Petronet VK Ltd., JAMNAGAR V. The Deputy Commissiner of Income Tax, Circle-2, JAMNAGAR

MA 1/RJT/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1019 (ITAT-RAJKOT)
• Duration Of Justice: 7 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-08-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 22-08-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 22-01-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VILAS V SHINDE
• Assessee Lawyers: VIMAL DESAI CA S
• Keywords: Depreciation

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH, RAJKOT. . . A . . BEFORE SHRI T. K. SHARMA JM AND SHRI D. K. SRIVASTAVA AM M. A . NO. 01 /RJT/2013 (ARISEN OUT OF THE ORDER IN ITA NO . 531 /RJT/20 07 ) R R / ASSESSMENT YEAR : 200 4 - 0 5 PETRONET VK LIMITED, PLOT 11/2, DEV PARK, B/H. ATUL PETROL PUMP, MEHULNAGAR, JAMNAGAR PAN: AABCP 63 50 J ( 1 / APPELLANT) THE DCIT, CIRCLE - 2, JAMNAGAR 1 / RESPONDENT RES / ASSESSEE BY SHRI VIMAL DESAI, CA S / REVENUE BY SHRI VILAS V SHINDE, DR S / DATE OF HEARING 22 . 0 8 . 2013 S / DATE OF PRONOUNCEMENT 23 . 0 8 . 2013 / ORDER . . A , / T. K. SHARMA, J. M. : THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASSESSEE WHEREIN IT IS POINTED OUT THAT THERE IS A MISTAKE IN THE ORDER OF THE TRIBUNAL. THE MISCELLANEOUS APPLICATION READS AS UNDER: - 1. ONE OF T HE ISSUES FOR ADJUDICATION BEFORE THE HONBLE BENCH IN RESPECT OF THE APPEAL NO.531/RJT/2007 FILED BY THE APPELLANT WAS REGARDING OBJECTING TO DISALLOWANCE OF DEPRECIATION ON TELECOM SYSTEM FOR A SUM OF RS.2,22,71,117/ - , WHICH WAS THE GROUND NO.3 IN THE GR OUNDS OF APPEAL TAKEN UP BY THE APPELLANT/APPLICANT. 2. THIS GROUND WAS DISPOSED OFF VIDE PARAGRAPH - 8 OF THE ORDER OF THE TRIBUNAL WHEREIN THE HONBLE BENCH CONFIRMED THE DISALLOWANCE RELYING SOLELY ON THE FINDINGS GIVEN BY THE CIT(A) IN HIS ORDER WHILE C ONFIRMING DISALLOWANCE OF THE DEPRECIATION. THE FINDINGS OF THE CIT(A) WERE REPRODUCED ON PAGE 4 TO 6 [RELEVANT PARA - 7 OF THE ORDER] OF THE ORDER. THE APPLICANT WOULD PARTICULARLY LIKE TO HIGHLIGHT THE SUB - PARA - 3 OUT OF THE ABOVE FINDINGS, WHICH IS REPRODU CED HEREUNDER: 3. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE APPELLANT SUBMITTED THE CERTIFICATE MENTIONING THEREIN THAT THE TELECOM SYSTEM PROJECT IS COMPLETED ON 18/04/2003 AND IT WAS READY FOR PUT TO USE. THE APPELLANT CLAIMED THE DEPRECIATION ON THE TELECOM SYSTEM SINCE IT WAS ACTUALLY PUT MA 01 - RJT - 2013 - PETRONET VK LIMITED 2 TO USE ON 30/09/2004 AND THIS FACT IS ALSO CERTIFIED BY THE TAX AUDITORS. 3. DURING THE COURSE OF HEARING BEFORE THE HONBLE TRIBUNAL, IT WAS POINTED OUT THAT THE DATE OF 30.09.2004 WHICH WAS MENTIONED IN AN NEXURE - A OF THE TAX AUDIT REPORT RELATING TO CALCULATION OF DEPRECIATION AND WHICH WAS ATTACHED AT PAGE NO.26 OF THE PAPER BOOK FILED BEFORE THE HONBLE TRIBUNAL, THE SAME WAS INADVERTENTLY MENTIONED AS 30/09/2004 INSTEAD OF THE CORRECT DATE BEING 30/09/20 03. THIS CAN ALSO BE VERIFIED FROM THE FACT THAT THE TAX AUDIT REPORT WAS PREPARED BY THE CONCERNED CHARTERED ACCOUNTANT ON 16/07/2004 [PAPER BOOK, PAGE NO.15], WHICH IS PRIOR TO 30/09/2004 MEANING HEREBY THAT THERE IS AN INADVERTENT ERROR WHICH HAD CREPT INTO WHILE MENTIONING DATE OF INSTALLATION IN RESPECT OF TELECOM SYSTEM WHILE PREPARING THE SCHEDULE OF DEPRECIATION ATTACHED WITH THE TAX AUDIT REPORT, WHICH SHOULD HAVE BEEN 30/09/2003 AND NOT 30/09/2004. 4. THE ABOVE MISTAKE WAS POINTED OUT DURING THE COURSE OF HEARING BEFORE HONBLE TRIBUNAL. HOWEVER, IT APPEARS THAT WHILE FINALIZING THE ORDER, THE SAME AHS BEEN LOST SIGHT OF AND HENCE NOT DEALT WITH WHILE DISPOSING OFF THE APPEAL OF THE APPLICANT. 5. IN VIEW OF THE ABOVE, AN APPARENT MISTAKE OF FACT HAS CREPT INTO THE ORDER OF THE HONBLE TRIBUNAL WHEREBY ON THE BASIS OF THE INADVERTENT ERROR OF SHOWING THE DATE OF 30/09/2004 AS THE DATE OF INSTALLATION AND PUTTING TELECOM SYSTEM TO USE INSTEAD OF THE CORRECT DATE IF 30/09/2003, THE DEPRECIATION OF R S.2,22,71,117/ - FOR WHICH THE DISALLOWANCE WAS UPHELD BY THE CIT(A) CAME TO BE CONFIRMED BY THE HONBLE ITAT. 6. IF THE ABOVE APPARENT MISTAKE OF THE FACT IS RECTIFIED, THE APPLICANT IS ENTITLED TO DEPRECIATION ON THE TELECOM SYSTEM FOR A SUM OF RS.2,22,7 1,117/ - AS THE CORRECT DATE OF THE INSTALLATION OF 30/09/2003 FALLS INTO PREVIOUS YEAR RELEVANT TO A.Y. 2004 - 05. 7. SINCE THE ABOVE MISTAKE APPARENT FROM THE RECORD IS SELF - EVIDENT AND WAS ALSO BROUGHT TO THE NOTICE OF THE HONBLE BENCH WHILE ARGUING THE MATTER, THE SAME MAY PLEASE BE RECTIFIED BY PASSING A SUITABLE RECTIFICATORY ORDER U/S 254(2) OF THE ACT. 2. AT THE TIME OF HEARING THIS MISCELLANEOUS APPLICATION, ON BEHALF OF THE ASSESSEE SHRI VIMAL DESAI, CA APPEARED AND POINTED OUT THAT TRIBUNAL AT PAGE NO. 26 OF THE PAPER BOOK, INADVERTENTLY THE DATE WAS MENTIONED AS 30.09.2004 INSTEAD OF THE CORRECT DATE BEING 30.09.200 3. HE FURTHER SUBMITTED THAT THIS CAN BE VERIFIED FROM THE FACT THAT THE TAX AUDIT REPORT WAS PREPARED BY THE CONCERNED CHARTERED ACCOUNTANT ON 16.07.2004 [PAPER BOOK, PAGE NO.15], WHICH IS PRIOR TO 30.09.2004 MEANING THEREBY THAT THERE IS AN INADVERTENT ERROR WHICH HAD CREPT INTO WHILE MENTIONING DATE OF INSTALLATION IN RESPECT OF TELECOM SYSTEM WHILE MA 01 - RJT - 2013 - PETRONET VK LIMITED 3 PREPARING THE SCHEDULE OF DEPRE CIATION ATTACHED WITH THE TAX AUDIT REPORT; THEREFORE THE TRIBUNAL MAY RECTIFY THE MISTAKE AND CORRECT THE DATE AS 30.09.2003. HE FURTHER SUBMITTED THAT, IN VIEW OF THE ABOVE, THE ASSESSEE IS ENTITLED TO THE DEPRECIATION OF RS.2,22,71,117/ - . 3. AS AGAINS T THIS, SHRI VILAS V. SHINDE, LD DR, APPEARED ON BEHALF OF THE REVENUE POINTED OUT THAT THE TRIBUNAL HAS NOT COMMITTED ANY ERROR. HE SUBMITTED THAT TRIBUNAL IN ITS ORDER, ON THE BASIS OF TAX AUDIT REPORT, HELD THAT ASSET WAS NOT READY FOR USE ON 18.04.2003 , THEREFORE THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE BE DISMISSED. 4. AFTER HEARING BOTH THE SIDES, WE HAVE CAREFULLY GONE THROUGH THE ORDER OF THE TRIBUNAL. THE TRIBUNAL, IN ITS ORDER AT PAGE NO.6, HELD THAT THE ASSESSEE HAS NOT AT ALL ESTAB LISHED THAT THE ABOVE ASSET WAS INSTALLED AND READY FOR USE AS ON 18.04.2003. NOT ONLY THIS, THE TRIBUNAL HAS ALSO OBSERVED THAT THAT IF THE TELECOM SYSTEM READY FOR USE ON 18.04.2003, WHY IT WAS ACTUALLY PUT TO USE ON 30.09.2004, THAT IS AFTER FULL ONE A ND HALF YEAR. TO SUM UP, AFTER CAREFULLY GOING THROUGH THE ORDER OF THE TRIBUNAL, WE ARE CONVINCED THAT THE TRIBUNAL HAS TAKEN A CONSCIOUS DECISION KEEPING IN VIEW THAT THE DATE AS PROVIDED BY THE ASSESSEE S AUDITORS IN THE AUDIT REPORT THAT SYSTEM WAS PU T TO USE ON 30.09.2004. WE ARE OF THE VIEW THAT THERE IS NO MISTAKE APPARENT FROM THE RECORD WITHIN IN THE MEANING OF SECTION 25 4 (2) OF THE INCOME - TAX ACT, 1961 . THEREFORE, THE MISCELLA NE OUS A PPLICATION FILED BY THE ASSESSEE IS DISMISSED. THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED HEREINABOVE. SD/ - SD / - ( . . D. K. SRIVASTAVA ) ( . . R / T. K. SHARMA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / ORDER DATE 23 . 0 8 . 2013. /RAJKOT * BT