ACIT 5(1), INDORE V. M/s. Shiv Offset India (P) Ltd., INDORE

ITA 977/Ind/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 6663 (ITAT-INDORE)
• Duration Of Justice: 9 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-09-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 10-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S DESH
• Assessee Lawyers: A SISH PORWAL
• Keywords: Depreciation; Wrong claim; Difference of opinion; Unabsorbed depreciation; Change of opinion; Reassessment proceedings
• Section: 143(3); 147; 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO.977/IND/2019 ASSESSMENT YEAR: 2011-12 REVENUE BY SHRI A SISH PORWAL , SR.DR APPELLANT BY SHRI S.S. DESHPANDE, CA DATE OF HEARING 14 .09 .2020 DATE OF PRONOUNCEMENT 14 .09 .2020 O R D E R PER MANISH BORAD, AM. THE ABOVE CAPTIONED APPEAL FILED AT THE INSTANCE OF REVENUE PERTAINING TO ASSESSMENT YEAR 2011-12 IS DIRECTED A GAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-II (IN SHOR T LD.CIT], INDORE DATED 16.09.2019 WHICH IS ARISING OUT OF THE ORDER U/S 143(3) OF THE INCOME TAX ACT 1961(IN SHORT THE ACT ) DATED 20.11.2017 FRAMED BY ACIT-5(1), INDORE. ASSTT. COMMISSIONER OF INCOME TAX-5(1), INDORE VS. M/S. SHIV OFFSET INDIA PVT. LTD, 73, POLO GROUND, INDORE (REVENUE ) (APPELLANT) PAN NO. A A ICS4399B ITA NO.977/IND/2019 SHIV OFFSET INDIA PVT. LTD 2 2. REVENUE HAS RAISED FOLLOWING GROUNDS OF APPEAL : - 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION HOLD ING THAT IT WAS CHANGE OF OPINION OF THE AOS, WHEREAS IT IS EVIDENT FROM THE RECORD THAT IT IS MATTER OF FACT AND WRONG CLAIM WAS MADE ON THE PART OF THE A SSESSEE. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE LD. CIT(A) WAS JUSTIFIED IN IGNORING THE VERY FACT THA T; THE ASSESSEE IS WRONGLY CLAIMING DEPRECIATION @40% ON LOADING VAN, WHEREAS THE ASSESSEE IS NOT INVOLVED IN BUSINESS ACTIVITIES OF TOUR AND TRAVEL . 3. THE APPELLANT CRAVES LEAVE TO ADD TO OR DEDUCT F ROM OR OTHERWISE AMEND THE ABOVE GROUNDS OF APPEAL. 3. THE BRIEF FACTS OF THE CASE AS CULLED OUT FRO M THE RECORDS ARE THAT RETURN OF INCOME WAS FILED BY THE ASSSESSEE DE CLARING RS.56,02,840/- AFTER SETTING OFF THE BROUGHT FORWAR D LOSS OF RS.6,78,170/-. CASE SELECTED FOR SCRUTINY AND THE ASSESSMENT COMPLETED U/S 143(3) OF THE ACT BY ASSESSING AN AMO UNT OF RS.66,81,000/- AGAINST THE RETURN INCOME OF RS.56,0 2,840/- DISALLOWING THE CLAIM OF UNABSORBED DEPRECIATION @4 0% INSTEAD OF 15% ON THE GROUND THAT HIGHER RATE OF DEPRECIATION WAS CLAIMED BY ITA NO.977/IND/2019 SHIV OFFSET INDIA PVT. LTD 3 THE ASSESSEE BECAUSE THE COMPANY IS ENGAGED IN THE OFFSET PRINTING BUSINESS. ACCORDINGLY A NOTICE U/S 148 WAS ISSUED T O THE ASSESSEE AND IN RESPONSE THE ASSESSEE FURNISHED ITS RETURN O F INCOME UNDER PROTEST. THE ASSESSEE ASKED COPY OF REASONS RECORDE D U/S 147 AND THE SAME WAS PROVIDED BY THE LD. A.O. THE ASSESSEE OBJECTED THE PROCEEDINGS INITIATED U/S 147/148 WHICH WAS REJECTE D BY THE LD. A.O. AGGRIEVED ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A) AND SUCCEEDED. THE LD. CIT(A), RELYING UPON JUDICIAL PR ONOUNCEMENTS, QUASHED THE REASSESSMENT PROCEEDINGS ON THE GROUND THAT THE A.O HAD NOT BROUGHT ON RECORD ANY NEW FACT OR EVIDENCE FOR APPLYING THE SECTION 147 OF THE ACT. NOW THE REVENUE IS IN APPEA L BEFORE THE TRIBUNAL. 4. LD. COUNSEL FOR THE ASSESSEE RELIED UPON THE OR DER OF LD. CIT(A). 5. LD. DEPARTMENTAL COUNSEL DEFENDED THE ORDER OF L D. A.O, HOWEVER HE COULD NOT CONTROVERT THE FINDINGS OF THE LD. CIT(A) BY BRINGING ANY ADVERSE MATERIAL. 6. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US. WE FIND THAT IN THE INSTANT CASE THE LD. A.O HAD ITA NO.977/IND/2019 SHIV OFFSET INDIA PVT. LTD 4 PASSED THE ORIGINAL ASSESSMENT TAKING INTO CONSIDER ATION OF ALL THE DOCUMENTS AND FACTS OF THE CASE AND AGAIN HE HAD RE OPENED THE CASE WITHOUT BRINGING OUT ANY FRESH MATERIAL ON REC ORD AND THUS THERE WAS A MERE CHANGE OF OPINION, WHICH IS NOT JU STIFIED. OUR VIEW IS SUPPORTED BY FOLLOWING JUDICIAL PRONOUNCEME NTS; (I) CIT V/S KELVINATOR INDIA LTD 320 ITR 561. (II) ITO V/S TECHSPAN INDIA (P) LTD (2018) 404 ITR 10(SC) (III) ASTEROIDS TRADING & INVESTMENT PVT. LTD V/S DCIT (2009) 308 ITR 190 (BOM). (IV) CIT V/S USHA INTERNATIONAL LTD 348 ITR 485 (D ELHI (FB) 7. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE C ASE IN THE LIGHT OF JUDICIAL PRONOUNCEMENTS (SUPRA) REFERRED ABOVE AND THE FACT THAT NO ADVERSE MATERIAL WAS PRODUCED BEFORE US TO CONTROVERT THE FINDING OF LD. CIT(A), WE UPHOLD THE ORDER OF LD. C IT(A). 8. IN THE RESULT REVENUES APPEAL IS DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 14.09.20 20. SD/- SD/- ( KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 14 SEPTEMBER, 2020 /DEV COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. ITA NO.977/IND/2019 SHIV OFFSET INDIA PVT. LTD 5 BY ORDER, ASSTT.REGISTRAR, I.T.A.T., INDORE