Dy.Director of Incometax(International taxation), Cochin V. Shri.P.Shrinivas, Calicut

MA 114/COCH/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1610 (ITAT-COCHIN)
• Duration Of Justice: 5 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-03-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 14-03-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 01-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LATHA V KUMAR
• Assessee Lawyers: IYPE MATHEW
• Keywords: Depreciation

Judgement Text

1 ITA NO. 114/COCH/2013 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) M.P.NO.114/COCH/2013 (ARISING OUT OF I.T.A NO. 320/COCH/2012) (ASSESSMENT YEAR 2008-09) DEPUTY DIRECTOR OF INCOME-TAX VS SHRI P SHRINIVAS (INTERNATIONAL TAXATION) SAMS PROPERTY DEVELOPE RS & C.R. BLDG, I.S. PRESS ROAD CHAKORATHUKULAM, KOZH IKODE KOCHI 682 018 PAN : AOXPS9241Q (APPLICANT) (RESPONDENT) APPLICANT BY : SMT. LATHA V KUMAR RESPONDENT BY : SHRI IYPE MATHEW DATE OF HEARING : 14-03-2014 DATE OF PRONOUNCEMENT : 28-03-2014 O R D E R PER N.R.S. GANESAN (JM) THE REVENUE HAS FILED THE PRESENT MISCELLANEOUS PE TITION ON THE GROUND THAT THERE IS AN ERROR IN THE ORDER OF THIS TRIBUNAL DATED 28-02-2013. 2. SMT. LATHA V KUMAR, THE LD.DR SUBMITTED THAT THI S TRIBUNAL HAS REMANDED BACK THE MATTER TO THE FILE OF THE ASSESSI NG OFFICER TO RECONSIDER THE ISSUE AFRESH IN ACCORDANCE WITH THE CIRCULAR IS SUED BY CBDT NO.29D(XIX-14) DATED 31-08-1965. ACCORDING TO THE LD.DR, AS PER CONDITIONS PRESCRIBED IN CLAUSE (3) OF THE CBDT CIR CULAR THE ASSESSEE HAS NOT FURNISHED THE REQUIRED PARTICULARS BEFORE THE A SSESSING OFFICER AND NO CLAIM FOR DEPRECIATION HAS BEEN MADE IN THE RETURN OF INCOME. THEREFORE, 2 ITA NO. 114/COCH/2013 ACCORDING TO THE LD.DR, THE ASSESSEE IS NOT ENTITLE D FOR DEPRECIATION. REFERRING TO THE ASSESSMENT ORDER, ACCORDING TO THE LD.DR, THE ASSESSING OFFICER HAS DEALT WITH THE ISSUE OF DEPRECIATION AN D FOUND THAT THE ASSESSEE IS NOT ENTITLED FOR DEPRECIATION IN ACCORDANCE WITH THE PROVISIONS OF INCOME- TAX ACT. THEREFORE, REMANDING THE MATTER BACK TO T HE FILE OF THE ASSESSING OFFICER IS NOT CORRECT. THE LD.DR FURTHER SUBMITTE D THAT WHEN THE NET PROFIT WAS COMPUTED, THERE IS NO QUESTION OF FURTHER ALLOW ING DEPRECIATION FROM THE ESTIMATED NET INCOME. THEREFORE, THE TRIBUNAL SHOULD NOT HAVE REMANDED BACK THE MATTER TO THE FILE OF THE ASSESSI NG FOR RECONSIDERATION. WE HEARD SHRI IYPE MATHEW, THE LD.REPRESENTATIVE FO R THE ASSESSEE ALSO. 3. THE CBDT BY CIRCULAR NO.29D(XIX-14) DATED 31-08 -1965 INSTRUCTED ITS OFFICERS THAT WHENEVER THE PROFIT WAS ESTIMATED AND THE PRESCRIBED PARTICULARS WERE FURNISHED BY THE TAXPAYER DEPRECIA TION ALLOWANCE SHALL BE WORKED OUT SEPARATELY. THEREFORE, IT IS THE INTENT ION OF THE CBDT TO COMPUTE THE DEPRECIATION SEPARATELY EVEN THOUGH THE PROFIT WAS ESTIMATED. THE APPEAL BEFORE THIS TRIBUNAL IS IN CONTINUATION OF THE ASSESSMENT PROCEEDINGS. THEREFORE, WHEN THE ASSESSING OFFICER FOUND THAT THE DEPRECIATION COMPUTED BY THE ASSESSEE IS NOT IN ACC ORDANCE WITH THE INCOME-TAX ACT, IT IS OPEN TO THE ASSESSING OFFICER TO COMPUTE THE DEPRECIATION AS PER THE INCOME-TAX ACT AND ALLOW TH E SAME AS INSTRUCTED BY THE CBDT. THE CBDT IS THE TAX ADMINISTRATION BO DY TO ADMINISTER THE DIRECT TAXES LAWS. IN EXERCISE OF THE STATUTORY PO WER CONFERRED ON THE CBDT UNDER INCOME-TAX ACT, IT INSTRUCTED ITS OFFERS TO WORK OUT THE DEPRECIATION ALLOWANCE SEPARATELY WHEREVER THE PROF IT WAS ESTIMATED. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINI ON THAT THIS CIRCULAR IS BINDING ON THE ASSESSING OFFICER. WHEN THE ASSESSI NG OFFICER FOUND THAT THE COMPUTATION MADE BY THE ASSESSEE IS NOT CORRECT AND IT IS NOT IN 3 ITA NO. 114/COCH/2013 ACCORDANCE WITH THE PROVISIONS OF THE INCOME-TAX AC T NOTHING IS WRONG IN ASKING THE ASSESSEE TO FURNISH THE NECESSARY PARTIC ULARS SO AS TO FACILITATE THE COMPUTATION OF DEPRECIATION ALLOWANCE BY THE AS SESSING OFFICER AS PER THE PROVISIONS OF THE INCOME-TAX ACT. THIS TRIBUNA L DIRECTED THE ASSESSING OFFICER TO CONSIDER THE ISSUE IN THE LIGHT OF THE M ATERIAL AVAILABLE ON RECORD AND ALLOW DEPRECIATION AS PER THE INSTRUCTIONS OF T HE CBDT. A LIBERTY WAS GIVEN TO THE ASSESSEE TO FILE ALL THE MATERIALS TO WORK OUT THE DEPRECIATION AS PER THE PROVISIONS OF INCOME-TAX ACT. THEREFORE , THIS TRIBUNAL DO NOT FIND ANY ERROR, MUCH LESS A PRIMA FACIE ERROR, IN T HE ORDER OF THE TRIBUNAL DATED 28-02-2013. THEREFORE, THE APPLICATION OF TH E REVENUE HAS NO MERIT AT ALL. ACCORDINGLY, THE SAME IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 28 TH MARCH, 2014. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 28 TH MARCH, 2014 PK/- COPY TO: 1. DEPUTY DIRECTOR OF INCOME-TAX, INTERNATIONAL TAX ATION, KOCHI 2. SHRI P SHRINIVAS, SAMS PROPERTY DEVELOPERS & HOT ELS (P) LTD, CHAKKORATHUKULAM, KOZHIKODE 3. THE COMMISSIONER OF INCOME-TAX, KOCHI 4. THE COMMISSIONER OF INCOME-TAX(A)-III, KOCHI 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH