Vena Energy Fatanpur Power Private Limited, Bangalore V. Deputy Commissioner of Income Tax, Central Circle-2(2), Bangalore

MA 103/BANG/2022

• Counselvise Citation: [2022] 103 COUNSELVISE.COM (IT) 8665 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-11-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 03-11-2022
• Assessment Year: 2016-2017
• Appeal Filed On: 05-10-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PADAMCHAND KHINCHA
• Keywords: Depreciation
• Section: 143(3); 153A; 153C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH : BANGALORE BEFORE SHRI GEORGE GEORGE K., JUDICIAL MEMBER AND Ms. PADMAVATHY S, ACCOUNTANT MEMBER MP Nos.103 & 104/Bang/2022 [in IT(TP)A Nos.196 & 198/Bang/2021 Assessment year : 2016-17 Vena Energy Fatanpur Power Pvt. Ltd. PAN: AADCE 6919N Vena Energy Patan Power Pvt. Ltd. PAN : AADCE 6973A 2/1, First Floor, Icon Annexe, Infantry Road, Bangalore – 560 001. Vs. The Deputy Commissioner of Income Tax, Circle 2(2), Bangalore. APPELLANT RESPONDENT Appellant by : Shri Padamchand Khincha, CA Respondent by : Shri Praveen Karanth, CIT(DR) (ITAT), Bengaluru. Date of hearing : 04.11.2022 Date of Pronouncement : 11.11.2022 O R D E R Per Padmavathy S., Accountant Member These miscellaneous petitions are filed by the assessee seeking rectification in the order of the Tribunal dated 07.07.2022. 2. The ld AR submitted that there is an error in para 34 of the order of the Tribunal on the issue of disallowance made towards salary cost and depreciation inasmuch as the words “accounted in capital work in progress” are required to be deleted. MP 103 & 104/Bang/2022 Page 2 of 4 3. We have heard both the parties and perused the material on record. Para 34 of the common order of the Tribunal dated 07.07.2022 pertaining to IT(TP)A Nos.196 & 198/Bang/2021 is modified and substituted to read as under:- “34. The issue of disallowance made towards salary cost debited to the P&L account u/s.40(a)(ia), protective and substantive disallowance of depreciation on the salary cost and the disallowance of depreciation on the pre-operative expenses is common to appeal no 196 and 198/BANG/2021. The details of the disallowances made is given in the table below.” Sl No Particulars Total amount of expenditure under question Total disallowance made by Assessing Officer in the Final Assessment Order Total amount of expenditure under question Total disallowance made by Assessing Officer in the Final Assessment Order Vena Energy Fatanpur Power Private Limited Vena Energy Patan Power Private Limited 1 Disallowance on capitalized salary cost 5,09,04,261 76,35,639 (5,09,04,261*15%) 1,40,21,898 21,03,285 (1,40,21,898*15%) 2 Disallowance on salary charged to P&L 32,10,929 9,63,279 (32,10,929*30%) 46,65,866 13,99,760 (46,65,866*30%) 3 Disallowance on capitalized pre- operative cost 37,88,734 2,91,354 (37,88,734*7.69%) 28,82,246 2,21,645 (28,82,246*7.69%) 4. The ld. AR also submitted that an additional ground was also raised before the Tribunal submitting that the additional ground may be admitted, but left open for adjudication. The additional ground reads as under:- MP 103 & 104/Bang/2022 Page 3 of 4 “33. The subject assessment order passed by the learned Assessing Officer (“AO”) under section 143(3) of the Income-tax Act, 1961 [“the Act”] has been passed without jurisdiction as the same ought to have been passed under section 153C read with section 153A of the Act. Therefore, the same is void-ab-initio and ought to be quashed.” 5. The ld AR submitted that the above additional ground has not been considered by the Tribunal and reiterated the same may be admitted and left open. 6. We have considered the rival submissions and perused the material on record. The above additional ground was inadvertently not considered by the Tribunal in the order dated 7.7.2022. After hearing both the parties, we find that the additional ground raised by the assessee is on the legal issue and following the Hon’ble Supreme Court judgment in the case of M/s National Thermal Power Co. Ltd. Vs. CIT, 229 ITR 383 (SC), the additional ground is admitted for adjudication. However, as submitted by the assessee, as far as adjudication of the same is concerned, the same is left open. 7. Except for the above modification, the rest of the order of the Tribunal remains unchanged. 8. In the result, the miscellaneous petitions by the assessee are allowed. Pronounced in the open court on this 11 th day of November, 2022. Sd/- Sd/- ( GEORGE GEORGE K. ) ( PADMAVATHY S. ) JUDICIAL MEMBER ACCOUNTANT MEMBER Bangalore, Dated, the 11 th November, 2022. / Desai S Murthy / MP 103 & 104/Bang/2022 Page 4 of 4 Copy to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR, ITAT, Bangalore. By order Assistant Registrar ITAT, Bangalore.