ACIT 1(3), MUMBAI v. RAMAN & WEIL P. LTD, MUMBAI

ITA 3345/MUM/2009 | 2004-2005
Pronouncement Date: 18-02-2010 | Result: Partly Allowed

Appeal Details

RSA Number 334519914 RSA 2009
Bench Mumbai
Appeal Number ITA 3345/MUM/2009
Duration Of Justice 8 month(s) 29 day(s)
Appellant ACIT 1(3), MUMBAI
Respondent RAMAN & WEIL P. LTD, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 18-02-2010
Appeal Filed By Department
Order Result Partly Allowed
Bench Allotted D
Tribunal Order Date 18-02-2010
Assessment Year 2004-2005
Appeal Filed On 20-05-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D MUMBAI BEFORE SHRI A.L. GEHLOT A.M. AND SMT. P. MADHAVI DEVI J.M. ITA NO. 3345/M/2009 ASSESSMENT YEAR: 2004-05 ASST. COMMISSIONER OF INCOME-TAX APPELLANT 1(3) ROOM NO. 540/564 5 TH FLOOR AAYAKAR BHAVAN M.K. ROAD NEW MARINE LINES MUMBAI 400 020. VS. M/S RAMAN & WEIL P. LTD. RESPONDENT 15 CHATEU MARINE B ROAD CHURCHGATE MUMBAI 400 020. APPELLANT BY : MR. DURGESH SUMROTT RESPONDENT BY : MR. NISHANT THAKKAR ORDER PER A.L. GEHLOT A.M.: THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAIN ST THE ORDER OF CIT(A)-XXI MUMBAI FOR THE ASSESSMENT YEAR 2004-05 WHEREIN THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LD. CIT(A) ERRED IN DIRECTING THE AO TO ALLOW D EDUCTION U/S 80IB CLAIMED BY THE ASSESSEE THOUGH THE STATUTORY REQUIREMENT OF FILING OF FORM NO. 10CCB ALONG WITH RETURN OF IN COME WAS NOT COMPLIED. 2. ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LD. CIT(A) ERRED IN DIRECTING THE AO TO ALLOW THE F ULL YEAR DEPRECIATION IN RESPECT OF THE MOTOR CAR WITHOUT P ROPER APPRECIATION OF THE FACTS. 2. THE AO DISALLOWED THE ASSESSEES CLAIM U/S 80-I B ON THE GROUND THAT THE ASSESSEE DID NOT FILE THE REPORT IN FORM NO. 10CCB ALONG WITH THE RETURN OF INCOME. HOWEVER THE SAID FORM WAS FILED ITA NO. 3345/M/09 M/S RAMAN & WEIL (P) LTD.. 2 SEPARATELY DURING THE ASSESSMENT PROCEEDINGS VIDE L ETTER DATED 23 RD MARCH 2006. THE AO WAS OF THE VIEW THAT SUBMISSION OF AUDIT REPORT ALONG WITH RETURN OF INCOME IS A MANDATORY CONDITIO N SINCE THE ASSESSEE FAILS TO DO SO HE DISALLOWED THE ENTIRE D EDUCTION U/S 80IB OF RS. 89 66 571/-. THE CIT(A) FOLLOWED THE DECISION O F ITAT B BENCH MUMBAI IN THE CASE OF ITO VS. M/S NICE PACK INDUSTR IES P. LD. IN ITA NO. 2592/MUM/2007 DATED 31.12.2008 WHICH HAS BEEN CITED BY THE LEARNED AR BEFORE THE CIT(A) AND ACCEPTED ASSESSEE S CLAIM. THE CIT(A) REPRODUCED THE FINDING OF ITAT IN PARA 3.3 O F HIS ORDER WHICH READS AS UNDER:- 3.3 FOR BETTER APPRECIATION OF THE JUDGEMENT PARA 6 OF THE SAID ORDER IS