The Asstt. CIT, Circle-1(1)(1), Vadodara V. Gujarat Chemical Port Terminal Company Ltd., Bharuch

MA 39/SRT/2018

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 4719 (ITAT-SURAT)
• Duration Of Justice: 2 year(s) 1 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-02-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 10-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUPAMA SINGLA
• Keywords: Depreciation
• Section: 147

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, HON'BLE JUDICIAL MEMBER AND DR. ARJUN LAL SAINI, HON'BLE ACCOUNTANT MEMBER (VIRTUAL HEARING) MISCELLANEOUS APPLICATION NO.39/SRT/2018 (ARISING OUT OF I.T.A NO.2414/AHD/2015) [ [ / ASSESSMENT YEAR: 2011-12 THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-1(1)(1), VADODARA. V S. GUJARAT CHEMICAL PORT TERMINAL COMPANY LTD., PO LAKHIGAM, VIA DAHEJ, BHARUCH GUJARAT 392 130. [PAN: AAACG 6861 A] / APPELLANT /RESPONDENT [ /ASSESSEE BY SHRI BHAVIN MARFATIA CA /REVENUE BY SMT. ANUPAMA SINGLA SR.DR / DATE OF HEARING: 05 . 01 .20 2 1 /PRONOUNCEMENT ON: 02 . 0 2 .20 2 1 /O R D E R PER PAWAN SINGH, JUDICIAL MEMBER: 1. THIS MISCELLANEOUS APPLICATION (MA) IS FILED BY REVENUE FOR SEEKING RECTIFICATION IN THE ORDER DATED 23.05.2018. THE LEARNED DEPARTMENTAL REPRESENTATIVE (DR) FOR THE REVENUE SUBMITS THAT MAIN ISSUE INVOLVED IN THE APPEAL WAS WITH REGARD TO ADDITION OF RS.17,21,558/- ON ACCOUNT OF DISALLOWANCE OF EXCESS DEPRECIATION CLAIMED. THE ASSESSEE CLAIMED DEPRECIATION @15% INSTEAD OF 10% ON ELECTRONIC INSTALLATION. THE LD.CIT(A) DELETED THE ADDITION, WHICH WAS AFFIRMED BY THE TRIBUNAL IN ITS ORDER DATED 23.05.2018. THE ACIT, CIRCLE-1(1)(1), VADODARA VS. GUJARAT CHEMICAL PORT TERMINAL CO.LTD.,/ MA NO.39/SRT/2018 FOR A.Y. 2011-12 2 TRIBUNAL GRANTED RELIEF TO THE ASSESSEE WHILE RELYING ON PARA 9 OF ORDER OF THE TRIBUNAL IN ITA NO.3077 TO 3079 AND 3115 TO 3120/AHD/2011 DATED 13.11.2017 IN ASSESSEES OWN CASE FOR EARLIER YEARS. THE ISSUE INVOLVED IN ASSESSEES OWN CASE IS NOT ON THE SAME ISSUE, BEING DEPRECIATION OF ELECTRIC INSTALLATION, HOWEVER DEAL WITH DEPRECIATION ON JETTY AND TRESTLES. THUS, THE RELIEF ALLOWED ON EXCESS DEPRECATION ON ELECTRONIC INSTALLATION, CONSTITUTE A MISTAKE APPELLANT FROM RECORD AND THE ORDER IS LIABLE TO BE RECALLED. 2. ON THE OTHER HAND, THE LD. AUTHORISED REPRESENTATIVE (AR) OF THE ASSESSEE SUBMITS THAT THERE IS NO MISTAKE APPARENT IN THE ORDER AS ALLEGED BY THE REVENUE. THE LEARNED AR FOR ASSESSEE SUBMITS THAT THE TRIBUNAL WHILE DECIDING FOLLOWED THE ORDER OF TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y 2004-05. THUS, THERE IS NO MISTAKE AS ALLEGED BY THE REVENUE. THE LD.AUTHORISED REPRESENTATIVE FURTHER SUBMITS THAT ASSESSEE IS A PUBLIC LIMITED COMPANY AND ENGAGED IN THE BUSINESS OF PORT AND PORT RELATED ACTIVITIES. THE ASSESSEE CARRIES OUT ITS BUSINESS ACTIVITY USING JETTY & TRESTLES. IN EARLIER YEARS, THE ASSESSING OFFICER RESTRICTED THE CLAIM OF DEPRECATION JETTY AND TRESTLES CONSIDERING THAT JETTY AND TRESTLES AS BUILDING AS AGAINST PLANT AND MACHINERY AS CLAIMED BY ASSESSEE. THE ASSESSING OFFICER ALSO RESTRICTED THE CLAIM OF DEPRECIATION ON ELECTRICAL ACIT, CIRCLE-1(1)(1), VADODARA VS. GUJARAT CHEMICAL PORT TERMINAL CO.LTD.,/ MA NO.39/SRT/2018 FOR A.Y. 2011-12 3 INSTALLATION IN RESPECT TO JETTY AND TRESTLES, AGGRIEVED BY THE ORDER OF ASSESSING OFFICER IN RESTRICTING THE DEPRECIATION THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THIS TRIBUNAL. AND THE ISSUE WAS DECIDED IN FAVOUR OF ASSESSEE VIDE ORDER DATED 13.11.2017. THE CASE OF ASSESSEE FOR A.Y. 