DCIT 2(3), MUMBAI V. RAYMOND LTD, MUMBAI

ITA 750/MUM/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4954 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 03-06-2013
• Assessment Year: 2001-2002
• Appeal Filed On: 03-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: Y P TRIVEDI
• Keywords: Depreciation; Unabsorbed depreciation
• Section: 143(3); 263

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D MUMBAI . . , , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI RAJENDRA, ACCOUNTANT MEMBER . / ITA NO.750/MUM/2012 ! ! ! ! ' ' ' ' / ASSESSMENT YEAR 2001-02 THE ACIT -2(3), ROOM NO.552, 5 TH FLOOR, AAYKAR BHAVAN, MK ROAD, MUMBAI 400 020. ! ! ! ! / VS. M/S. RAYMOND LTD., NEW HIND HOUSE, NAROTTAM MORARJEE MARG, BALLARD ESTATE, MUMBAI 400001 # ./ $ ./ PAN/GIR NO. : AAACR 4896A ( #% / APPELLANT ) .. ( &'#% / RESPONDENT ) #% ( / APPELLANT BY: SHRI SANTOSH KUMAR &'#% ) ( / RESPONDENT BY : SHRI Y.P.TRIVEDI & MS. USHA DALAL ! ) * / DATE OF HEARING : 16/09/2013 +,' ) * / DATE OF PRONOUNCEMENT : 16/09/2013 - / O R D E R PER I.P.BANSAL, J.M THIS IS AN APPEAL FILED BY THE REVENUE. IT IS DIR ECTED AGAINST THE ORDER PASSED BY CIT(A)-6,MUMBAI DATED 1/11/2011 FOR ASSE SSMENT YEAR 2001-02. THE GROUNDS OF APPEAL READ AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN ALLOWING RELIEF TO THE ASSESSEE TO THE EXTENT IMPUGNED IN THE GROUNDS ENUMERATED BELOW: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN NOT CHARTING OF TAX @ 30% ON ADDITION OF RS.72,38,2 58/- AS DONE BY THE AO AS PER DIRECTION IN ORDER U/S. 263 OF CIT-2, MUMBAI. . / ITA NO.750/MUM/2012 ! ! ! ! ' ' ' ' / ASSESSMENT YEAR 2001-02 2 2. FOR THESE AND OTHER GROUNDS THAT MAY BE URGED A T THE TIME OF HEARING, THE DECISION OF THE CIT(A) MAY BE SET ASIDE AND THAT OF THE AO RESTORED. 2. THE IMPUGNED ASSESSMENT IS A RESULT OF ORDER P ASSED BY LD. CIT UNDER SECTION 263 OF THE INCOME TAX ACT 1961 (THE ACT). IT IS AN ASSESSMENT ORDER DATED 7/6/2010 PASSED UNDER SECTION 143(3) R.W.S. 2 63 OF THE ACT. 3. DURING THE COURSE OF HEARING IT WAS BROUGHT TO OUR NOTICE BY LD. A.R OF THE ASSESSEE THAT ORDER PASSED BY LD. CIT UNDER SEC TION 263 WAS HELD TO BE INFRUCTUOUS BY THE ORDER OF THE TRIBUNAL DATED 28/5 /2012 IN ITA NO.4014/MUM/2010. THEREFORE, HE PLEADED THAT SIN CE THE ORDER PASSED UNDER SECTION 263 HAS BEEN HELD TO BE INFRUCTUOUS AND THE IMPUGNED ASSESSMENT ORDER DOES NOT HAVE ANY LEGS TO STAND. 