The ITO, Ward-8(2), Ahmedabad V. Soham Cold Storage Pvt. Ltd., Ahmedabad

MA 210/AHD/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6136 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-02-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 22-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: TREA TING IT AS PLANT; MACHINERY IN PLACE OF ALLOWE
• Keywords: Depreciation

Judgement Text

IN IN IN IN THE INCOME TAX APPELLATE TRIBUNAL THE INCOME TAX APPELLATE TRIBUNAL THE INCOME TAX APPELLATE TRIBUNAL THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH AHMEDABAD BENCH AHMEDABAD BENCH AHMEDABAD BENCH SMC SMC SMC SMC BEFORE BEFORE BEFORE BEFORE SHRI SHRI SHRI SHRI BHAVNESH SAINI BHAVNESH SAINI BHAVNESH SAINI BHAVNESH SAINI, JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER AND AND AND AND SHRI N.S. SAINI, ACCOUNTANT MEMBER SHRI N.S. SAINI, ACCOUNTANT MEMBER SHRI N.S. SAINI, ACCOUNTANT MEMBER SHRI N.S. SAINI, ACCOUNTANT MEMBER DATE OF HEARING:11-2-11. DRAFTED ON: 11-2-11. M.A. NO. 2 1 0 / AHD/20 1 0 (ARISING OUT OF ITA NO.1905/AHD/2007) ASSESSMENT YEAR :2004-05 THE INCOME TAX OFFICER, WARD 8(2), A\4 TH FLOOR, AJANTA COMMERCIAL CENTRE, ASHRAM ROAD, AHMEDABAD. VS SOHAM COLD STORAGE PVT. LTD., 1- LAXMI COMPLEX, HIGHWAY, SABARMATI, AHMEDABAD. PAN/GIR NO. : AAFCS 2067M (A PPELLANT ) .. ( RESPONDENT ) B Y REVENUE : SHRI K. MADHUSUDAN D.R. B Y RESPONDENT : NONE. O R D E R O R D E R O R D E R O R D E R PER N.S.SAINI , ACCOUNTANT MEMBER :- THIS IS A MISCELLANEOUS APPLICATION FILED BY THE REVENUE AGAINST THE ORDER OF THE TRIBUNAL DATED 29- 3-2010 PASSED IN ITA NO.1905/AHD/2007 FOR THE ASSESSMENT Y EAR 2004-05. 2. IN THE MISCELLANEOUS APPLICATION, THE REVENUE HA S STATED THAT THERE IS AN APPARENT MISTAKE IN THE ORD ER OF THE TRIBUNAL DATED 29-3-2010 IN UPHOLDING THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IN ALL OWING DEPRECIATION @ 25% ON COLD STORAGE BUILDING BY TREA TING IT AS PLANT AND MACHINERY IN PLACE OF 10% ALLOWED BY T HE LEARNED ASSESSING OFFICER BY TREATING IT AS BUILDIN G IN AS MUCH AS A SIMILAR ISSUE HAD COME UP BEFORE THE TRIB UNAL IN THE IMMEDIATELY PRECEDING ASSESSMENT YEAR 2003-0 4 WHEREIN THE TRIBUNAL VIDE ITS ORDER DATED 31-12-200 8 IN - 2 - ITA NO.1984/AHD/2006 SET ASIDE THE ISSUE TO THE FIL E OF THE LEARNED ASSESSING OFFICER TO ASCERTAIN THE SPECIFICATION OF THE BUILDING, ITS PURPOSE AND USE AND THEN DECIDE THE ISSUE AS PER LAW. IT IS THEREFORE, PRAYE D THAT THE ORDER OF THE TRIBUNAL DATED 29-3-2010 BE RECTIF IED TO THAT EXTENT ON MERITS OF THE CASE. 3. NOTICE OF HEARING WAS SENT TO THE RESPONDENT ASSESSEE ON 29-12-2010 BY REGISTERED POST WITH ACKNOWLEDGEMENT DUE AND THE SAME HAD NOT BEEN RETURNED BACK BY THE POSTAL AUTHORITIES UNSERVED. I T IS THEREFORE, DEEMED THAT THE NOTICE WAS SERVED ON THE ASSESSEE. NONE APPEARED ON BEHALF OF THE ASSESSEE W HEN THE CASE WAS CALLED FOR HEARING AND NEITHER ADJOURN MENT APPLICATION WAS FILED. THEREFORE, THE BENCH PROCEED ED TO DISPOSE OFF THE MISC,. APPLICATION CONSIDERING THE ARGUMENTS OF THE LEARNED DEPARTMENTAL REPRESENTATIV E AND THE MATERIAL AVAILABLE ON RECORD. 4. AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENT ATIVE AND PERUSING THE MATERIAL ON RECORD WE FIND THAT TH E TRIBUNAL IN ITS ORDER DATED 3-2-2010 IN ITA NO.1905/AHD/2007 FOR ASSESSMENT YEAR 2004-05 HAS HE LD AS UNDER:- 6. WE HAVE HEARD THE LEARNED DEPARTMENTAL RE PRESENTATIVE AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE ON RECORD. THE ASSESSEE CLAIMED DEPRECIAT ION @ 25% ON COLD STORAGE BUILDING BY CONSIDERING THE SAME AS PL ANT WHICH WAS ALLOWED BY THE LEARNED ASSESSING OFFICER @ 10% BY T REATING THE SAME AS BUILDING RELYING ON THE DECISION OF SUPREME COU RT IN THE CASE OF ANAND THEATERS 244 ITR 192. IN APPEAL, THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) ALLOWED THE CLAIM OF THE ASSESS EE FOLLOWING THE DECISION OF THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. SHREE GOPIKISHAN INDUSTRIES (CAL) 262 ITR 568 AND THE DECISION OF THE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. KANODIA COLD STORAGE 100 ITR 155 BY OBSERVING AS UNDER:- 3.2 THE APPELLANT, DURING THE COURSE OF APPELLATE PROCEEDINGS, - 3 - HAS SUBMITTED THAT THE COLD STORAGE IS REQUIRED TO BE CONSTRUCTED AND MAINTAINED AS TO BE DAMP PROOF, HEA T PROOF AND PROTECTED AGAINST ENTRY OF OR DAMAGE TO THE STORED AGRICULTURE AND OTHER PRODUCE BY PESTS, NOXIOUS INSECTS, RATS A ND OTHER RODENTS. THE SAME IS TO BE PROVIDED WITH INSULATIO N OF THE FLOORS, ROOFS AND DOORS AND INSULATION AND WATER PR OOFING TREATMENT IS TO BE DONE IN A PROPER MANNER IN ACCOR DANCE WITH COLD TEMPERATURE TO HE MAINTAINED BELOW OR ABOVE FR EEZING POINT. THE APPELLANT HAS. THEREFORE SUBMITTED TH AT THE STORAGE OR CHAMBER ITSELF IS AN APPARATUS AND TOOL OF THE T RADE THROUGH WHICH THE BUSINESS IS CARRIED ON AND THE INSULATION WITHOUT THE BUILDING CANNOT PRODUCE THE RESULT AND THE BUILD ING WITHOUT THE INSULATION ALSO EQUALLY DISASTROUS FOR THE PUR POSE. THEREFORE, IT WAS CONTENDED THAT THE COLD STORAGE P LANT IS DIFFERENT FROM THE OTHER NORMAL BUILDING BECAUSE WI THOUT THE COLD STORAGE PLANT IT IS NOT POSSIBLE TO CARRY ON T HE BUSINESS OF COLD STORAGE. IN SUPPORT OF ITS CONTENTIONS, THE AP PELLANT PLACED SEVERAL COURT DECISIONS, SUCH AS 100 1TR 155-C1T V. KANODIA COLD STORAGE (ALL); 262ITR 568- CIT VS. SHREE GOPIK ISHAN INDUSTRIES (CAL.) ETC. IT WAS FURTHER SUBMITTED BY THE APPELLANT THAT THE C1T (A) HAS DELETED THE ADDITION MADE BY T HE ASSESSING OFFICER FOR A.Y. 2003-04 ON THIS COUNT. 7. THE LEARNED DEPARTMENTAL REPRESENTATIVE MERELY RELIED ON THE ORDER OF THE LEARNED ASSESSING OFFICER. NEIT HER COULD HE POINT OUT ANY SPECIFIC ERROR IN THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) NOR COULD HE CITE ANY CONTRARY DECISION OF HIGH COURT OR SUPREME COURT TO THAT RELIED UPON BY THE L EARNED COMMISSIONER OF INCOME TAX(APPEALS). THEREFORE, WE CONFIRM THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) AND DISMISSED THE GROUND OF APPEAL OF THE REVENUE . 5. THUS, IT IS SEEN THAT DURING THE COURSE OF HEARING OF THE APPEAL THE LEARNED DEPARTMENTAL REPRESENTATIVE HAD ONLY RELIED ON THE ORDER OF THE LEARNED ASSESSING OFFICE R. THE ORDER OF THE TRIBUNAL FOR ASSESSMENT YEAR 2003-04 NOW REF ERRED TO IN THE MISCELLANEOUS APPLICATION WAS NOT FILED BEFORE THE TRIBUNAL AT THE TIME OF THE ORIGINAL HEARING OF THE APPEAL. THUS, THE TRIBUNAL DECIDED THE ISSUE AFTER CONSIDERING THE SU BMISSIONS OF THE LEARNED DEPARTMENTAL REPRESENTATIVE MADE DUR ING THE APPEAL HEARING. THEREFORE, THERE IS NO MISTAKE IN T HE ORDER OF THE TRIBUNAL PASSED ON 29-3-2010 WHICH CAN BE RECTI FIED UNDER SECTION 254(2) OF THE ACT. BY THIS MISCELLANEOUS AP PLICATION - 4 - THE DEPARTMENT WANTS US TO REVIEW OUR ORDER DATED 2 9 - 3 - 2010 WHICH IS NOT PERMISSIBLE UNDER SECTION 254(2) OF TH E ACT. HENCE WE FIND NO MERIT IN THE MISCELLANEOUS APPLICA TION FILED BY THE REVENUE AND THEREFORE, THE SAME IS DISMISSED . ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE HEARING ON 11 TH FEBRUARY,2011. SD/- SD/- ( (( (BHAVNESH SAINI BHAVNESH SAINI BHAVNESH SAINI BHAVNESH SAINI ) )) ) ( N.S. SAINI ) ( N.S. SAINI ) ( N.S. SAINI ) ( N.S. SAINI ) JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER AHMEDABAD: ON THIS 11 TH DAY OF FEBRUARY, 2011 PATKI COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS)- 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD DATE INITIALS 1. DRAFT DICTATED ON 11-2-11 ----------- ----- 2. DRAFT PLACED BEFORE AUTHORITY 11-2-11 - --------------- 3. DRAFT PROPOSED & PLACED ---- ----------JM BEFORE THE SECOND MEMBER 11-2-11 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 11-2-11 ------------------ 5. APPROVED DRAFT COMES TO P.S 11-2-11 -------------------- 6. KEPT FOR PRONOUNCEMENT ON 11-2-11 -------------------- 7. FILE SENT TO THE BENCH CLERK 15-2-1 1 --------------------- 8. DATE ON WHICH FILE GOES TO THE A.R. -- ------------------ 9. DATE OF DISPATCH OF ORDER ---------- ------ ------------------