESSMENT YEAR 2008-09. THE LD.REPRESENTATIVE SUBMITTED THAT THE ASSESSEE HAD FILED APPEAL AGAINS T THE ORDER OF THE CIT(A) FOR THE ASSESSMENT YEAR 2008-09 BEFORE THIS TRIBUNAL. THIS TRIBUNAL IN ITA NO.320/COCH/2012 ORDER DATED 28-02- 2013 FOUND THAT IN VIEW OF THE CIRCULAR OF THE CBDT DATED 31-08-196 5 WHEREVER THE 3 ITA NO.69 TO 73/COCH/2013 PROFIT WAS ESTIMATED, THE DEPRECIATION SHALL BE WOR KED OUT SEPARATELY AND IT HAS TO BE ALLOWED WHILE ESTIMATING THE NET P ROFIT. ACCORDINGLY, THE MATTER WAS REMITTED BACK TO THE FILE OF THE ASS ESSING OFFICER TO RECONSIDER THE ISSUE AFRESH WITH A DIRECTION TO WOR K OUT THE DEPRECIATION ON THE BASIS OF THE MATERIAL THAT MAY BE FURNISHED BY THE ASSESSEE. 3. ON THE CONTRARY, SMT. VIJAYAPRABHA, THE LD.DR SU BMITTED THAT WHEN THE PROFIT IS ESTIMATED ALL THE EXPENSES AND O THER ALLOWANCES INCLUDING DEPRECIATION ARE DEEMED TO HAVE BEEN ALLO WED. MOREOVER, FOR THE ASSESSMENT YEAR 2008-09, THE ASSESSEE HAD N OT FURNISHED ANY PARTICULARS, THEREFORE, THIS TRIBUNAL DIRECTED THE ASSESSING OFFICER TO WORK OUT THE DEPRECIATION ON THE BASIS OF THE MA TERIAL THAT MAY BE FURNISHED BY THE ASSESSEE. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE CIT(A), BY FOLLOWING HIS ORDER FOR THE ASSESSMENT YEAR 2008-09 , CONFIRMED THE ESTIMATION OF PROFIT. THE VERY SAME ORDER WAS SUBJ ECT MATTER OF APPEAL BEFORE THIS TRIBUNAL IN ITA NO.320/COCH/2012 . THIS TRIBUNAL, 4 ITA NO.69 TO 73/COCH/2013 AFTER CONSIDERING THE CLAIM OF THE ASSESSEE AND THE CIRCULAR ISSUED BY THE CBDT DATED 31-08-1965 FOUND THAT THE DEPRECIATI ON SHALL BE WORKED OUT SEPARATELY AND THE SAME HAS TO BE DEDUCT ED FROM THE NET PROFIT ESTIMATED. THIS TRIBUNAL HAS ALSO FOUND THA T ONCE THE NET PROFIT WAS ESTIMATED, IT HAS TO BE MADE SUBJECT TO ALLOWAN CE OF DEPRECIATION IN VIEW OF THE CIRCULAR OF THE CBDT DATED 31-08-196 5. SINCE THE LD.DR CONTENDED BEFORE THIS TRIBUNAL FOR THE ASSESS MENT YEAR 2008- 09 THAT THE ASSESSEE HAS NOT FURNISHED ALL THE PART ICULARS REQUIRED FOR COMPUTING THE DEPRECIATION, THE MATTER WAS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER TO COMPUTE THE DEPRECIATION I N THE LIGHT OF THE MATERIAL THAT MAY BE FILED BY THE TAXPAYER. NOW SI NCE THE ISSUE BEING IDENTICAL TO THAT OF ASSESSMENT YEAR 2008-09, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ORDER OF THIS TRIBUNAL DATED 28-02-2013 IN ITA NO.320/COCH/2012 IS EQUALLY APPLICABLE FOR THE ASSESSMENT YEARS UNDER CONSIDERATION ALSO. THEREFORE, BY FOLLOWING THE ORDER OF THIS TRIBUNAL FOR THE ASSESSMENT YEAR 2008-09 AND FOR TH E REASONS STATED THEREIN, THE ORDERS OF THE LOWER AUTHORITIES ARE SE T ASIDE AND THE ISSUE IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFIC ER. THE ASSESSING OFFICER SHALL RECONSIDER THE ISSUE AFRESH IN THE LI GHT OF THE MATERIAL THAT MAY BE FILED BY THE ASSESSEE AND THEREAFTER COMPUTE THE 5 ITA NO.69 TO 73/COCH/2013 DEPRECIATION IN ACCORDANCE WITH LAW AFTER GIVING RE ASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. 5. IN THE RESULT, ALL THE APPEALS OF THE TAXPAYER A RE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 28 TH JUNE, 2013. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 28 TH JUNE, 2013 PK/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, C OCHIN BENCH