2004-05 [IN ITA NO.3117/AHD/2011] WAS REOPENED UNDER SECTION 147 OF THE ACT AND ADDITION WAS MADE ON ACCOUNT OF EXCESS DEPRECIATION OF ELECTRICAL INSTALLATION. THE LD. CIT(A) DECIDED THE ISSUE IN FAVOUR OF ASSESSEE, AND ON APPEAL BY REVENUE BEFORE TRIBUNAL, THE ACTION OF LD.CIT(A) WAS AFFIRMED. THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE ALSO REFERRED THE GROUNDS OF APPEAL FOR REFERENCE, THE GROUNDS OF APPEAL IS REPRODUCED BLOW IN ITA NO.3117/AHD/2011 FOR A.Y. 2004-05: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (APPEALS) ERRED IN DIRECTING THE ASSESSING OFFICER TO ALLOW DEPRECIATION @ 25% ON THE ELECTRICAL INSTALLATION IN RESPECT OF JETTY & TRESTLE TREATING THE SAME AS FORMING PART OF PLANT AND MACHINERY AS AGAINST THE DEPRECIATION ALLOWED BY THE ASSESSING OFFICER @ 15% TREATING THE JETTY & TRESTLE AS PART OF BUILDING, AND THEREBY DELETED ADDITION OF RS 1,35,00,332/- MADE ON ACCOUNT OF DISALLOWANCE OF EXCESS CLAIM OF DEPRECIATION. 3. AFTER REFERRING THE ABOVE GROUND OF APPEAL, THE AUTHORISED REPRESENTATIVE FOR ASSESSEE SUBMITS THAT THE ISSUE CONTESTED BY THE REVENUE FOR A.Y. 2004-05 IN ITA NO.311/AHD/2011 WAS WITH REGARD TO ELECTRICAL INSTALLATION IN RESPECT OF JETTY & TRESTLE (FITTINGS OF ELECTRIC INSTALLATION/EMBEDDED). THE ACIT, CIRCLE-1(1)(1), VADODARA VS. GUJARAT CHEMICAL PORT TERMINAL CO.LTD.,/ MA NO.39/SRT/2018 FOR A.Y. 2011-12 4 TRIBUNAL AFTER CONSIDERING ALL THE FACTS HAS DECIDED THE ISSUE ON DEPRECIATION OF ELECTRICAL INSTALLATION IN RESPECT OF JETTY & TRESTLE IN FAVOUR OF ASSESSEE. FOR THE YEAR UNDER CONSIDERING, THE TRIBUNAL FOLLOWED THE ORDER FOR A.Y. 2004-05. THE AUTHORISED REPRESENTATIVE SUBMITS THAT THERE IS NO ERROR AS REFERRED IN MISCELLANEOUS APPLICATION BY REVENUE. THE ISSUE IN THE PRESENT APPEAL ARE IDENTICAL TO THE EARLIER YEARS. 4. WE HAVE CONSIDERED THE SUBMISSION OF BOTH THE PARTIES AND HAVE GONE THROUGH THE ORDER OF OUR PREDECESSOR DATED 23.05.2018. WE HAVE NOTED THAT OUR PREDECESSOR WHILE ADJUDICATING THE GROUNDS OF APPEAL FOLLOWED THE ORDER IN ASSESSEES OWN CASE FOR EARLIER YEARS IN ITA NO.3077 TO 3079 AND 3115 TO 3120/AHD/2011 DATED 13.11.2017. BEFORE OUR PREDECESSOR, IT WAS CONTENDED THAT THE ISSUE IS COVERED IN FAVOUR OF ASSESSEE. THE CONTENTION OF ASSESSEE WAS NOT CONTROVERTED (RATHER THE DEPARTMENTAL REPRESENTATIVE CONCURRED WITH THE SUBMISSION OF AR OF ASSESSEE). AFTER CONSIDERATION, THE CONTENTION OF BOTH THE PARTIES OUR PREDECESSOR FOLLOWED THE ORDER OF EARLIER YEARS FOR GRANTING RELIEF OF DEPRECIATION @ 15% INSTEAD OF 10% ON ELECTRICAL INSTALLATION IN RESPECT OF JETTY & TRESTLES. WE HAVE FURTHER NOTED THAT IN APPEAL FOR A.Y. 2004-05 IN ITA NO.3117/AHD/2011 SIMILAR RELIEF WAS GRANTED BY THE ACIT, CIRCLE-1(1)(1), VADODARA VS. GUJARAT CHEMICAL PORT TERMINAL CO.LTD.,/ MA NO.39/SRT/2018 FOR A.Y. 2011-12 5 LD.CIT(A), WHICH AFFIRMED BY THE TRIBUNAL. OUR PREDECESSOR WHILE CONSIDERING THE APPEAL OF REVENUE FOR A.Y. 2011-12 FOLLOWED THE ORDER OF EARLIER YEAR. THEREFORE, WE DO NOT FIND ANY MERIT IN THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE. THE REVENUE FAILED TO BRING ANY MISTAKE, WHICH MAY BE CLASSIFIED AS MISTAKE APPARENT ON RECORD WITHIN THE SCOPE OF SECTION 254(2), HENCE THE APPLICATION FILED BY THE REVENUE IS DISMISSED. 5. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED. ORDER ANNOUNCED ON 02 FEBRUARY 2021 BY PLACING RESULT ON NOTICE BOARD SD/- SD/- (DR.ARJUN LAL SAINI) (PAWAN SINGH) ( /ACCOUNTANT MEMBER) ( /JUDICIAL MEMBER) / SURAT, DATED : 02 FEB 2021 / #SGR COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT