ACIT, New Delhi V. M/s YFC Projects Pvt. Ltd., New Delhi

MA 56/DEL/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8686 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-07-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: I
• Assessment Year: 2006-2007
• Appeal Filed On: 29-03-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: BANITA DEVI
• Keywords: Depreciation; Rectification of order; Additional depreciation
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH : FRIDAY NEW DELHI) BEFORE SHRI U.B.S. BEDI, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER M.A. NO.56/DEL./2012 (IN ITA NOS.3527/DEL./2011) (ASSESSMENT YEAR : 2006-07) ACIT, CIR.18(1), VS. YFC PROJECTS (P) LTD., NEW DELHI. SHIVALIK, MALVIYA NAGAR, NEW DELHI. (PAN/GIR NO.AAACF1998B) (APPLICANT) (RESPONDENT) ASSESSEE BY : SHRI HIREN MEHTA, CA REVENUE BY : BANITA DEVI, SR.DR ORDER PER U.B.S. BEDI JM BY MEANS OF THE PRESENT APPLICATION, DEPARTMENT SEE KS TO GET RECTIFIED ORDER OF THE TRIBUNAL DATED 14.9.2011 IN I.T.A. NO.3527/DEL./11 FOR ASSESSMENT YEAR 2006-07 TO THE EFFECT THAT DISALLOWANCE OF CLAIM OF ADDITIONAL DEP RECIATION OF RS.39,74,451/- WAS DECIDED IN FAVOUR OF THE ASSESSEE BY FOLLOWING EARLIER YEAR S ORDER PASSED BY ITAT IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2004-05 IN I.T.A. NO.4 672/DEL./2007 DATED 15.01.2010, WHEREAS NOW THAT ORDER OF THE TRIBUNAL, ON THE BASI S OF WHICH MATTER WAS DECIDED HAS BEEN DISTURBED BY THE HONBLE JURISDICTIONAL HIGH C OURT VIDE ORDER DATED 24.10.2011 IN I.T.A. NO.508/2012 DATED 24.10.2011 AND MATTER HAS BEEN RESTORED BACK ON THE FILE OF THE TRIBUNAL TO RE-EXAMINE THE MATTER ON MERITS AFTER D ECIDING THE QUESTION WHETHER THE CAPITAL RMC WAS SOLD TO THIRD PARTIES OR WAS CAPTIV ELY USED/UTILIZED. SINCE THE DECISION OF THE JURISDICTIONAL HIGH COURT GIVES CAUSE FOR RE CTIFICATION IT WAS THUS PLEADED FOR RECALLING THE ORDER OF THE TRIBUNAL FOR RE-CONSIDER ATION OF THE ISSUE IN THE LIGHT OF THE HONBLE HIGH COURT DIRECTION IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2004-05. 2. LD. COUNSEL FOR THE ASSESSEE COULD NOT CONTROVER T THIS FACTUAL ASPECT AND RATHER CONCEDED THAT THE ISSUE HAS BEEN RESTORED BACK TO THE TRIBUNAL, THEREFORE, ORDER MAY BE RECALLED. MA NO.56/DEL./2012 (IN I.T.A. NO.3527/DEL./2011) (A.Y. : 2006-07) 2 3. AFTER HEARING BOTH THE SIDES AND CONSIDERING THE MATERIAL ON RECORD AS WELL AS HONBLE DELHI HIGH COURT DECISION PASSED IN THE ASS ESSEES OWN CASE FOR ASSESSMENT YEAR 2004-05 DATED 24.10.2011, WE FIND THAT ISSUE WAS DE CIDED BY THE TRIBUNAL IN VIEW OF DECISION OF THE IN ASSESSEES OWN CASE FOR ASSESSME NT YEAR 2004-05, IN WHICH HONBLE HIGH COURT REMITTED THE MATTER BACK TO THE TRIBUNAL AS PER PARAS 10 & 11 OF ITS ORDER WHICH IS REPRODUCED AS UNDER: 10. LD.COUNSEL FOR THE PARTIES ACCEPT THAT IN CAS E RMC WAS USED FOR CONSTRUCTION ACTIVITIES WHICH WERE UNDERTAKEN BY TH E RESPONDENT-ASSESSEE, THE CLAIM FOR ADDITIONAL DEPRECIATION CANNOT BE ALLOWED BUT IN CASE RMCV WAS SOLD TO THIRD PARTIES AS A COMMODITY, THEN THE RESPONDEN T ASSESSEE IS ENTITLED TO ADDITIONAL DEPRECIATION UNDER SECTION 32(1)(IIA) OF THE ACT. LD.COUNSEL FOR THE PARTIES ALSO AGREE THAT THE SAID ASPECT HAS NOT BEE N EXAMINED BY THE TRIBUNAL IN THEIR ORDER DATED 15 TH JANUARY, 2010. 11. IN THE LIGHT OF THE AFORESAID DISCUSSION THAT Q UESTION IS ANSWERED IN FAVOUR OF THE REVENUE TO THE EXTENT THAT THE TRIBUNAL HAS NOT DEALT WITH AND EXAMINED THE QUESTION WHETHER OR NOT THE RMC WAS SOLD BY THE ASS ESSEE TO THIRD PARTY BUYERS O4R WAS USED BY THE ASSESSEE THEMSELVES AT THEIR CO NSTRUCTION SITES. WITHOUT DECIDING THIS PRIMARY ISSUE/ASPECT THE TRIBUNAL COU LD NOT HAVE DECIDED THE CONTROVERSY AND THE ISSUE RAISED. ACCORDINGLY, THE IMPUGNED FINDINGS IN PARA.7 ARE SET ASIDE WITH THE DIRECTION TO THE TRIBUNAL TO RE-EXAMINE THE MATTER ON MERITS AFTER DECIDING THE QUESTION WHETHER THE RMC WAS SOL D TO THIRD PARTIES, OR WAS CAPTIVELY USED/UTILIZED. THE RESPONDENT ASSESSEE W ILL BE ENTITLED TO ADDITIONAL DEPRECIATION ON THE MACHINERY/EQUIPMENT USED FOR TH E SAID ACTIVITY/PURPOSE ONLY IF THE RMC WAS SOLD TO THIRD PARTIES. IN CASE, RMC WAS PARTLY SOLD TO PARTLY SELF UTILIZED AND THE EFFECT THEREOF ON THE QUESTION OF ADDITIONAL DEPRECIATION WILL BE ALSO EXAMINED BY THE TRIBUNAL. 4. AND EVEN LATER DECISION BY THE JURISDICTIONAL HI GH COURT OR SUPERIOR COURT GIVES CAUSE FOR RECTIFICATION AS HELD BY HONBLE P&H HIGH COURT (FB) IN CIT VS. SMT. ARUNA LUTHRA (2001) 252 I.T.R. 76 IN RELATION TO SECTION 154 OF THE I.T. ACT, 1961 AND RELEVANT PORTION READS AS UNDER: IN VIEW OF THE ABOVE, WE HOLD THAT THE POWER UNDER SECTION 154 CAN BE INVOKED EVEN WHEN AN ISSUE IS DECIDED BY THE JURISDICTIONAL HIGH COURT OR A SUPERIOR COURT AFTER HE ORDER HAS BEEN PASSED. MA NO.56/DEL./2012 (IN I.T.A. NO.3527/DEL./2011) (A.Y. : 2006-07) 3 5. SO, IN VIEW OF THE ABOVE NOTED RATIO OF HONBLE P&H HIGH COURT AND HONBLE HIGH COURT DECISION IN ASSESSEES OWN CASE FOR ASS ESSMENT YEAR 2004-05, WE RECALL OUR ORDER DATED 14.9.2011 AND DIRECT THE REGISTRY TO FI X THE CASE FOR HEARING IN DUE COURSE. 6. AS A RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE DEPARTMENT GETS ACCEPTED. ORDER PRONOUNCED IN OPEN COURT ON 20.07.2012. SD/- SD/- (T.S. KAPOOR) (U.B.S.BEDI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: JULY 20, 2012. *SKB* COPY FORWARDED TO:- 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A)-XXI, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DELHI. AR/ITAT