ASST CIT CIR 4, THANE V. SRI SWASTIK HOMELAND AGENCIES P.LTD, THANE

ITA 7487/MUM/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8712 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-01-2017
• Appeal Filed By: Department
• Bench Allotted: E
• Next Hearing Date: 17-01-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 19-12-2013
• Court: TRIBUNAL
• Department Lawyers: B S BIST
• Keywords: Depreciation; Revenue expenditure; Capital expenditure
• Section: 32

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) & SHRI PAWAN SINGH (JM) I.T.A. NO. 7487 /MUM/20 13 (ASSESSMENT YEAR 20 07 - 08 ) ACIT CIRCLE 4 AROOM NO. 2 6 TH FLOOR ASHAR IT PARK WIE ROAD NO. 16Z THANE VS. M/S. SRI S WASTIK HOME LAND AGENCIES (P) LTD. FUN FIESTA MULTIPLEX SRI PRASTHA COMPLEX NALLSOPARA WEST THANE ( APPELLANT ) ( RESPONDENT ) PAN NO . AAJCS4373E ASSESSEE BY NONE DEPARTMENT BY S HRI B.S. BIST DATE OF HEARING 1 7 .1 . 201 7 DATE OF PRONOUNCEMENT 1 7 . 1 . 201 7 O R D E R PER B.R. BASKARAN (AM) : - THE REVENUE HAS FILED THIS APPEAL CHALLENGING THE ORDER DATED 14.10.2013 PASSED BY THE LEARNED CIT(A) - THANE AND IT RELATES TO A.Y. 2007 - 08. 2. THE ONLY ISSUE URGED IN THIS APPEAL BY THE REVENUE IS WHETHER T HE LEARNED CIT(A) WAS JUSTIFIED IN DELETING THE DISALLOWANCE MADE U/S. 40(A)(IA) OF THE I.T. ACT. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE EVEN THOUGH NOTICE OF HEARING WAS SENT BY REGISTERED POST ON MORE THAN ONE OCCASION. HENCE, WE PROCEED TO DISPOS E OF THE APPEAL EX - PARTE, WITHOUT PRESENCE OF THE ASSESSEE. 4. WE HEARD LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE RECORD. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF RUNNING A MULTIPLEX CINEMA THEATRE AT NALLASOPARA. THE ASSESSING OFFICER NOTICE D THAT THE ASSESSEE HAS INCURRED CAPITAL EXPENDITURE OF ` 7.79 CRORES DURING YEAR UNDER CONSIDERATION. THE M/S. SRI SWASTIK HOME LAND AGENCIES (P) LTD. 2 ASSESSING OFFICER FURTHER NOTICED THAT THE ASSESSEE HAS GIVEN CONTRACT WORK TO A SISTER CONCERN NAME D M/S. SHRI SWASTIK LAND DEVELOPMENT CORPORATION AND VALUE OF CONTRACT SO GIVEN WAS ` 4.50 CRORES. THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE DID NOT DEDUCT TAX AT SOURCE FROM THE ABOVE SAID PAYMENT . SINCE THE ABOVE SAID PAYMENT HAS BEEN CAPITALIZED, THE AO PROPOSED TO DISALLOW DEPRECIATION ON THE ABOVE SAID AMOUNT BY INVOKING PROVISIONS OF SECTION 40(A)(IA) OF THE ACT. THE ASSESSEE SUBMITTED THAT IT HAS NOT CLAIMED THE ABOVE SAID PAYMENT AS REVENUE EXPENDITURE AND HENCE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT WOULD NOT APPLY. THE SA ID EXPLANATIO N DID NOT FIND FAVOUR WITH THE ASSESSING OFFICER . ACCORDINGLY THE ASSESSING OFFICER DISALLOWED DEPRECIATION TO THE TUNE OF ` 45 LAKHS U/S 40(A)(IA) OF THE ACT ON THE ABOVE SAID CONTRACT AMOUNT OF ` 4.50 CRORES. THE LEARNED CIT(A), HOWEVER, DELETED THE ADD ITION BY FOLLOWING THE DECISION RENDERED BY DELHI BENCH OF THE ITAT IN THE CASE OF SMS DEMAG (P) LTD. VS. DCIT (132 TTJ 498). THE REVENUE IS AGGRIEVED BY THE SAID DECISION OF THE LEARNED CIT(A). 5. WE NOTICED THAT DELHI BENCH OF THE ITAT , IN THE ABOVE SA ID CASE, HAS EXPRESSED THE VIEW THAT THE DEPRECIATION CANNOT BE DISALLOWED ON THE GROUND THAT THE ASSESSEE DID NOT DEDUCT TAX AT SOURCE AT THE TIME OF INCURRING THE CAPITAL EXPENDITURE AND THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT ARE NOT APPLICABLE F OR THE CLAIM OF DEDUCTION U/S. 32 OF THE ACT. 6. SINCE THE LEARNED CIT(A) HAS FOLLOWED THE DECISION RENDERED BY THE COORDINATE BENCH OF THE DELHI ITAT, REFERRED SUPRA, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER PASSED BY THE LEARNED CIT(A). 7 . IN THE RESULT, APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 17 . 1 .201 7. SD/ - SD/ - (PAWAN SINGH ) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMB AI ; DATED : 1 7 / 1 / 20 1 7 M/S. SRI SWASTIK HOME LAND AGENCIES (P) LTD. 3 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) PS ITAT, MUMBAI