The DCIT, Cochin V. M/s.Apollo Tyres Ltd, Cochin

MA 60/COCH/2017

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 8306 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-10-2018
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 28-09-2018
• Assessment Year: 2012-2013
• Appeal Filed On: 06-09-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A S BINDHU
• Assessee Lawyers: RADHESH BHATT
• Keywords: Depreciation; Additional depreciation; Capital expenditure
• Section: 115JB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI CHANDRA POOJAR I, AM & SHRI GEORGE GEORGE K, JM M A NO. 60 /COCH/201 7 : ASST.YEAR 2012 - 2013 (ARISING OUT OF IT (TP) A NO. 35 /COCH/ 2017 ) M/S.APOLLO TYRES LIMITED 3 RD FLOOR, AREEKAL MANSION NEAR MANORAMA JUNCTION PANAMPILLY NAGAR KOCHI 682 036. PAN : AAACA6990Q VS. THE DY.COMMISSIONER OF INCOME - TAX, CIRCLE 1(1) KOCHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SRI.RADHESH BHATT, CA RESPONDENT BY : SMT.A.S.BINDHU, SR.DR DATE OF HEARING : 28 .09.2018 DATE OF PRONOUNCEMENT : 03 .10 .2018 O R D E R PER GEORGE GEORGE K., JM THIS MISCELLANEOUS APPLICATION AT THE INSTANCE OF THE ASSESSEE IS ARISING OUT OF ITATS ORDER DATED 24.07.2017 IN IT(TP)A NO.35/COCH/2017. THE PRAYERS IN THE MA ARE AS FOLLOWS: - ( I ) ADDITION MADE TOWARDS ADDITIONAL DEPRECIATION IN THE BOOK PROFITS MAY BE DELETED; ( II ) ALTERNATIVELY, THE ADDITION MADE FOR ADDITIONAL DEPRECIATION CLAIMED IN THE BOOK PROFITS MAY BE REMITTED TO THE ASSE SSING OFFICER ON SIMILAR LINES AS OTHER ADDITIONS (REFER OTHER ADDITIONS WERE REMITTED M A NO. 60 / COCH /201 7 . M/S.APOLLO TYRES LIMITED . 2 TO THE A.O. BY THE ITAT VIDE PARAGRAPH 39 TO 44) . 2. BRIEF FACTS OF THE CASE ARE AS FOLLOWS: FOR THE ASSESSMENT YEAR 2012 - 2013, DRAFT ASSESSMENT WAS PROPOSED VIDE ORDER DATED 31.03.2016. IN THE SAID DRAFT ASSESSMENT ORDER, THE ADDITIONAL DEPRECIATION AMOUNTING TO RS.38,65,25,852 CLAIMED BY THE ASSESSEE WAS PROPOSED TO BE ADDED BACK WHILE COMPUTING THE BOOK PROFITS. THE BOOK PROFITS FOR THE PURPOSE OF SECTION 115JB OF THE I.T.ACT WAS PROPOSED BY THE ASSESSING OFFICER AS UNDER: - SR. NO. PARTICULARS AMOUNT (RS.) 1. RETURNED BOOK PROFIT 2,57,50,61,465 2. ADDITIONAL DEPRECIATION CLAIMED 38,65,25,852 3. CAP - EX DISALLOWED 21,67,95,249 4. PROPOSED DIVIDEND 2,52,01,000 5. PROVISION FOR SALARY 34,22,20,000 6. PROVISION FOR SALES OBLIGATION 99,08,80,000 7. PROVISION FOR WEALTH TAXES 1,50,00,000 TOTAL 4,55,16,83,566 3. T HE OBJECTIONS WERE FILED BEFORE DISPUTE RESOLUTION PANEL (DRP). THE DRP UPHELD THE PROPOSAL OF THE A.O. TO ADD BACK ADDITIONAL DEPRECIATION WHILE COMPUTING THE BOOK PROFITS. ON RECEIPT OF THE DRPS DIR ECTIONS, FINAL ASSESSMENT ORDER WAS PASSED VIDE ORDER DATE D 25.01.2017. AS AGAINST THE FINAL ASSESSMENT ORDER, THE ASSESSEE FILED AN APPEAL TO THE ITAT. THE TRIBUNAL IN ITS ORDER DATED 24.07.2017 IN IT (TP) A NO.35/COCH/2017 HELD AS UNDER: - M A NO. 60 / COCH /201 7 . M/S.APOLLO TYRES LIMITED . 3 38 PETITIONER SUBMITTED THAT, DEPRECIATION OF RS.38,65,25,852/ - WHICH WAS DISALLOWED IN THE DRAFT ASSESSMENT ORDER WAS ALLOWED BY DRP AND THE ASSESSING OFFICER HAD GIVEN EFFECT TO SUCH DIRECTIONS CORRECTLY AND THEREFORE, HE HAD NO GRIEVANCE 39..AS FOR ADDITIONAL DEPRECIATION OF RS.38,65,25,852/ - DRP HAD DELETED SUCH ADDITION AND ASSESSING OFFICER HAD PASSED THE FINAL ASSESSMENT ORDER. THEREFORE ASSESSEE CAN HAVE NO GRIEVANCE IN THIS REGARD. 4. THE TRIBUNAL HAD INADVERTENTLY MENTIONED T HAT THE BOOK PROFITS PERTAINING TO ADDITIONAL DEPRECIATION WAS DELETED BY THE DRP. THIS OBSERVATION OF THE ITAT THAT DRP HAS DELETED THE ADDITION WA S NOT CORRECT. IN THE FINAL ASSESSMENT ORDER PASSED ON 25.01.2017, PURSUANT TO THE DIRECTIONS OF THE DRP, TH E ADDITION OF ADDITIONAL DEPRECIATION CLAIMED WAS ADDED BACK WHILE COMPUTING THE BOOK PROFITS. THEREFORE, THERE IS A MISTAKE IN THE ORDER OF THE ITAT DATED 24.07.2017 AND FOR THE LIMITED PURPOSE OF CORRECTING THE ABOVE MENTIONED INADVERTENT ERROR, WE ARE R ECALLING THE IMPUGNED ORDER DATED 24.07.2017. 5. THE ITA T IN ITS ORDER DATED 24.07.2017 , HAD RESTORED TO THE A.O. THE ADDITIONS MADE TO THE BOOK PROFIT , NAMELY, CAPITAL EXPENDITURE DISALLOWED , PROPOSED DIVIDEND, PROVISION FOR SALARY, PROVISION FOR SALES OBLIGATION, PROVISION FOR WEALTH - TAX ETC. THE RELEVANT FINDING OF THE ITAT AS REGARDS ISSUE RESTORED TO THE A.O. ARE AT PARAS 39 TO 44 OF THE IMPUGNED ORDER. AS MENTIONED EARLIER, ITAT HAS COMMITTED A MISTAKE APPARENT ON FACE OF THE RECORD BY HOLDING THAT DRP HAD DELETED THE ADDITIONAL DEPRECIATION FOR THE PURPOSE OF M A NO. 60 / COCH /201 7 . M/S.APOLLO TYRES LIMITED . 4 CALCULATING THE BOOK PROFIT U/S 115JB OF THE I.T.ACT. THEREFORE, LIKE THE OTHER ADDITIONS TO THE BOOK PROFITS U/S 115JB OF THE I.T.ACT , WHICH WERE REMITTED BACK TO THE A.O. FOR FRESH CONSIDERAT ION, WE DEEM IT APPROPRIATE TO RESTORE THE ADDITION OF ADDITIONAL DEPRECIATION ALSO TO BE FILES OF THE A.O. FOR DE NOVO CONSIDERATION. IT IS ORDERED ACCORDINGLY. 6 . IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES, AS INDICATED ABOVE . ORDER PRONOUNCED ON THIS 03 RD DAY OF OCTOBER , 2018 . SD/ - SD/ - ( CHANDRA POOJARI ) ( GEORGE GEORGE K. ) ACCOUNTANT MEMBER JUDICIA L MEMBER COCHIN ; DATED : 03 RD OCTOBER , 2018 . DEVDAS* COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT. REGISTRAR) ITAT, COCHIN 1. THE APPELLANT 2. THE RESPONDENT. 3. THE DRP - 2, BANGALORE . 4. THE PR. CIT I, KOCHI . 5. THE DR, ITAT, COCHIN 6. GUARD FILE.