M/s Jagson Constructions Limited, BATALA V. The Assistant Commissioner of Income Tax, Circle- I, Amritsar.

MA 51/ASR/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6523 (ITAT-AMRITSAR)
• Duration Of Justice: 6 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 02-02-2018
• Assessment Year: 2010-2011
• Appeal Filed On: 17-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BALWINDER KAUR LD
• Assessee Lawyers: TARUN BANSAL LD
• Keywords: Business income; Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER AND SH. N.K.CHOUDHRY, JUDICIAL MEMBER M. A. NO. 51/(ASR)/2017 (ARISING OUT OF ITA NO. 167/ASR/2016 & C.O. 16/ASR/2016) ASSESSMENT YEAR: 2010-1 1 M/S. JAGSON CONSTRUCTIONS LIMITED, BATALA [PAN : AABCJ 2040D] VS. ASST. C.I.T., CIRCLE-I, AMRITSAR (APPELLANT) (RESPONDENT) APPELLANT BY: SH. TARUN BANSAL (LD. A DV.) RESPONDENT BY: SMT. BALWINDER KAUR (LD. D.R. ) DATE OF HEARING: 02.02.2018 DATE OF PRONOUNCEMENT: 01.05.2018 ORDER PER N.K.CHOUDHRY, JM: THE ASSESSEE HAS PREFERRED THE INSTANT MISCELLANEOUS APPLICATION FOR RECALLING THE ORDER DATED 28.07.2017 PASSED BY THE ITAT BENCH AT AMRITSAR IN ITA NO. 167/ASR/2016 AND CROSS OBJECTION NO. 16/ASR/2016. 2. AT THE OUTSET, THE LD. AR SUBMITTED THAT WHILE DISPO SING THE ASSESSEES CROSS OBJECTION, THE HON'BLE TRIBUNAL HAS NOT ADJUDICATED TWO ISSUES. THE FIRST ISSUE RAISED BY THE LD. AR IS THAT THE HON'BLE TRIBUNAL WHILE ADJUDICATING THE NET PROFIT RATE FAIL ED TO DIRECT A FURTHER ALLOWANCE OF DEPRECIATION. IT WAS FURTHER SUBMI TTED BY THE LD. A R THAT THERE ARE SEVERAL DECISIONS BY THE TRI BUNAL, INCLUDING AMRITSAR BENCH, WHERE THE CLAIM OF DEPRECIATIO N IS M.A. NO.51/ASR/2017 (A.Y.2010-11) JAGSON CONSTRUCTION LTD. V. ASST. CIT 2 ADMISSIBLE AFTER THE RATE OF PROFIT AT WHICH THE INCOM E IS TO BE COMPUTED. SECOND ISSUE RELATES TO NON-ADJUDICATION OF GROUND NO. 3 , WHICH READS AS UNDER: 3. THAT THE LD. CIT(A) HAS WRONGLY TREATED THE FOLLO WING INCOMES AS INCOME FROM OTHER SOURCES, WHICH ARE PAR T OF BUSINESS INCOME APPEARING IN SCHEDULE-8 OF PROFIT & LOSS A/C AND ALSO WRONGLY TREATED AS SCHEDULE-10 OF PROF IT & LOSS ACCOUNT:- (A) BANK INTEREST =RS.6,39,875/- (B) HIRE CHARGES =RS.2,62,835/- (C) OTHER INTEREST =RS. 92,671/- 3. ON THE CONTRARY, THE LD. DR RELIED UPON THE ORDER P ASSED BY THE ITAT BENCH AT AMRITSAR IN THE AFORESAID CASES AND SUBMITTED THAT THE ITAT HAS ALREADY CONSIDERED THE PLEA S OF THE ASSESSEE WHILE ADJUDICATING THE APPEAL AS WELL AS CROSS OBJECTION, HENCE THE ORDER UNDER CHALLENGE DOES NOT REQ UIRES TO BE RECALLED. 4. WE HAVE GONE THROUGH WITH THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS SUBMISSIONS OF THE PARTIES. 4.1 AS REGARDS THE CLAIM OF DEPRECIATION, THE SAME DOES N OT ARISE FROM THE GROUNDS RAISED BY THE REVENUE IN APPEAL NOR IN FACT, EVEN IN THE GROUNDS RAISED BY THE ASSESSEE PER ITS CR OSS OBJECTION . THE SAME DOES NOT THEREFORE ARISE. THE NET PROFIT RATE WAS CONSIDERED BY THE TRIBUNAL ON THE SAME BASIS AS IT WAS BY THE ASSESSING OFFICER AS WELL AS THE LD. CIT(A). A GROUND QUA DEPRECIATION, I.E., SEPARATELY, WAS NOT EVEN RAISED BE FORE THE LD. CIT(A). THE ASSESEES CLAIM IS THUS WITHOUT BASIS ON FACTS . M.A. NO.51/ASR/2017 (A.Y.2010-11) JAGSON CONSTRUCTION LTD. V. ASST. CIT 3 4.2 AS REGARDS THE NON-ADJUDICATION OF GROUND 3 OF T HE ASSESEES CROSS OBJECTION, THE TRIBUNAL AT PAGE NO. 11 ABO VE PARA NO. 8 OF THE ORDER, OBSERVED AS UNDER: NOW COMING TO THE CROSS OBJECTION RAISED BY THE AS SESSEE, MORE OR LESS THE ASSESSEE ALSO CHALLENGED THE NET PROFIT RATE AND HAS NOT EMPHASIZED SPECIFICALLY ON OTHER GROUNDS. HENCE, IN VIEW OF THE OBSERVATIONS MADE ABOVE IN APPEAL NO. 167/ASR/2016, THE C.O. FILED BY THE ASSESSEE STANDS DISMISSED. FROM THE ORDER, IT CLEARLY REFLECTS THAT THE ASSESSEE HAS RAISED/CHALLENGED THE GROUND QUA NET PROFIT RATE ONLY AND RESTS OF GROUNDS HAVE NOT BEEN EMPHASIZED SPECIFICALLY, HOWEVE R, BY WAY OF THE INSTANT MISCELLANEOUS APPLICATION, THE ASSESSEE HAS RAISED THE ISSUES, WHICH ACCORDING TO OUR VIEW DOES NOT ARI SE, HOWEVER CONSIDERING THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE AND IN ORDER TO AVOID THE CONTROVERSY AND FOR THE JUST DECISION OF CASE, WE FEEL IT APPROPRIATE TO RECALL THE O RDER UNDER CHALLENGE TO THE EXTENT OF DECIDING THE GROUND NO. 3 ONLY, RAISED IN THE CROSS OBJECTION BY THE ASSESSEE. REGISTRY IS DIRECTED TO FIX THE APPEAL ON 08-06-2018 WITH DUE NOTICE OF HEARING TO THE PARTIES. ORDER PRONOUNCED IN THE OPEN COURT ON 01.05.2018. SD/- SD/- (SANJAY ARORA) (N. K. CHOUDHRY) ACCOUNTANT MEMBER J UDICIAL MEMBER DATED: 01.05.2018 /GP/SR. PS. COPY OF THE ORDER FORWARDED TO: (1) ASSESSEE (2) THE ASST. C.I.T. CIRCLE-I, AMRITSAR (3 THE CIT (A) (4) THE CIT CONCERNED. (5) THE SR DR, I.T.A.T., AMRITSAR TRUE COPY BY ORDER