BIRYAS FINANCE AND INVESTMENTS PVT. LTD., MUMBAI V. ITO -WD- 2(1)(2), MUMBAI

MA 220/MUM/2020

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 4842 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-05-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 04-09-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SATYA DINISETTY LD
• Assessee Lawyers: DEVENDER J AIN LD AR KLHIM
• Keywords: Depreciation; Rectification of order; Cost of acquisition; Capital Gains
• Section: 43

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI , , BEFORE SHRI SAKTIJIT DEY, JM AND SHRI MANOJ KUMAR AGGARWAL, AM (HEARING THROUGH VIDEO CONFERENCING MODE) MA NO.220/MUM/2020 (ARISING OUT OF ITA NO. 3141/MUM/2018) ( / ASSESSMENT YEAR: 2014-15) BI R YAS FINANCE AND INVESTMENTS PVT. LIMITED C/O V.VAIDYANATHAN & CO. D-704, NEELKANTH BUSINESS PARK NATHANI ROAD, VIDYAVIHAR (W), MUMBAI-400 086. / VS. INCOME TAX OFFICER - WARD - 2 (1 )(1) AAYKAR BHAVAN, M.K. ROAD MUMBAI-400 020. 9:;<= ./ = ./ PAN/GIR NO. AAACB - 4171 - G ( G HI /APPELLANT ) : (KLHI / RESPONDENT ) G HIM / APPELLANT BY : SHRI DEVENDER J AIN - LD. AR KLHIM/ RESPONDENT BY : SHRI SATYA DINISETTY- LD. DR / DATE OF HEARING : 26/03/2021 / DATE OF PRONOUNCEMENT : 18/05/2021 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER):- 1. BY WAY OF THIS APPLICATION, THE ASSESSEE SEEK RE CALL / RECTIFICATION OF ORDER PASSED IN CAPTIONED APPEAL ON 13/11/2019. THE ASSESSEES APPEAL HAS BEEN PARTLY ALLOWED FOR STATISTICAL PURPOSES. 2 2.1 THE LD. AR SUBMITTED THAT GROUND NO.1 RELATING TO APPLICABILITY OF PROVISIONS OF SEC.50 IN RESPECT OF TRANSACTION INVO LVING TRANSFER OF AN IMMOVEABLE PROPERTY BY THE ASSESSEE HAS BEEN DISMIS SED BY THE BENCH BY OBSERVING THAT THE ASSESSEE COULD NOT DEMONSTRATE T HAT DEPRECATION WAS NEVER CLAIMED AGAINST THE SAID PROPERTY SINCE ITS A CQUISITION. THE LD. AR SUBMITTED THAT DURING HEARING VARIOUS EVIDENCES WER E SUBMITTED IN SUPPORT OF THE FACT THAT DEPRECIATION WAS NEVER CLAIMED ON IMMOVEABLE PROPERTY. THE ASSESSEE HAD ALSO FILED STATEMENT OF ACCOUNTS F OR THE YEAR ENDING 31/03/2011 TO 31/03/2014 WHICH HAVE INADVERTENTLY B EEN OMITTED TO BE CONSIDERED. THEREFORE, THE ORDER IS ERRONEOUS. 2.2 THE LD. AR FURTHER SUBMITTED THAT THE OTHER ISS UE WAS RELATED TO DISALLOWANCE OF DIRECT EXPENDITURE WHILE COMPUTING THE CAPITAL GAINS. WHILE ADJUDICATING THE SAME, THE BENCH FAILED TO CONSIDER THE FACT THAT PROPERTY TAX OF EARLIER YEARS AND BEST DEPOSITS WERE CAPITALIZED WITH PROPERTY AND CLAIMED AGAINST SALE PROCEEDS. FURTHER, THE ISSUE O F ALLOWABILITY OF REMAINING EXPENDITURE HAS BEEN SENT BACK WITHOUT CO NSIDERING THE RELEVANT EVIDENCES SUBMITTED BY THE ASSESSEE IN THE PAPER-BO OK. 2.3 THE LD. DR, ON THE OTHER HAND, SUBMITTED THAT T HERE WAS NO MISTAKE APPARENT FROM RECORD WHICH WOULD NECESSITATE INTERF ERENCE U/S 254(2). 3. WE HAVE CAREFULLY CONSIDERED THE APPLICATION AND ARGUMENTS PUT FORTH BY LD. AR BEFORE US. WE FIND THAT THE ASSESSEE HAD FILED 43 PAGES PAPER- BOOK WHICH WAS DULY CONSIDERED BY THE BENCH WHILE A DJUDICATING THE ISSUES. UPON PERUSAL OF THESE DOCUMENTS, A CONCLUSION WAS R EACHED IN PARA 4 OF THE ORDER THAT THE ASSESSEE COULD NOT ESTABLISH THA T THE PROPERTY WAS NOT PART OF BLOCK OF ASSET AND DEPRECIATION AGAINST THE SAME WAS NEVER CLAIMED 3 IN EARLIER YEARS. THE PERUSAL OF RECORD WOULD REVEA L THAT THE ASSESSEE HAD PURCHASED THE PROPERTY ON 31/12/2010 AND THE QUESTI ON OF CLAIMING DEPRECIATION WOULD ARISE IN AYS 2011-12 ONWARDS. HO WEVER, EXCEPT FOR COMPUTATION OF AY 2013-14, NO COMPUTATION OF INCOME FOR AYS 2011-12 & 2012-13 WAS PLACED ON RECORD. SIMILAR WAS THE OBSER VATION OF LD. CIT(A) IN THE IMPUGNED ORDER. HENCE, THE OBSERVATION OF THE B ENCH IN PARA-4 OF THE ORDER. THEREFORE, WE DO NOT FIND ANY MISTAKE IN THE ORDER, ON THIS ISSUE. 4. REGARDING ALLOWANCE OF PROPERTY TAX AND BEST DEP OSIT (ELECTRICITY), THE FACT THAT THE EXPENDITURE WAS CAPITALIZED OR NO T, WOULD NOT BE MUCH GERMANE TO DECIDE THE DEDUCTIBILITY OF SUCH EXPENDI TURE WHILE COMPUTING CAPITAL GAINS SINCE THE DEDUCTION WOULD BE AVAILABL E ONLY AS PER COMPUTATIONAL MECHANISM PROVIDED IN LAW. THESE TWO EXPENDITURES COULD NOT BE SAID TO BE PART OF COST OF ACQUISITION OR IM PROVEMENT. THE ISSUE OF DEDUCTIBILITY OF OTHER EXPENDITURE HAS ALREADY BEEN RESTORED BACK ON THE FACTS OF THE CASE SINCE THE ASSESSEE HAD FAILED TO SUBSTANTIATE THE SAME. 5. IN VIEW OF THE FOREGOING, WE DO NOT FIND ANY ERR OR IN THE ORDER IN TERMS OF SECTION 254(2). THE APPLICATION STANDS DISMISSED . ORDER PRONOUNCED ON 18 TH MAY, 2021. SD/- SD/- (SAKTIJIT DEY) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 18/05/2021 SR.PS:-JAISY VARGHESE 4 O;PQRS;R / COPY OF THE ORDER FORWARDED TO : 1. G HI / THE APPELLANT 2. KLHI / THE RESPONDENT 3. ZZ ( G ) / THE CIT(A) 4. ZZ / CIT CONCERNED 5. [ \K , ZG , / DR, ITAT, MUMBAI 6. \ _` / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.