Emperor Textiles (P) Ltd., Tiruppur V. DCIT, Tiruppur

MA 4/CHNY/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4017 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-03-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2006-2007
• Appeal Filed On: 27-01-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A B KOLI
• Assessee Lawyers: VIJAYAKUMAR
• Keywords: Reopening of assessment; Depreciation; Rectification of order

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , D B ENCH, CHENNAI . , . , $ % BEFORE SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER AND SHRI G.PAVAN KUMAR, JUDICIAL MEMBER MISCELLANEOUS PETITION NO. 4/MDS/2016 ( ./ IN I.T.A.NO.1697/MDS/2013 ( / ASSESSMENT YEAR : 2006-07 ) M/S. EMPEROR TEXTILES P.LTD. 1, INDIRA NAGAR I STREET, AVINASHI ROAD, TIRUPUR. VS DEPUTY COMMISSIONER OF INCOME TAX, COMPANY CIRCLE, TIRUPUR. PAN:AAACE5287G (PETITIONER) ( /RESPONDENT) APPLICANT BY : MR. VIJAYAKUMAR, C.A. /RESPONDENT BY : MR. A.B.KOLI, JCIT /DATE OF HEARING : 4 TH MARCH, 2016 /DATE OF PRONOUNCEMENT : 4 TH MARCH, 2016 / O R D E R PER A. MOHAN ALANKAMONY, AM: THE MISCELLANEOUS PETITION IS FILED BY THE ASSESS EE PRAYING FOR RECTIFICATION OF MISTAKE BY RECALLING T HE ORDER OF THE TRIBUNAL PASSED IN ITA NO.1697/MDS/2013 DATED 10.04.2014 AS THE TRIBUNAL HAS NOT CONSIDERED THE G ROUND NOS. 5 TO 10 RAISED BY THE ASSESSEE. 2. BEFORE US, THE LEARNED AUTHORIZED REPRESENTATIVE SUBMITTED THAT THE TRIBUNAL IN ITS ORDER DATED 10.0 4.2014 THOUGH REMANDED THE ISSUE OF CHALLENGING THE VALIDI TY OF 2 MP NO.4/MDS/2016 REOPENING OF ASSESSMENT BACK TO THE FILE OF COMMIS SIONER OF INCOME TAX (APPEALS), THE TRIBUNAL HAS NOT ADJUDIC ATED THE FOLLOWING GROUNDS 5 TO 10 RAISED BY THE ASSESSEE :- 5. THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE LIABILITIES TO THE EXTENT OF ` 5,55,983/- AS DEDUCTIBLE FROM THE TOTAL ASSETS WHILE CALCULATING THE NET WORTH OF THE UNDERTAKING THAT WAS TRANSFERRED. 6. THE COMMISSIONER OF INCOME TAX (APPEALS) FAILED TO APPRECIATE THAT THE LIABILITIES RELATING TO THE BUS INESS OF PURCHASE AND SALE OF SHARES HAS BEEN TAKEN AS THE LIABILITIE S RELATING TO THE UNDERTAKING THAT WAS TRANSFERRED IN ARRIVING AT THE NET WORTH. 7. THE COMMISSIONER OF INCOME TAX (APPEALS) FAILED TO APPRECIATE THAT DEPRECIATION IS NOT CHARGEABLE ON T HE WRITTEN DOWN VALUE OF THE ASSETS IN THE YEAR OF SLUMP SALE. 8. THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED I N NOT ALLOWING THE INCIDENTAL EXPENSES OF ` 9,33,319/- IN ARRIVING AT THE CAPITAL GAIN ON SLUMP SALE. 9. THE COMMISSIONER OF INCOME TAX (APPEALS) FAILED TO APPRECIATE THAT THE INCIDENTAL EXPENSES WAS INCURRE D WHOLLY AND EXCLUSIVELY IN CONNECTION WITH THE TRANSFER AND HEN CE IS ALLOWABLE AS DEDUCTION IN ARRIVING AT THE CAPITAL GAIN AS PER THE PROVISIONS OF SECTION 48. 10. THE COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE APPRECIATED THAT ` 58,651/- RELATES TO THE ADDITION IN FIXED ASSETS MADE IN THE IMPUGNED YEAR AND THEREFORE ACTU AL COST OF THE ADDITION SHOULD BE TAKEN FOR CALCULATING THE NE T WORTH OF THE TRANSFER AND NO DEPRECIATION IS TO BE CHARGED ON TH ESE ASSETS. 3. WE FIND MERIT IN THE APPREHENSION OF THE LEARNED AUTHORIZED REPRESENTATIVE. HOWEVER, ON PERUSING THE ORDER OF THE TRIBUNAL IT IS APPARENT THAT THE TRIBUNAL HA S REMITTED BACK THE CASE TO THE FILE OF THE LEARNED COMMISSION ER OF INCOME TAX (APPEALS) FOR DECIDING ALL THE ISSUES RAISED IN 3 MP NO.4/MDS/2016 THE APPEAL AFRESH. FOR CLARITY, WE REPRODUCE THE RELEVANT LAST SENTENCE IN THE ORDER OF THE TRIBUNAL. THUS, WE REMAND THIS CASE BACK TO THE LEARNED COMMISSIONER OF INCOM E TAX (APPEALS) WHO SHALL DECIDE THE APPEAL AFRESH IN ACCORDANCE WITH LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF HEAR ING TO THE ASSESSEE. THEREFORE, IT IS EVIDENT FROM THE ORDER THAT THE ENTIRE CASE IS REMANDED BACK TO THE FILE OF THE LEA RNED COMMISSIONER OF INCOME TAX (APPEALS) FOR DENOVO CONSIDERATION. HENCE, THE BENCH HAS NOT LOOKED INT O THE MERITS OF THE CASE ON THE EARLIER OCCASION. THEREFO RE, THIS MISCELLANEOUS PETITION FILED BY THE ASSESSEE WILL N OT SURVIVE. 4. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 4 TH MARCH, 2016 SD/- SD/- ( . ) ( . ) (G.PAVAN KUMAR) ( A.MOHAN ALANKAM ONY ) # % / JUDICIAL MEMBER % / ACCOUNTANT MEMBER # /CHENNAI, ( /DATED THE 4 TH MARCH, 2016 4 MP NO.4/MDS/2016 SOMU *+ ,+ /COPY TO: 1. APPELLANT 2. RESPONDENT 3. - () /CIT(A) 4. - /CIT 5. + 1 /DR 6. /GF .