ASST CIT CIR 1, KALYAN V. ASB INTERNATIONAL P. LTD, AMBERNATH

ITA 7035/MUM/2013

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0867 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 1 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-01-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 19-05-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 03-12-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAM TIWARI
• Keywords: Depreciation
• Section: 10B; 11

Judgement Text

A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO. 7034/ MUM/2013 ./ I.T.A. NO. 7035/ MUM/2013 ( / ASSESSMENT YEAR: 2004 - 05 & 2006 - 07 ) ACIT - CIR - 1 1 ST FLOOR, MOHAN PLAZA, WAYALE NAGAR, KHADAKPADA, KALYAN / V. ASB INTERNATIONAL PRIVATE LTD, E - 9, ADDL AMBERNATH INDL . AREA , MIDC ANAND NAGAR AM BERNATH ./ PAN : AAACA8424F ( / APPELLANT ) .. ( / RESPONDENT ) REVENUE BY : SHRI. RAM TIWARI ASSESSEE BY: SHRI. GIRISH DAVE CORRIGENDUM PER RAMIT KOCHAR, ACCOUNTANT MEMBER THIS CORRIGENDUM APPLICATION IS FILED BY THE ASSESSEE HIGHLIGHT ING THAT AT PAGE NO. 19 OF THE COMMON ORDER PASSED BY THE TRIBUNAL IN ITA NO. 7034/MUM/2013 AND 7035/MUM/2013 FOR A.Y 2004 - 05 AND 2006 - 07 RESPECTIVELY VIDE ORDERS DATED 19.12.2016 , AN ERROR HAS CREPT IN THE SAID TRIBUNAL ORDER FOR AY 2004 - 05 AND 2006 - 07 , AS UNDER : - W E FIND THAT THE ASSESSEE HAS NOT COME IN APPEAL WITH RESPECT TO THE CIT( A) HOLDING AGAINST THE ASSESSEE WHEREIN THE ASSESSMENT ORDER OF THE AO WAS CONFIRMED WITH RE SPECT TO ADJUSTMENTS OF THE BROUGHT FORWARD DEPRECIATION OF THE ELIGIBLE UNIT AGAINST CURRENT YEAR PROFITS OF THE ELIGIBLE UNIT WHILE COMPUTING DEDUCTION U/S 10B OF THE ACT, AS THE LEARNED CIT(A) HAS HELD THAT BROUGHT FORWARD DEPRECIATION OF THE ELIGIBLE U NIT HAS TO BE SET OFF AS PER THE PROVISIONS OF SECTION 32(2) OF THE ACT AS THE SAME BECOMES CURRENT YEARS DEPRECIATION WHILE COMPUTING THE PROFITS FROM BUSINESS OF PROFESSION FOR THE PURPOSE OF WORKING OUT DEDUCTIONS UNDER SECTION 10B OF THE ACT. I.T.A. NO. 7034 & 7034/MUM/2013 2 THE ASSE SSEE PRAYED THAT AN CORRIGENDUM APPLICATION HAS BEEN MADE BY IT TO MAKE PRAYER BEFORE THE TRIBUNAL TO CORRECT THE SAID ERROR BY DELETING THE SAID PARA IN THE AFORESAID ORDER OF THE TRIBUNAL DATED 19.12.2016 AS THE ASSESSEE HAS FILED AN APPEAL FOR RELEVANT YEARS ON BEING AGGRIEVED BY THE APPELLATE ORDER OF THE LEARNED CIT - A FOR A.Y 2004 - 05 AND 2006 - 07 , WHICH WAS ALREADY ADJUDICATED BY THE TRIBUNAL IN ITA NO. 7089/MUM/2013 AND 7090/MUM/2013 FOR A.Y 2004 - 05 AND 2006 - 07 , VIDE COMMON ORDERS DATED 18.06.2014 , WHICH APPELLATE ORDER OF THE TRIBUNAL WAS DULY SUBMITTED BEFORE THE TRIBUNAL AS THE TIME OF ORIGINAL HEARING OF THE APPEALS IN ITA NO. 7035 & 7036/MUM/2013 FOR AY 2004 - 05 AND 2006 - 07 AS WELL THE SAID ORDER OF THE TRIBUNAL IN ITA NO. 7089 & 7090 / MUM/201 3 FOR AY 2004 - 05 AND 2006 - 07 IS NOW AGAIN PLACED ON RECORD ALONG WITH THIS CORRIGENDUM APPLICATION . 2.THE LD. DR ON THE OTHER HAND FAIRLY SUBMITTED THAT THE MATTER MAY BE DECIDED BY THE TRIBUNAL IN ACCORDANCE WITH LAW . 3. W E HAVE CONSIDERED THE CORRIGENDUM APPLICATION DATED 26.04.2017 FILED BY THE ASSESSEE , MATERIAL ON RECORD ALONG WITH THE APPELLATE ORDER OF THE TRIBUNAL IN ITA NO. 7034/MUM/2013 AND 7035/MUM/2013 DATED 19.12.2016 PASSED BY THE TRIBUNAL FOR AY 2004 - 05 AND 20 06 - 07 WHILE ADJUDICATING REVENUE APPEAL , WHERE IN THE APPEAL FILED BY THE R EVENUE WAS DISMISSED . W E HAVE OBSERVED THAT AT PAGE NO. 19 OF THE AFORESAID TRIBUNALS COMMON ORDER DATED 19 - 12 - 2106, THE TRIBUNAL WHILE PASSING THE APPELLATE ORDER HAS COMMENTED AS UNDER: - W E FIND THAT THE ASSESSEE HAS NOT COME IN APPEAL WITH RESPECT TO THE CIT(A) HOLDING AGAINST THE ASSESSEE WHEREIN THE ASSESSMENT ORDER OF THE AO WAS CONFIRMED WITH RESPECT TO ADJUSTMENTS OF THE BROUGHT FORWARD DEPRECIATION OF THE ELIGIBLE UNIT AGAINST CURRENT YEAR PROFITS OF THE ELIGIBLE UNIT WHILE COMPUTING DEDUCTION U/S 10B OF THE ACT, AS THE LEARNED CIT(A) HAS HELD THAT BROUGHT FORWARD DEPRECIATION OF THE ELIGIBLE UNIT HAS TO BE SET OFF AS PER THE PROVISIONS OF SECTION 32(2 ) OF THE ACT AS THE SAME BECOMES CURRENT YEARS DEPRECIATION WHILE COMPUTING THE PROFITS FROM BUSINESS OF PROFESSION FOR THE PURPOSE OF WORKING OUT DEDUCTIONS UNDER SECTION 10B OF THE ACT. THE A SSESSEE HAS PLACED ON RECORD EVIDENCES TO SUPPORT THAT IT IN - F ACT CONTESTED THE ISSUES OF ADJUSTMENT OF BROUGHT FORWARD DEPRECIATION OF THE ELIGIBLE UNIT AGAINST CURRENT YEAR PROFITS OF THE ELIGIBLE UNIT WHILE COMPUTING I.T.A. NO. 7034 & 7034/MUM/2013 3 DEDUCTION U/S 10B WHICH WAS DECIDED AGAINST THE ASSESSEE BY LD. CIT - A FOR A.Y 2004 - 05 AND 2006 - 07 AND WHICH WAS LATER ADJUDICATED BY THE TRIBUNAL IN ITA NO. 7089/MUM/2013 AND 7090/MUM/2013 VIDE ORDERS DATED 18.06.2014 FOR A.Y 2004 - 05 AND 2006 - 07 IN FAVOUR OF THE ASSESSEE AND IT CANNOT BE SAID THAT THE SAID ISSUE WAS NOT RAISED BY THE ASSESSEE IN APPEAL FILED BEFORE THE TRIBUNAL AND TO THIS EXTENT AN ERROR HAS CREPT IN THE ORDER OF THE TRIBUNAL DATED 19 - 12 - 2016 . THUS ON PERUSAL OF THE ENTIRE RECORDS BEFORE US AS WELL RELEVANT ORDER OF THE TRIBUNAL AND LEARNED CIT(A) , WE FIND MERIT IN THE CORRIGENDUM APP LICATION FILED BY THE ASSESSEE AND WE ORDER DELETION OF T HE FOLLOWING PARA AT PAGE NO. 19 OF THE AFORESAID COMMON APPELLATE ORDER OF THE TRIBUNAL IN ITA NO. 7034/MUM/2013 AND 7035/MUM/2013 VIDE ORDERS DATED 19.12.2016 WHICH INFACT WAS AN FACTUAL ERROR IN THE TRIBUNAL ORDER , WHEREIN WE ORDER DELETION OF THE FOLLOWING PARA AT PAGE NO. 19 OF THE AFORESAID COMMON ORDER OF THE TRIBUNAL FOR AY 2004 - 05 AND 2006 - 07 DATED 19 - 12 - 2016 : - WE FIND THAT THE ASSESSEE HAS NOT COME IN APPEAL WIT H RESPECT TO THE CIT(A) HOLDING AGAINST THE ASSESSEE WHEREIN THE ASSESSMENT ORDER OF THE AO WAS CONFIRMED WITH RESPECT TO ADJUSTMENTS OF THE BROUGHT FORWARD DEPRECIATION OF THE ELIGIBLE UNIT AGAINST CURRENT YEAR PROFITS OF THE ELIGIBLE UNIT WHILE COMPUTING DEDUCTION U/S 10B OF THE ACT, AS THE LEARNED CIT(A) HAS HELD THAT BROUGHT FORWARD DEPRECIATION OF THE ELIGIBLE UNIT HAS TO BE SET OFF AS PER THE PROVISIONS OF SECTION 32(2) OF THE ACT AS THE SAME BECOMES CURRENT YEARS DEPRECIATION WHILE COMPUTING THE PROF ITS FROM BUSINESS OF PROFESSION FOR THE PURPOSE OF WORKING OUT DEDUCTIONS UNDER SECTION 10B OF THE ACT. THUS IN VIEW OF OUR ABOVE DISCUSSIONS , CORRIGENDUM APPLICATION FILED BY THE ASSESSEE IS ALLOWED IN TERMS OF OUR OBSERVATION AS ABOVE. WE ORDER ACCORDI NGLY. ORDER PRONOUNCED IN THE OPEN COURT ON 15 .01.2018 15 .01.2018 SD/ - SD/ - ( MAHAVIR SINGH) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 15 .01.2018 I.T.A. NO. 7034 & 7034/MUM/2013 4 NISHANT VERMA SR. PRIVATE SECRETARY COPY TO 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) CONCERNED, MUMBAI 4 . THE CIT - CONCERNED, MUMBAI 5 . THE DR BENCH, E 6 . MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI