AJMER VIDHYUT VITRAN NIGAM LTD., Ajmer V. ACIT, Ajmer

MA 20/JPR/2018

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 5777 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-02-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 24-11-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJ MEHRA
• Assessee Lawyers: SUNIL PORVAL
• Keywords: Depreciation
• Section: 143(3); 115JB; 32; 154

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKWY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ MA NO.20/JP/2018 (ARISING OUT OF ITA NO. 368/JP/2016) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 M/S AJMER VIDYUT VITRAN NIGAM LTD., CITY POWER HOUSE, JAIPUR CUKE VS. THE ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE-2, AJMER LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AACCA8562E VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI SUNIL PORVAL & SHRI ASHOK GUPTA (CA ) JKTLO DH VKSJ LS @ REVENUE BY : SHRI RAJ MEHRA (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 09/02/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 12/02/2018 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS MISCELLANEOUS APPLICATION HAS BEEN FILED AGAIN ST THE ORDER PASSED BY THE CO-ORDINATE BENCH IN ITA NO. 368/JP/2 016 DATED 28.08.2017 FOR AY 2008-09. 2. IN ITS APPLICATION, THE ASSESSEE HAS SUBMITTED T HAT THE TRIBUNAL HAS PASSED THE ORDER WHEREIN YOUR GOODSELF HAS NOT CLARIFIED THE ISSUE REGARDING DISALLOWANCE OF DEPRECIATION ON STOLEN FI XED ASSETS WORTH M.A. NO. 20/JP/2018 M/S AJMER VIDYUT VITRAN NIGAM LTD., AJMER VS. ACIT, AJMER 2 RS. 1.49 CRORE, ON NON-EXISTENCE ASSETS, ON ASSETS LYING IDLE AND EXCESS DEPRECIATION UNDER SECTION 32 R.W.S 43(1) OF THE AC T. THUS IT IS REQUESTED TO KINDLY PROVIDE NECESSARY CLARIFICATION IN THIS REGARD. 3. IN THE CONSOLIDATED ORDER PASSED BY THE COORDINA TE BENCH IN THE CASE OF THE ASSESSEE DATED 28.08.2017, THE RELEVANT FINDINGS ARE AS UNDER:- 36. FOR AY 2008-09, THERE ARE TWO APPEALS FILED BY THE ASSESSEE. IN ITA NO. 369/JP/2016, THE ASSESSEE HAS CHALLENGED TH E ORDER OF LD. CIT(A) DATED 20.01.2016 PASSED PURSUANT TO THE ASSE SSMENT ORDER U/S 143(3) OF THE ACT AND HAS TAKEN GROUNDS OF APPEAL R ELATING TO DISALLOWANCE OF DEPRECIATION ON NON-EXISTING ASSETS , DISALLOWANCE OF DEPRECIATION UNDER SECTION 32 R/W SECTION 43(1) OF THE ACT AND APPLICABILITY OF MAT PROVISIONS UNDER SECTION 115JB OF THE ACT. IN ITA NO. 368/JP/2016, THE ASSESSEE HAS CHALLENGED THE OR DER OF LD. CIT(A) DATED 20.01.2016 PASSED PURSUANT TO THE RECT IFICATION ORDER U/S 154 OF THE ACT AND HAS TAKEN GROUNDS OF A PPEAL CHALLENGING ACTION OF AO INVOKING PROVISIONS OF SEC TION 154 ON ISSUES WHICH ARE NOT MISTAKE APPARENT FROM RECORD, APPLICABILITY OF MAT PROVISIONS UNDER SECTION 115JB OF THE ACT, DISALLOWANCE OF DEPRECIATION ON STOLEN FIXED ASSETS WORTH RS. 1.49 CRORES, ON NON-EXISTENCE ASSETS, ON ASSETS LYI NG IDLE AND EXCESS DEPRECIATION UNDER SECTION 32 R/W SECTION 43 (1) OF THE ACT. IN ITA NO. 360/JP/2016, THE REVENUE HAS CHALLENGED THE ACTION OF LD. CIT(A) IN DELETING THE DISALLOWANCE OF EXCESS D EPRECIATION CLAIMED BY THE ASSESSEE COMPANY AMOUNTING TO RS. 12,61,87,639/ - WHILE WORKING OUT THE BOOK PROFITS AS PER PROVISIONS OF SECTION 1 15JB OF THE ACT. M.A. NO. 20/JP/2018 M/S AJMER VIDYUT VITRAN NIGAM LTD., AJMER VS. ACIT, AJMER 3 37. WE HAVE EXAMINED THE SUBJECT ISSUES IN DETAIL I N ITA NO. 362/JP/16 FOR AY 2004-05 RELATING TO DISALLOWANCE O F DEPRECIATION ON NON-EXISTING ASSETS, DISALLOWANCE OF EXCESS DEPR ECIATION UNDER SECTION 32 R/W SECTION 43(1) OF THE ACT AND APPLICA BILITY OF MAT PROVISION UNDER SECTION 115JB OF THE ACT. UNDISPUTEDLY, BOTH THE PARTIES AGREED THAT THE FACT S AND CIRCUMSTANCES OF THE CASE ARE IDENTICAL. OUR FINDIN GS AND DIRECTIONS CONTAINED IN ITA NO. 362/JP/2016 SHALL A PPLY MUTANDIS TO THIS APPEAL AS WELL. 38. IN ITA NO. 368/JP/2016, THE ASSESSEE HAS CHALLENGED THE ACTION OF THE AO WHERE HE HAS CARRIE D OUT VARIOUS ADJUSTMENTS RELATING TO DEPRECIATION WHILE WORKING OUT THE BOOK PROFITS FOR THE PURPOSES OF COMPUTING THE MAT LIABILITY UNDER SECTION 115JB OF THE ACT AND PASSED AN ORDER UNDER SECTION 154 OF THE AC T. SIMILARLY, REVENUE IN ITS APPEAL IN ITA NO. 360/JP/ 16 HAS RAISED GROUND RELATING TO DEPRECIATION ADJUSTMENT WHILE WO RKING OUT THE BOOK PROFITS AS PER PROVISIONS OF SECTION 115JB OF THE ACT. AS WE HAVE HELD ABOVE IN ITA NO. 362/JP/16 THAT THE PROVI SIONS OF SECTION 115JB ARE NOT APPLICABLE TO THE ASSESSEE COMPANY, THE SUBJECT GROUNDS OF APPEAL BECOMES ACADEMIC AND ARE DISMISSED BEING INFRUCTIOUS. 39. WITH THE ABOVE DIRECTIONS, THE GROUNDS OF APPEA L FOR AY 2008-09 ARE DISPOSED OFF. M.A. NO. 20/JP/2018 M/S AJMER VIDYUT VITRAN NIGAM LTD., AJMER VS. ACIT, AJMER 4 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. THE SUBJECT APPEAL OF THE ASSE SSEE HAS BEEN FILED IN THE CONTEXT OF ORDER PASSED U/S 154 BY THE ASSES SING OFFICER OF THE ACT WHEREIN THE AO HAS MADE CERTAIN ADDITIONS TO TH E BOOK PROFITS AS UNDER: (I) DEPRECIATION ON STOLEN ASSETS RS. 3,00,000/- (II) DEPRECIATION ON NON EXISTING ASSETS RS. 3,07 ,41,580/- (III) DEPRECIATION ON ASSETS LYING IDLE OR UNSERVICEABLE I.E. NOT PUT TO USE RS. 7,75,00,00 0/- (IV) IRREGULAR ALLOWANCE OF DEPRECIATION RS. 8,31 ,00,000/- REVISED BOOK PROFIT RS. 34,74,59,893/- 5. THE ABOVE ADDITIONS SO MADE BY THE AO WHILE PASS ING THE ORDER UNDER SECTION 154 WAS FOR THE PURPOSES OF DETERMINI NG THE BOOK PROFITS AND THE REVISED BOOK PROFIT SO DETERMINED WAS FOR T HE PURPOSES OF DETERMINING THE LIABILITY UNDER MAT U/S 115JB OF TH E ACT AND NOT UNDER THE NORMAL PROVISIONS OF THE ACT. WHILE DECIDING T HE APPEAL OF THE ASSESSEE, WE HAVE CLEARLY HELD THAT THE PROVISIONS OF SECTION 115JB ARE NOT APPLICABLE TO THE ASSESSEE COMPANY. IN VIEW OF THE SAME, IT WAS HELD THAT THE SUBJECT GROUNDS OF APPEAL RELATING TO ADJUSTMENTS TO THE BOOKS PROFIT BECOMES ACADEMIC AND WERE DISMISSED BE ING INFRUCTIOUS IN NATURE. 6. IN VIEW OF THE ABOVE, WE DO NOT THINK THERE IS ANY MISTAKE WHICH HAS CREPT IN THE ORDER PASSED BY THE COORDINATE BEN CH IN ITA NO. 368/JP/2016 AND HENCE, THE MISC. APPLICATION SO FIL ED BY THE ASSESSEE IS DISMISSED. M.A. NO. 20/JP/2018 M/S AJMER VIDYUT VITRAN NIGAM LTD., AJMER VS. ACIT, AJMER 5 ORDER PRONOUNCED IN THE OPEN COURT ON 12/02/2018. SD/- SD/- FOT; IKWY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 12/02/2018. * GANESH KR VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S AJMER VIDYUT VITRAN NIGAM LTD., AJMER 2. IZR;FKHZ@ THE RESPONDENT- ACIT, AJMER 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { M.A. NO. 20/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR