The Dy.CIT, (Exemption), Circle-2, Ahmedabad V. Animal Breeding Research Organization (India), Anand

MA 126/AHD/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8701 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 1 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-07-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 03-05-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RUCHI RASTOGI
• Keywords: Depreciation; Unabsorbed depreciation; Capital expenditure

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, AHMEDABAD BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER AND SHRI AMARJIT SINGH , ACCOUNTANT MEMBER M.A NO .126 /AHD/2018 IN ./ C.O. NO .184 / AHD / 2015 / ASSTT. YEAR: 2011 - 2012 D .C.I.T, (EXEMPTIONS), CIRCLE - 2, AHMEDABAD . VS M/S ANIMAL BREEDING RESEARCH ORGANIZATION(INDIA) C/O NDDB, NEAR JAGNATH MAHADEV, ANAND PAN: AAATA3919Q (APPLICANT) ( RESPON D ENT ) REVENUE BY : MS . RUCHI RASTOGI , SR. D.R ASSESSEE BY : SHRI SANJAY R. SHAH , A.R / DATE OF HEARING : 05 / 04 /201 9 / DATE OF PRONOUNCEMENT: 02 / 07 /201 9 / O R D E R PER MAHAVIR PRASAD, JUDICIAL MEMBER : BY THIS MISCELLANEOUS APPLICATION, THE REVENUE HAS REQUESTED FOR THE RE - ADJUDICATION OF THE GROUND NO. 3 RAISED BY THE ASSESSEE IN ITS CO AS THE SAME HAS NOT BEEN DEALT BY THE ITAT IN ITS ORDER DATED 09.11.2017 THE CONTENTS OF THE MISCELLANEOUS APPLICATION OF THE REVENUE READ AS UNDER: M.A NO .126 /AHD/2018 IN CO.184/AHD/2015 A.Y .2011 -- 12 2 2. IN THIS CASE, THE HON BLE ITAT HAS ALLOWED THE GROUND NO.3 IN CO BY DIRECTING THE A.O TO ALLOW SET OFF BROUGHT DEFICIT. BUT, IN ACTUAL BY FILING C.O. NO.184/AHD/2015 ASSESSEE HAD REQUESTED THE HON BLE ITAT TO ALLOW CARRY FORWARD OF UNABSORBED DEPREICATION. THUS, APPEAL IS DISMISSED ON THE GROUND WHICH IS FACTUALLY INCORRECT. 3. IT IS THEREFORE REQUESTED, THAT THE ISSUE MAY BE KINDLY BE RE - ADJUDICATED. 4. IN VIEW OF THE ABOVE, THE MISC. APPLICATION IS BEING FILED TO DRAW ATTENTION OF THE HON BLE ITAT IN TH E ABOVE MATTER. 2. IN VIEW OF THE ABOVE, THE LEARNED DR BEFORE US SUBMITTED THAT THE ISSUE REGARDING THE CA RRY FORWARD OF THE UNABSORBED DE PRECIATION HA D NOT BEEN ADJUDICATED BY THE HON BLE ITAT INADVERTENTLY. THEREFORE HE PRAYED BEFORE US TO RECALL THE ISSUE AS DISCUSSED ABOVE AND FIX THE CASE FOR THE FRESH HEARING. 3. ON THE OTHER HAND, THE LEARNED AR BEFORE US SUBMITTED THAT THERE IS NO MISTAKE APPARENT FROM THE RECORD AS ALLEGED BY THE REVENUE. THE LD. AR VEHEMENTLY SUPPORTED THE ORDER OF THE TRIBUN AL. 4. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. ON PERUSAL OF THE GROUNDS/ISSUES BEARING NO. 3 RAISED BY THE ASSESSEE IN ITS CO, IT IS REVEALED THAT THE ASSESSEE HAS AGITATED FOR THE CLAIM OF THE UNABSORBED DEPRECIATION. 4.1 AS SUCH, THE AO DISALLOWED THE CLAIM OF THE ASSESSEE FOR THE UN - ABSORBED DEPRECIATION BY OBSERVING THAT THE ASSESSEE HAS ALREADY CLAIMED THE DEDUCTION OF THE CAPITAL EXPENDITURE BY WAY OF APPLICATION OF INCOME UNDER SECTI ON 11(1)(A) OF THE ACT. THUS THE SUBSEQUENT DEDUCTION OF THE DEPRECIATION ON SUCH CAPITAL EXPENDITURE WOULD LEAD M.A NO .126 /AHD/2018 IN CO.184/AHD/2015 A.Y .2011 -- 12 3 TO THE DOUBLE DEDUCTION TO THE ASSESSEE. THEREFORE, THE DEDUCTION FOR THE UNABSORBED DEPRECIATION WAS DENIED BY THE AO. 4.2 AGAINST THE FINDI NG OF THE AO, THE ASSESSEE PREFERRED AN APPEAL TO THE LEARNED CIT (A) WHO HAS NOT DECIDED THE ISSUE AS DISCUSSED ABOVE. ACCORDINGLY, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE ITAT , WHICH WAS DECIDED VIDE ORDER DATED 9 - 11 - 2017. 4.3 HOWEVER, ON PERUSAL OF THE ITAT ORDER DATED 9 TH NOVEMBER 2017 IT WAS OBSERVED THAT THE ITAT HAS DIRECTED TO ALLOW THE DEFICIT CARRIED FORWARD BY THE ASSESSEE FROM THE EARLIER YEARS. AS SUCH, WE FIND THAT THERE WAS NO DISCUSSION ABOUT THE UNABSORBED DEP RECIATION IN THE ORDER O F THE ITAT . 4.4 THEREFORE, WE ARE OF THE VIEW THE ORDER OF THE ITAT SUFFERS FROM THE APPARENT MISTAKE SO FAR IT HAS NOT DEALT WITH THE ISSUE RAISED BY THE ASSESSEE IN THE GROUNDS OF CO AS DISCUSSED ABOVE . ACCORDINGLY , WE ARE INCLINED TO RECALL THE CO OF THE ASSESSEE FOR THE LIMITED PURPOSE OF THE ADJUDICATION OF GROUND NO. 3 RAISED BY IT. HENCE, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS ALLOWED. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 02 / 07 / 201 9 AT AHMEDABAD. - SD - ( AMARJIT SINGH ) ACCOUNTANT MEMBER - SD - ( MAHAVIR PRASAD ) JUDICIAL MEMBER (TRUE COPY) AHMEDABAD; DATED 02 / 07 / 201 9