4. LD. DR COULD NOT CONTROVERT THE SUBMISSIONS MADE BY LD. AR. 5. WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTENT IONS HAVE CAREFULLY BEEN CONSIDERED. THE ORDER UNDER SECTION 263 WAS THE SU BJECT MATTER OF APPEAL FILED BY THE ASSESSEE BEFORE THE TRIBUNAL WHICH IS DECID ED VIDE AFOREMENTIONED ORDER DATED 28/5/2012 WITH THE FOLLOWING OBSERVATIO NS: 2. WE HAVE HEARD THE PARTIES. THE LD. COUNSEL SUBM ITS THAT THE A.O. HAS REOPENED THE ASSESSMENT ORDER TO WITHDRAW THE ALLEG ED INCORRECT SET OFF OF UNABSORBED DEPRECIATION AGAINST THE CURRENT INCOME OF THE HOUSE PROPERTY AND ALSO TO EXAMINE THE DEDUCTION ALLOWED U/S.35D. HE S UBMITS THAT THE ASSESSMENT ORDER PASSED U/S. 143(3) R.W.S. 147 WAS SUBJECT MA TTER OF THE APPEAL BEFORE THE FIRST APPELLATE AUTHORITY AND FIRST APPELLATE AUTHO RITY DECIDED BOTH THE ISSUES IN FAVOUR OF THE ASSESSEE. THE REVENUE CHALLENGED THE ORDER OF THE FIRST APPELLATE AUTHORITY BEFORE THE TRIBUNAL BY WAY OF APPEAL BEIN G ITA NO.6895/M/2010 AND VIDE ORDER DATED 18.04.2012 THE TRIBUNAL CONFIRMED THE ORDER OF THE LD. CIT(A). HE SUBMITS THAT ON IDENTICAL REASONING THE LD. CIT, MUMBAI SET ASIDE THE REASSESSMENT ORDER. NOW, AS THE ADDITIONS MADE IN T HE REASSESSMENT ORDER HAVE BEEN DELETED OR DECIDED IN FAVOUR OF THE ASSESSEE, THE ORDER PASSED BY THE LD. CIT, MUMBAI ON THE SAME REASONING BECOME IN FRUCTUO US. THE LD. COUNSEL ALSO FILED COPY OF THE TRIBUNAL ORDER IN THE ASSESSEES OWN CASE IN ITA NO.6895/MUM/2010 DATED 18.04.2012. WE HAVE ALSO HEA RD THE LD. D.R. . / ITA NO.750/MUM/2012 ! ! ! ! ' ' ' ' / ASSESSMENT YEAR 2001-02 3 3. WE FIND THAT THE REASONS FOR REOPENING OF THE AS SESSMENT FOR THE A.Y. 2001-02 ARE THE REASONS FOR EXERCISING THE JURISDICTION U/S .263 ARE ON THE IDENTICAL ISSUES. AS THE ISSUES WHICH WERE SUBJECT MATTER OF THE REOP ENING ASSESSMENT HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY LD. CIT(A) AND TRIBUNAL HAS ALSO CONFIRMED THE SAME AND THE ORDER PASSED BY THE LD. CIT U/S.26 3 DATED 25.03.20 10 BECOMES INFRUCTUOUS. WE, THEREFORE, ALLOW THE APPEA L FILED BY THE ASSESSEE. 4. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 2 8TH MAY, 2012. IT CAN BE SEEN FROM THE AFOREMENTIONED OBSERVATIONS THAT THE ORDER PASSED BY LD. CIT UNDER SECTION 263 WAS HELD TO BE INFRUCTUOU S. THE IMPUGNED ASSESSMENT ORDER IS PASSED UNDER THE DIRECTIONS ISS UED BY CIT UNDER SECTION 263. SINCE THE VERY BASIS OF IMPUGNED ORDER DOES NOT SUBSIST, THE APPEAL FILED BY THE REVENUE HAS ALSO BECOME INFRUCTUOUS AND LIAB LE FOR DISMISSAL. ACCORDINGLY, IT IS DISMISSED. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16/09/2013 - ) +,' / 0!1 16/09/2013 , ) 2 3 SD/- SD /- ( / RAJENDRA ) ( . . / I.P. BANSAL ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; 0! DATED 16/09/2013 - - - - ) )) ) &*45 &*45 &*45 &*45 65'* 65'* 65'* 65'* / COPY OF THE ORDER FORWARDED TO : 1. #% / THE APPELLANT 2. &'#% / THE RESPONDENT. 3. 7 ( ) / THE CIT(A)- 4. 7 / CIT 5. 582 &*! , , / DR, ITAT, MUMBAI 6. 29 : / GUARD FILE. -! -! -! -! / BY ORDER, '5* &* //TRUE COPY// ; ;; ; / < < < < (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI