Nilgiri Oil & Allied Industries, Kolkata V. ACIT, CIRCLE - 28, KOLKATA, Kolkata

MA 78/KOL/2018

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 5787 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-08-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 04-05-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Depreciation
• Section: 32; 27; 263

Judgement Text

1 MA NO.78/KOL/2018 NILGIRI OIL & ALLIED INDUSTRIES, AY- 2011-12 , C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA ( ) BEFORE . , /AND . . , ) [BEFORE SHRI J. SUDHAKAR REDDY, AM & SHRI A. T. VA RKEY, JM] M.A. NO.78/KOL/2018 IN I.T.A. NO. 939/KOL/2016 ASSESSMENT YEAR: 2011-12 NILGIRI OIL & ALLIED INDUSTRIES (PAN: AACFN3936A) VS. ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-28, KOLKATA. APPLICANT RESPONDENT DATE OF HEARING 03.08.2018 DATE OF PRONOUNCEMENT 03.08.2018 FOR THE APPLICANT SHRI S. BANERJEE, AR FOR THE RESPONDENT SHRI SAURABH KUMAR, ADDL. CIT, ORDER PER SHRI A.T.VARKEY, JM THIS MISC. APPLICATION HAS BEEN FILED BY THE ASSESS EE AGAINST THE ORDER PASSED BY THE TRIBUNAL DATED 14.02.2018 IN ITA NO. 939/KOL/2016 F OR AY 2011-12. 2. WE NOTE THAT THE LD. CIT HAS FOUND FAULT WITH THE ORIGINAL ASSESSMENT ORDER ON TWO COUNTS. THE FIRST FAULT ON WHICH THE LD. CIT HAS E XERCISED HIS JURISDICTION U/S. 263 OF THE INCOME-TAX ACT, 1961 HAS BEEN UPHELD BY THE TRIBUNA L WHICH THE LD. AR COULD NOT POINT OUT ANY MISTAKE APPARENT ON THE RECORD AND, THEREFO RE, THE JURISDICTION TO INVOKE REVISIONAL JURISDICTION U/S. 263 OF THE ACT CANNOT BE DISTURBE D. IN RESPECT OF SECOND ASPECT/ISSUE THE LD. AR WAS ABLE TO POINT OUT THAT THE TRIBUNAL HAS RECORDED A FACTUAL FINDING WHICH, ACCORDING TO HIM, IS AN ERROR APPARENT ON THE FACE OF THE RECORD AND WHICH REQUIRE RECTIFICATION AND THAT ERRONEOUS FACTUAL FINDING RE ADS AS FOLLOWS: 2 MA NO.78/KOL/2018 NILGIRI OIL & ALLIED INDUSTRIES, AY- 2011-12 THE ASSESSEE HAS ALSO SHOWN RENTAL INCOME FROM TH E LAND AND BUILDING AT HYDERABAD AND SINCE THE ASSESSEE HAS SHOWN RENTAL INCOME FROM HOU SE PROPERTY THEN IT HAS TO BE ASSESSED U/S. 22 TO 27 OF THE ACT THEN ONLY STANDARD DEDUCTI ON CAN BE GIVEN AND DEPRECIATION U/S. 32 CANNOT BE ALLOWED. 3. THIS FACTUAL FINDING OF THE TRIBUNAL, ACCORDING TO LD. AR, IS ERRONEOUS ON THE BASIS OF THE RECORD BECAUSE THE ASSESSEE HAS NOT SHOWN AN Y RENTAL INCOME FROM HOUSE PROPERTY AND THIS PROPERTY FALLS IN THE BLOCK OF ASSETS, SO IT QUALIFIES FOR DEPRECIATION. THE LD. DR COULD NOT CONTROVERT THIS FACT. IN THE LIGHT OF TH E AFORESAID, WE EXPUNGE THE ABOVE CAPTIONED STATEMENT FROM THE IMPUGNED ORDER OF THIS TRIBUNAL. THUS, THE MISC. APPLICATION OF ASSESSEE IS PARTLY ALLOWED TO THE AFORESAID EXTENT. OTHER THAN THAT THE IMPUGNED ORDER OF THIS TRIBUNAL IN UPHOLDING THE JURISDICTION TO INVO KE REVISIONAL JURISDICTION BY THE LD. CIT IS NOT DISTURBED AND THE AO IS AT LIBERTY TO GIVE E FFECT TO THE ORDER OF THE LD. CIT AFTER TAKING NOTE OF THE AFORESAID OBSERVATION AND THE FA CTUAL FINDING EXPUNGED BY US. 3. IN THE RESULT, MISC. APPLICATION OF ASSESSEE IS PARTLY ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT. SD/- SD/ (J. SUDHAKAR REDDY) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 3 RD AUGUST, 2018 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT NILGIRI OIL & ALLIED INDUSTRIES, UNI T NO. 4, NEW ALIPORE MARKET COMPLEX, TOLLYGUNGE CIRCULAR ROAD, KOLKATA-7 00 053. 2 RESPONDENT ACIT, CIRCLE-28, KOLKATA. 3. 4. PR. CIT-10, KOLKATA. CIT KOLKATA. 5. DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, SR. PVT. SECRETARY