PINSTORM TECHNOLOGIES . LTD, V. ITO 9(2)(4),

MA 428/MUM/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1906 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-04-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: L
• Assessment Year: 2006-2007
• Appeal Filed On: 28-11-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: M L PERUMAL
• Keywords: Depreciation; Capital expenditure

Judgement Text

L IN THE INCOME TAX APPELLATE TRIBUNAL L BENCH, MUMBAI . . , .. , BEFORE SHRI I.P. BANSAL, J.M. AND SHRI P.M. JAGTAP, AM 428/ MUM/2013 ARISING OUT OF ITA NO. 4332/MUM/2009 ( / ASSESSMENT YEAR : 2006-07) M/S PINSTORM TECHNOLOGIES PVT. LTD., SWATI BUILDING, NORTH AVENUE, SANTACRUZ (W), MUMBAI -400 054. / VS. INCOME T AX OFFICER WARD 9(2)(4), MUMBAI. . / PAN : AADCP4854B ( ' / APPELLANT ) .. ( ()' / RESPONDENT ) ' * / APPLICANT BY : SHRI HARIDAS BHAT ()' * / RESPONDENT BY : SHRI M.L. PERUMAL * / / DATE OF HEARING : 4-4-2014 * / / DATE OF PRONOUNCEMENT : 4-4-2014 / O R D E R PER P.M. JAGTAP, A.M . : BY THIS MISC. APPLICATION, THE ASSESSEE IS SEEKING RECTIFICATION OF THE MISTAKES ALLEGED TO HAVE CREPT IN THE ORDER OF THE TRIBUNAL DATED 18-7-2012 PASSED IN ITA NO. 4332/MUM/2009 IN NOT ADJUDICATING ON THE ISSUE RAISED IN GROUND NO. 2 WHICH READS AS UNDER:- THE LD. CIT(A) ERRED IN NOT ADJUDICATING THE 2 ND GROUND FILED BEFORE HER REGARDING THE DISALLOWANCE MADE BY THE ASSESSING OF FICER OF RS. 12,00,000/- UNDER SECTION 40(A)(I) OF THE ACT WITH REGARD TO DEPRECIATION ON CAPITAL EXPENDITURE OF RS. 40,00,000/- ON ACCOUN T OF SOFTWARE DEVELOPMENT WHICH IS TOWARDS RESEARCH & DEVELOPMENT COST FOR DEVELOPING OUR SOFTWARE PRODUCTS. MA 428/MUM/2013 2 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL ON RECORD INCLUDING THE NOTINGS M ADE BY US IN THE LOG BOOK. AS FOUND NOTED IN THE LOG BOOK, IT WAS SUBMITTED BY THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE AT THE TIME OF HEARI NG OF THE APPEAL OF THE ASSESSEE THAT THE ISSUE RAISED IN GROUND NO. 2 RELA TES TO THE ALTERNATIVE CLAIM OF THE ASSESSEE WHICH HAD NOT BEEN DECIDED BY THE L D. CIT(A). IT WAS SUBMITTED THAT IF AT ALL GROUND NO. 1 RAISED IN THE APPEAL OF THE ASSESSEE IS DECIDED AGAINST THE ASSESSEE, THE ISSUE RAISED IN G ROUND NO. 2 RELATING TO THE ALTERNATIVE CLAIM OF THE ASSESSEE MAY BE SENT BACK TO THE LD. CIT(A) FOR DECIDING THE SAME ON MERIT. SINCE THE ISSUE INVOLVE D IN GROUND NO. 1 WAS DECIDED IN FAVOUR OF THE ASSESSEE, THE ISSUE INVOLV ED IN GROUND NO. 2 RELATING TO THE ALTERNATIVE CLAIM OF HE ASSESSEE BECAME INFR UCTUOUS AS PER THE SUBMISSION SPECIFICALLY MADE BY THE AUTHORIZED REPR ESENTATIVE OF THE ASSESSEE AND THE SAME THEREFORE WAS NOT SEPARATELY DECIDED B Y THE TRIBUNAL VIDE ITS ORDER DATED 18-7-2012. IN OUR OPINION, THERE IS THU S NO MISTAKE IN THE ORDER OF THE TRIBUNAL AS ALLEGED BY THE ASSESSEE IN THE P RESENT MISC. APPLICATION. THE ONLY MISTAKE THAT CAN BE SAID TO HAVE OCCURRED IS THAT THE FATE OF GROUND NO. 2 WAS NOT SEPARATELY INDICATED BY THE TRIBUNAL IN ITS ORDER AND WE HEREBY RECTIFY THE SAME BY INCLUDING THE FOLLOWING PARA IN THE ORDER OF THE TRIBUNAL AS PARA NO. 7-A:- PARA NO. 7-A: AS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE, THE ISSUE RAISED IN GROUND NO. 2 OF THE ASSESSEES APPEAL RELATES TO ITS ALTERNATIVE CLAIM WHICH HAS NOT BEEN DECIDED BY THE LD. CIT(A) BY HIS IMPUGNED ORDER. HE HAS URGED THAT IF AT ALL THE ISSUE INVOLVED IN GROUND NO. 1 OF THE ASSESSEES AP PEAL IS DECIDED AGAINST THE ASSESSEE, THE ISSUE INVOLVED IN GROUND NO. 2 MAY BE SENT BACK TO THE LD. CIT(A) FOR DECIDING THE SAME O N MERIT. SINCE THE ISSUE INVOLVED IN GROUND NO. 1 HAS BEEN DECIDED BY US IN FAVOUR OF THE ASSESSEE, THE ISSUE INVOLVED IN GROUN D NO. 2 RELATING TO THE ALTERNATIVE CLAIM OF THE ASSESSEE HAS BECOME INFRUCTUOUS CALLING FOR NO DECISION FROM US. MA 428/MUM/2013 3 3. IN THE RESULT, THE MISC. APPLICATION FIL ED BY THE ASSESSEE IS PARTLY ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 04-04-2014. . * 5 6 0490492014 * SD/- SD/- (I.P. BANSAL) ( P.M. JAGTAP ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; 6 DATED 04-04-2014 .../ RK , SR. PS ' #%& '& / COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. ()' / THE RESPONDENT. 3. A () / THE CIT (A) CONCERNED, MUMBAI 4. A / CIT, CONCERNED,, MUMBAI 5. (E , / E , / DR, ITAT, MUMBAI L BENCH 6. / GUARD FILE. / BY ORDER, ) ( //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI