THE DY CIT RG 7(2), MUMBAI V. M/S. SUMAN MOTELS LTD, MUMBAI

ITA 952/MUM/2008

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 49078 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 4 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-06-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 13-06-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 08-02-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B JAYA KUMAR
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E : MUMBAI BEFORE SHRI R.S. PADVEKAR,(JM) AND SHRI RAJENDRA S INGH ,(AM) ITA NO.952/MUM/2008 ASSESSMENT YEAR :2003-04 DY. COMMISSIONER OF INCOME TAX -7(2) ROOM NO.624, 6 TH FLOOR AAYAKAR BHAVAN, M.K. ROAD MUMBAI-400 020. ..( APPELLANT ) VS. M/S. SUMAN MOTELS LTD. 208, PARSHAV CHAMBERS, 19/21, ISSAJI STREET, VADGADI MUMBAI-03. ..( RESPONDENT ) P.A. NO. (AAACS 9164 Q) APPELLANT BY : SHRI B. JAYA KUMAR RESPONDENT BY : NONE O R D E R PER RAJENDRA SINGH (AM). THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 15.11.2007 OF CIT(A) FOR THE ASSESSMENT YEAR 2003-0 4. THE REVENUE HAS DISPUTED THE DECISION OF CIT(A) IN ALLOWING DEPRECI ATION. IT HAS ALSO CHALLENGED THE ORDER OF CIT(A) ON THE GROUND THAT CIT(A) ADMITTED THE APPEAL WITHOUT CONDONING THE DELAY IN FILING OF THE APPEAL. AT THE TIME OF HEARING OF THE APPEAL NO ONE APPEARED ON BEHALF OF THE ASSESSEE TO REPRESENT THE CASE. ON EARLIER OCCASIONS ALSO THE ASSESSEE H AS ONLY BEEN SEEKING ADJOURNMENT WITHOUT PARTICIPATING IN THE PROCEEDING S. THIS TIME NEITHER SOMEONE APPEARED NOR ADJOURNMENT APPLICATION WAS RE CEIVED. WE, THEREFORE, PROCEED TO DECIDE THE CASE ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND AFTER HEARING THE LD. DR. 2. LD. DR SUBMITTED THAT THE ASSESSMENT DATED 21.2. 06 HAD BEEN SERVED ON THE ASSESSEE ON 27.02.2006 AND APPEAL WAS REQUIR ED TO BE FILED WITHIN A ITA NO.952/M/08 A.Y:03-04 2 PERIOD OF 30 DAYS FROM THE DATE OF RECEIPT OF THE O RDER. HOWEVER, APPEAL WAS FILED BY THE ASSESSEE ON 31.8.2006. THE CIT(A) DID NOT PASS ANY ORDER CONDONING THE DELAY AND THEREFORE, ADMITTING THE AP PEAL FOR HEARING IS NOT IN ORDER. AS REGARD THE MERIT OF ALLOWABILITY OF DEP RECIATION THE LD. DR SUBMITTED THAT THE CIT(A) WAS NOT JUSTIFIED IN DIRE CTING TO ALLOW DEPRECIATION WHEN THE ASSESSEE WAS NOT CO-OPERATING IN THE VALU ATION OF PROPERTY BEFORE DVO. 3. WE HAVE PERUSED THE RECORDS AND CONSIDERED THE M ATTER CAREFULLY. THE ASSESSEE HAS CLAIMED DEPRECIATION OF RS.9,18,42,875 /- IN RESPECT OF VARIOUS ASSETS. THE ASSESSING OFFICER HAD MADE REQUEST TO THE DVO FOR CARRYING OUT VALUATION OF VARIOUS ASSETS. THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE DID NOT CO-OPERATE WITH THE DVO IN THE VAL UATION PROCESS. THEREFORE, VALUATION COULD BE CARRIED OUT ONLY IN R ESPECT OF FIVE PROPERTIES. HE, THEREFORE, ALLOWED DEPRECIATION IN RESPECT OF FI VE PROPERTIES AND DISALLOWED THE BALANCE. IN APPEAL, THE CIT(A) OBSE RVED THAT EVEN IF ASSESSEE WAS NOT CO-OPERATING WITH DVO SOME OTHER MEASURES W ERE REQUIRED TO BE TAKEN TO ASSESS THE VALUE SUCH AS CONDUCTING AN EN QUIRY ABOUT THE EXISTENCE OF THE ASSETS. THE ASSESSEE HAD ALSO SUB MITTED VALUATION FROM THE REGISTERED VALUER WHICH HAD ALSO TO BE CONSIDERED. THE CIT(A) THEREFORE, DIRECTED THE ASSESSING OFFICER TO ALLOW DEPRECIATIO N AFTER GIVING LOGIC FOR TAKING A PARTICULAR VALUATION. THE CIT(A) THUS ALL OWED THE GROUND FOR STATISTICAL PURPOSES. IN OUR VIEW CIT(A) WAS NOT J USTIFIED IN RESTORING THE ISSUE TO THE ASSESSING OFFICER BECAUSE W.E.F. 1.6.2 001 THE CIT(A) HAS NO POWER TO SET ASIDE ANY ISSUE TO THE ASSESSING OFFIC ER. THE CIT(A) WAS REQUIRED TO EITHER EXAMINE THE ISSUE HIMSELF OR OBT AIN A REMAND REPORT FOR DECIDING THE ISSUE. SECONDLY WE ALSO NOTE THAT THE RE HAS BEEN DELAY IN FILING THE APPEAL AND CIT(A) HAS NOT PASSED ANY ORDER COND ONING THE DELAY, THEREFORE, WITHOUT SPECIFIC ORDER FOR ADMITTING THE APPEAL THE CIT(A) WAS NOT JUSTIFIED IN PASSING THE ORDER ON MERIT. WE, THERE FORE, SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER BACK TO HIM FOR PASSI NG FRESH ORDER AFTER ITA NO.952/M/08 A.Y:03-04 3 NECESSARY EXAMINATION IN THE LIGHT OF THE OBSERVATI ONS MADE ABOVE AND AFTER ALLOWING OPPORTUNITY OF HEARING TO THE ASSESSEE. 4. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 13.6.2011. SD/- SD/- (R.S. PADVEKAR) (RAJENDRA SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 13.6.2011. JV. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.