The ACIT., Anand Circle, Anand V. M/s. Kaira Dist. Co.-Op. Milk Producers Union Ltd., Anand

MA 120/AHD/2020

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 9544 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 month(s) 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-01-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 05-06-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P P MEENA
• Keywords: Depreciation; Additional depreciation
• Section: 32(1)(iia); 254(2); 32

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD ( THROUGH VIRTUAL COURT ) BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER MA NO.120/AHD/2020 (IN ./ITA NO.2218/AHD/2016) ( / ASSESSMENT YEAR : 2012-13) THE ACIT ANAND CIRCLE ANAND / VS. M/S.KAIRA DISTRICT CO-OP.MILK PRODUCERS UNION LTD. AMUL DAIRY ROAD ANAND ./ ./ PAN/GIR NO. AAAAK 8694 F ( / APPLICANT ) .. ( / RESPONDENT ) / APPLICANT BY : SHRI P.P. MEENA, SR.DR / RESPONDENT BY : SHRI VIMAL DESAI, AR / DATE OF HEARING 18/12/2020 !'# / DATE OF PRONOUNCEMENT 04/01/2021 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE REVENUE BY WAY OF THIS MISCELLANEOUS APPLICATIO N IS SEEKING TO RECALL THE ORDER PASSED BY THE ITAT IN ITA NO. 2 218/AHD/2016 FOR THE AY 2012-13 DATED 03/10/2019 ON THE REASONING TH AT THERE IS A MISTAKE IN SUCH ORDER WHICH IS APPARENT FROM RECORD . 2. THE ASSESSEE IN THE PRESENT CASE CLAIMED ADD ITIONAL DEPRECIATION IN THE IMMEDIATE PRECEDING ASSESSMENT YEARS UNDER SECT ION 32(1)(IIA) OF THE ACT AMOUNTING TO RS.1,58,29,479.00 REPRESENTING ONL Y 50% OF THE MA NO.120/AHD/2020 (IN ITA NO.2218/AHD/2016) ACIT VS. M/S.KAIRA DIST. CO-OP. MILK PRODUCERS UN ION LTD. ASS T.YEAR 2012-13 - 2 - ADDITIONAL DEPRECIATION ON THE REASONING THAT THE A SSETS IN QUESTION WAS PUT TO USE FOR A PERIOD LESS THAN 180 DAYS IN THE I MMEDIATE PRECEDING ASSESSMENT YEAR. ACCORDINGLY, THE REMAINING AMOUNT OF ADDITIONAL DEPRECIATION OF RS.1,58,29,479.00 WAS CLAIMED IN TH E YEAR UNDER CONSIDERATION. HOWEVER, THE AO DISALLOWED THE ADDIT IONAL DEPRECIATION FOR THE YEAR UNDER CONSIDERATION ON THE GROUND THAT IS NO PROVISION TO CLAIM SUCH ADDITIONAL DEPRECIATION IN THE SUBSEQUEN T ASSESSMENT YEAR. HOWEVER, THE LEARNED CIT (A) ALLOWED THE CLAIM OF T HE ASSESSEE WHICH WAS SUBSEQUENTLY CONFIRMED BY THE ITAT VIDE ORDER D ATED 03-10-2019. 3. NOW THE GRIEVANCE OF THE REVENUE IS THAT THE RIGHT TO THE ASSESSEE FOR CLAIMING THE ADDITIONAL DEPRECIATION IN THE SUBSEQU ENT ASSESSMENT YEAR WAS PROVIDED BY THE FINANCE ACT 2015 WITH EFFECT FR OM 1.4.2016 BY INSERTING THE 3 RD PROVISO TO SECTION 32 OF THE ACT. THE RELEVANT EXT RACT OF THE PROVISO TO SECTION 32 OF THE ACT READS AS UNDER : [ PROVIDED ALSO THAT WHERE AN ASSET REFERRED TO IN CLAUSE (IIA) OR THE FIRST PROVISO TO CLAUSE (IIA), AS THE CASE MAY BE, IS ACQUIRED BY THE ASSESSEE DURING THE PREVIOUS YEAR AND IS PUT TO USE FOR THE PURPOSES OF BUSINESS FOR A PERIOD OF LESS THAN ONE HUNDRED AND EIGHTY DAYS IN THAT PREVIOUS YEAR, AND THE DEDUCTION UNDER THIS SUB-SEC TION IN RESPECT OF SUCH ASSET IS RESTRICTED TO FIFTY PER CENT OF THE A MOUNT CALCULATED AT THE PERCENTAGE PRESCRIBED FOR AN ASSET UNDER CLAUSE (II A) FOR THAT PREVIOUS YEAR, THEN, THE DEDUCTION FOR THE BALANCE FIFTY PER CENT OF THE AMOUNT CALCULATED AT THE PERCENTAGE PRESCRIBED FOR SUCH AS SET UNDER CLAUSE (IIA) SHALL BE ALLOWED UNDER THIS SUB-SECTION IN THE IMME DIATELY SUCCEEDING PREVIOUS YEAR IN RESPECT OF SUCH ASSET:] 4. THE LEARNED DR BEFORE US CONTENDED THAT THE YE AR UNDER CONSIDERATION IS ASSESSMENT YEAR 2012-13 WHEREAS TH E SAID PROVISO WAS MA NO.120/AHD/2020 (IN ITA NO.2218/AHD/2016) ACIT VS. M/S.KAIRA DIST. CO-OP. MILK PRODUCERS UN ION LTD. ASS T.YEAR 2012-13 - 3 - EFFECTIVE WITH EFFECT FROM 1ST APRIL, 2016. THEREFO RE THE ITAT ERRED IN ALLOWING THE RELIEF TO THE ASSESSEE INADVERTENTLY B Y WAY OF GRANTING ADDITIONAL DEPRECIATION IN THE SUBSEQUENT ASSESSMEN T YEAR. ACCORDINGLY, SUCH MISTAKE BEING APPARENT FROM RECORD NEEDS TO BE RECTIFIED. CONSEQUENTLY, THE LEARNED DR PRAYED TO RECALL THE O RDER PASSED BY THE ITAT. 5. ON THE OTHER HAND, THE LEARNED AR BEFORE US SUBMITTED THAT THERE IS NO MISTAKE IN THE ORDER OF THE ITAT APPARENT FROM R ECORD. AS SUCH THE ITAT HAS PASSED THE ORDER AFTER RELYING ON THE ORDE RS OF THE TRIBUNAL AND THE HONBLE HIGH COURT WHEREIN IT WAS HELD THAT THE ASSESSEE IS ENTITLED FOR ADDITIONAL DEPRECIATION IN THE SUBSEQUENT YEAR AS WELL. THE LEARNED AR VEHEMENTLY SUPPORTED THE ORDER OF THE ITAT. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE SCOPE UNDER THE PROVISIONS OF SECTION 254(2) OF THE ACT IS LIMITED TO THE EXTENT OF THE MISTAKES APPARENT FROM RECORD. IN THE CASE ON HAND THE FINDING WAS GI VEN BY THE ITAT AFTER MAKING REFERENCE TO THE OTHER ORDER OF THE ITAT AND THE HONBLE MADRAS HIGH COURT WHEREIN IT WAS HELD THAT THE ASSE SSEE WAS ENTITLED FOR ADDITIONAL DEPRECIATION IN THE SUBSEQUENT YEAR. THE ORDERS FOR RENDERED MUCH BEFORE THE INSERTION OF THE PROVISO T O SECTION 32 OF THE ACT AS DISCUSSED ABOVE. IN OTHER WORDS, WHAT IS TRANSP IRED IS THAT THE ISSUE FOR CLAIMING THE ADDITIONAL DEPRECIATION IN THE SUB SEQUENT YEAR WAS SETTLED MUCH BEFORE THE INSERTION OF THE PROVISO TO SECTION 32 OF THE ACT MA NO.120/AHD/2020 (IN ITA NO.2218/AHD/2016) ACIT VS. M/S.KAIRA DIST. CO-OP. MILK PRODUCERS UN ION LTD. ASS T.YEAR 2012-13 - 4 - AS DISCUSSED ABOVE. ACCORDINGLY WE HOLD THAT THERE WAS NO MISTAKE IN THE ORDER OF THE ITAT. CONSEQUENTLY, NO RECTIFICATION U NDER SECTION 254(2) OF THE ACT IS REQUIRED. HENCE, THE MA FILED BY THE REV ENUE IS DISMISSED. 7. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y THE REVENUE IS DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 04/01/2021 SD/- SD/- ( MAHAVIR PRASAD ) ( WASEEM AHMED ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 04/01/2021 &.., .(.. / T.C. NAIR, SR. PS !'#' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPLICANT 2. / THE RESPONDENT. 3. )*+ , / CONCERNED CIT 4. , ( ) / THE CIT(A)-4, VADODARA 5. /01 ((*+ , *+# , ) / DR, ITAT, AHMEDABAD 6. 145 6 / GUARD FILE. / BY ORDER, / ( //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION 23.12.20 (WORD PROCESSED BY HONBLE AM IN HIS COMPUTER BY DR AGON) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 23.12.2020 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.5.1.2021 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 5.1.2021 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER