BOMBAY MERCANTILE CO-OPERATIVE BANK LIMITED, MUMBAI V. DEPUTY COMMISSIONER OF INCOME TAX 1(1)(2), MUMBAI

ITA 996/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 2897 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-04-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 21-02-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Depreciation; Question of law
• Section: 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B , MUMBAI BEFORE S HRI SHAMIM YAHYA (AM ) AND SHRI RAM LAL NEGI (JM) ITA NO. 996/MUM/2018 ASSESSMENT Y EAR: 2014 - 15 BOMBAY MERCANTILE CO - OPERATIVE BANK LTD., ZAIN RANGOONWALA BLDG, 78, MOHAMMAD ALI ROAD , MUMBAI - 400003 PAN: AAAAB2359J VS. THE DY. COMMISSIONER OF INCOME TAX 1(1)(1), AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400020 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAJENDRA KUMAR JAIN ( AR ) REVENUE BY : SHRI RITESH MISHRA (DR ) DATE OF HEARING: 13 /03 /201 9 DATE OF PRONOUNCEMENT: 11 / 04 /201 9 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER DATED 01.01.2018 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 2 (FOR SHORT THE CIT(A) , MUMBAI, FOR THE ASSESSMENT YEAR 2014 - 15 , WHEREBY THE LD. CIT(A) HAS PARTLY ALLOWED T HE APPEAL FILED BY THE ASSESSEE AGAINST THE ASSESSMENT ORDER PASSED U/S 143 (3) OF THE INCOME TAX ACT, 1961 (FOR SHORT TH E ACT). 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A CO - OPERATIVE SOCIETY, FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERATION DECLARING THE NIL INCOME. SINCE, THE CASE WAS SELECTED FOR SCRUTINY, THE AO ISSUED NOTICES U/S 1 43 (2) AND 142 (1) OF THE ACT. IN RESPONSE TO THE SAID NOTICES, THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE APPEARED BEFORE THE AO AND FURNISHED THE DETAILS CALLED FOR AND DISCUSSED THE CASE. IT WAS NOTICED THAT THE ASSESSEE HAD CLAIMED A DEDUCTION ON AC COUNT OF AMORTIZATION OF BOOK VALUE OF 2 ITA NO. 996 / MUM/2018 ASSESSMENT YEAR: 2014 - 15 INVESTMENT AMOUNTING TO RS. 1,60,07,715/ - . ACCORDINGLY, THE AO ASKED THE AR TO EXPLAIN AS TO WHY THE SAID AMOUNT SHOULD BE ALLOWED AS A DEDUCTION UNDER THE ACT. THE AO AFTER HEARING THE PLEA OF THE ASSESSEE REJECTED T HE CLAIM OF THE ASSESSEE AND MADE ADDITION OF THE SAID AMOUNT TO THE TOTAL INCOME OF THE ASSESSEE. THE ASSESSEE CHALLENGED THE ASSESSMENT ORDER BEFORE THE LD. CIT (A) INTER ALIA ON THE GROUND THAT THE LD. CIT (A) HAS WRONGLY CONFIRMED THE ADDITION OF RS. 1 ,60,07,715/ - CLAIMED BY THE ASSESSEE ON ACCOUNT OF AMORTIZATION OF DEPRECIATION. THE LD. CIT (A) AFTER HEARING THE ASSESSEE DISMISSED THE SAID GROUND OF APPEAL AND CONFIRMED THE ADDITION MADE BY THE AO. AGAINST THE SAID ORDER THE ASSESSEE IS IN APPEAL BEFO RE THE TRIBUNAL. 3 . T HE ASSESSEE HAS CHALLENGED THE IMPUGNED ORDER PASSED BY THE LD. CIT (A ) ON THE FOLLOWING EFFECTIVE GROUND : - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT (A) ERRED IN CONFIRMING THE ADDITION OF RS. 1, 60,07,715/ - ON ACCOUNT OF AMORTIZATION OF DEPRECIATION WITHOUT APPLYING THE RATIO DECIDENDI OF THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX - 2, MUMBAI V/S HDFC BANK LTD., IN THE INCOME TAX APPEAL NO. 250 OF 2012. 4. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE MUMBAI BENCH OF THE TRIBUNAL HAS DEALT WITH THE IDENTICAL ISSUE IN ASSESSEES OWN CASE FOR THE A.Y. 2009 - 10 AND THE TRIBUNAL AFTER HEARING THE ASSESSEE RESTORED THE ISSUE BACK TO THE FILE OF AO WITH THE DIRECTION TO ALLOW THE ASSESSEE TO TAKE RECOURSE TO THE PROVISIONS OF SECTION 158A. THE LD. COUNSEL FURTHER SUBMITTED THAT THE APPEAL OF THE ASSESSEE MAY BE SENT BACK TO THE AO TO ENABLE THE ASSESSEE TO COMPLETE ALL FORMALITIES AS ENVI SAGED BY SECTION 158A. 5. THE LD. DEPARTMENTAL REPRESENTATIVE (DR) FAIRLY ADMITTED THE FACTS STATED BY THE LD. COUNSEL FOR THE ASSESSEE. 3 ITA NO. 996 / MUM/2018 ASSESSMENT YEAR: 2014 - 15 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD INCLUDING THE ORDER PASSED BY THE CO - ORDINA TE BENCH IN THE ASSESSEES OWN CASE FOR THE A.YS. 2009 - 10 AND 2010 - 11. WE NOTICE THAT THE ASSESSEE HAD PLEADED BEFORE THE TRIBUNAL TO ALLOW THE AS SESSEE TO APPLY THE PROVISIONS OF SECTION 158A AND THE CO - ORDINATE BENCH ALLOWED THE REQUEST OF THE ASSESSEE A ND SENT THE APPEAL BACK TO THE AO FOR ALLOWING THE ASSESSEE TO TAKE RECOURSE TO THE PROVISIONS OF SECTION 158A. THE RELEVANT PARAS OF THE ORDER OF THE COORDINATE BENCH READ AS UNDER: - 4. HEARD AND PERUSED RELEVANT MATERIAL ON RECORD. UPON PERUSAL, WE CON CUR WITH THE SUBMISSIONS THAT IDENTICAL MATTER IS SUB - JUDICE BEFORE HONBLE BOMBAY HIGH COURT. HENCE, THE PROVISIONS OF SECTION 158A TITLED AS PROCEDURE WHEN ASSESSEE CLAIMS IDENTICAL QUESTION OF LAW IS PENDING BEFORE HIGH COURT OR SUPREME COURT SQUARELY APPLY TO THE FACTS OF THE CASE. THE LD. AR, VIDE LETTER DATED 10/11/2017 HAS PLACED ON RECORD APPLICATION IN FORM NO. 8 READ WITH RULE 16 OF INCOME TAX RULES PURSUANT TO SECTION 158A. HENCE, WITHOUT DELVING MUCH DEEPER INTO THE MATTER, WE RESTORE THE MATT ER TO THE FILE OF LD. AO FOR COMPLETION OF ALL FORMALITIES AS ENVISAGED BY SECTION 158A. NEEDLESS TO SAY THAT THE MATTER ON MERITS SHALL BE KEPT IN ABEYANCE TILL THE OUTCOME OF THE DECISION OF HONBLE COURT IN THE CITED APPEALS. RESULTANTLY, THE ASSESSEES APPEALS STANDS ALLOWED FOR STATISTICAL PURPOSES. 5. WE FIND THAT THE IDENTICAL GROUND IS SOLE GROUND IN ITA NO. 1621/MUM/2015 FOR AY 2009 - 10 & ITA NO. 829/MUM/2016 FOR AY 2010 - 11. THE LD. AR HAS PLEADED ON SIMILAR LINES TO APPLY THE PROVISIONS OF SECTION 158A TO THE SAME. HENCE, THE MATTER IS RESTORED BACK TO LD. AO WITH SIMILAR DIRECTIONS INCLUDING COMPLETION OF NECESSARY FORMALITIES IN THIS REGARD. RESULTANTLY, THESE TWO APPEALS ALSO STANDS ALLOWED FOR STATISTICAL PURPOSES. 7. SINCE, THE FACTS AND TH E ISSUE INVOLVED IN THE PRESENT APPEAL ARE IDENTICAL TO THE FACTS AND ISSUE INVOLVED IN THE ASSESSEES OWN CASE FOR THE A.Y. 2009 - 10 AND 2010 - 11 AND SINCE THE TRIBUNAL HAS RESTORED THE IDENTICAL ISSUE TO THE FILE 4 ITA NO. 996 / MUM/2018 ASSESSMENT YEAR: 2014 - 15 OF THE AO WITH THE DIRECTION TO ALLOW THE A SSESSEE TO TAKE RECOURSE TO SECTION 158A OF THE ACT, WE R ESPECTFULLY FOLLOWING THE DECISION OF THE CO - ORDINATE BENCH, RESTORE THIS APPEAL TO THE FILE OF AO WITH THE SIMILAR DIRECTIONS . IN THE RESULT, APPEAL FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 2014 - 2015 IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH APRIL , 2019 . SD/ - SD/ - ( SHAMIM YAHYA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 11 / 0 4 / 201 9 ALINDRA, PS / 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) , / ITAT, MUMBAI