REPRODUCED HEREUNDER:- THE LAST GROUND PERTAINS TO DEDUCTION U/S 80IB AMO UNTING TO RS. 3 59 240/-. THE CLAIM OF THE ASSESSEE WAS DISALLOWED BY THE AO ON THE GROUND OF NON FILING OF FORM 10CCB ALONG WITH THE RETURN OF INCOME. WHEN ON APPE AL THE LEARNED CIT(A) RELYING ON A PLETHORA OF JUDGEME NTS HELD THAT THE ASSESSEE IS ENTITLED FOR DEDUCTION EVEN IF THE AUDITORS REPORT IN FORM 10CCB IS FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. UNDISPUTEDLY THE ASSESSEE HAS FILED THE AUDITORS REPORT IN THE COURSE OF ASSESSM ENT PROCEEDINGS. THUS THE CASE OF THE ASSESSEE IS FURT HER SUPPORTED BY THE JUDGMENT OF HONBLE MADHYA PRADESH HIGH COURT INDORE BENCH IN THE CASE OF CIT VS. PAN AMA CHEMICALS WORKS 292 ITR 147 (MP) OTHER THAN THE JUDGMENT RELIED UPON BY THE LEARNED CIT(A) IN HIS O RDER. RESPECTFULLY FOLLOWING THE SAME WE REJECT THIS GROU ND ALSO. 3. AT THE OUTSET THE LEARNED AR SUBMITTED THAT ON IDENTICAL SET OF FACTS THE ITAT IN ASSESSEES OWN CASE IN AY 2003-04 VIDE ITA NO. 1686/MUM/07 ORDER DATED 29 TH MAY 2009 ALLOWED THE CLAIM OF THE ASSESSEE. ON THE OTHER HAND THE LEARNED DR RELIED UPON THE ORDER OF THE AO. 4. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF THE PARTIES AND PERUSED THE RECORD. WE FIND THAT ON IDENTICAL SET O F FACTS THE ITAT IN ASSESSEES OWN IN CASE IN AY 2003-04 CITED SUPRA D ECIDED THE MATTER BY HOLDING AS UNDER:- ITA NO. 3345/M/09 M/S RAMAN & WEIL (P) LTD.. 3 5..WE THEREFORE RESPECTFULLY FOLLOWING TH E AFORESAID JUDGMENTS RELIED UPON BY THE LD. AR OF TH E ASSESSEE SET ASIDE THE ORDER PASSED BY CIT(A) TO THE FILE OF THE AO AND DIRECT THE AO TO ACCEPT THE REPORT IN FORM NO. 10CC B DATED 19.12.2005 FOR AY 2003-04 FILED BY THE ASSESSEE ON 27.12.2005 AND DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW. IT IS ALSO PERTINENT TO MENTION THAT THE LD. AR OF THE ASSESSE E HAS SUBMITTED THAT THE CLAIM OF THE ASSESSEE U/S 80IB W AS ALLOWED BY THE DEPARTMENT PRIOR TO AY 2003-04 AND ALSO SUBS EQUENT YEARS. WE THEREFORE DIRECT THE AO KEEPING THESE MAT ERIAL ASPECTS IN MIND WHILE DECIDING THE ISSUE. THUS THE GROUND O F APPEAL RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL P URPOSES. 4.1 SINCE THE ISSUE UNDER CONSIDERATION IS IDENTICA L TO THAT OF AY 2003-04 WE RESPECTFULLY FOLLOW THE DECISION OF IT AT IN THAT YEAR AND IN THE LIGHT OF THAT WE ALSO REMIT THE MATTER BACK TO THE FILE OF THE AO WITH IDENTICAL DIRECTIONS. THUS THIS GROUND OF APP EAL IS ALLOWED FOR STATISTICAL PURPOSES. 5. GROUND NO. 2 IS IN RESPECT OF DISALLOWANCE OF DE PRECIATION ON MOTOR CAR. 6. DURING THE ASSESSMENT PROCEEDINGS THE AO NOTICE D THAT THE ASSESSEE HAS PURCHASED A NEW MOTOR CAR ON 30.09.200 3. THE AO FURTHER NOTICED THAT REGISTRATION CERTIFICATE WAS I SSUED ON 06 TH OCTOBER 2003 AND TAXES WERE ALSO PAID ON 06.10.200 3. THE AO WAS OF THE VIEW THAT THE ASSESSEE HAS PUT THE SAID CAR IN USE DURING SECOND HALF OF THE YEAR THEREFORE ELIGIBLE FOR ONLY 50% OF DEPRECIATION. THE AO ACCORDINGLY DISALLOWED RS. 1 37 760/- BEING 50 % OF DEPRECIATION OF RS. 2 75 520/-. THE CIT(A) DELETED THE ADDITION OBSERVING THAT THE USER OF THE VEHICLE CANNOT BE DOUBTED ON THE VERY S AME DATE. THE CAR IS NOT AN ASSET WHICH REQUIRES FURTHER DEPRECIATION FOR ITS USE. 7. THE LEARNED DR RELIED UPON THE ORDER OF THE AO A ND SUBMITTED THAT THE ASSESSEE HAS FAILED TO PROVE THAT THE CAR WAS USED ON OR BEFORE 30 TH SEPTEMBER 2003 AS THE REGISTRATION WAS AFTER 30 TH SEPTEMBER 2003. THE CONTENTION OF THE LEARNED DR IS THAT THERE WAS ITA NO. 3345/M/09 M/S RAMAN & WEIL (P) LTD.. 4 NO USE OF THE CAR FOR THE PURPOSE OF BUSINESS THER EFORE THE AO HAS RIGHTLY DISALLOWED THE CLAIM OF THE ASSESSEE. 8. THE LEARNED AR BESIDES RELYING UPON THE ORDER OF CIT(A) SUBMITTED THAT THE ISSUE IS ALSO COVERED BY THE FOL LOWING JUDGMENTS: 1. CIT VS. GEO TECH CONSTRUCTION CORPORATION 244 I TR 452 (KER.) 2. AJAY GOYAL VS. ITO 99 TTJ (JD) 164. 9. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF THE PARTIES AND PERUSED THE RECORD. WE FIND THAT ON IDENTICAL SET O F FACTS THE ITAT IN THE CASE OF AJAY GOYAL VS. ITO 99 TTJ (JD.) 164 H ELD THAT THE CAR PURCHASED BY THE ASSESSEE ON 31 ST MARCH 2001 BUT INSURED IN THE NAME OF ASSESSEE ON 29 TH MARCH 2001 HAVING BEEN TAKEN TO BUSINESS PREMISES THEREFORE USER IS ESTABLISHED AND DEPREC IATION IS ALLOWABLE. IN THE LIGHT OF ABOVE DECISION WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A). THUS THIS GROUND OF APPEAL IS DISMISSED . 10. IN THE RESULT THE APPEAL OF THE REVENUE IS PAR TLY ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED ON THIS 18 TH DAY OF FEBRUARY 2010 SD/- SD/- (P. MADHAVI DEVI) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTAN T MEMBER DATED: 18 TH FEBRUARY 2010 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) CONCERNED. 4) THE CIT CONCERNED. 5) THE DEPARTMENTAL REPRESENTATIVE D BENCH I.T .A.T. MUMBAI. BY ORDER //TRUE COPY// ASST. REGISTRAR I.T.A.T. MUMBAI. KV ITA NO. 3345/M/09 M/S RAMAN & WEIL (P) LTD.. 5 S.NO. DESCRIPTION DATE INTLS 1. DRAFT DICTATED ON 09.02.10 SR.P.S./P.S 2. DRAFT PLACED BEFORE AUTHOR 15.02.10 SR.P.S/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR.P.S./PS SR.P.S./P.S 6. KEPT FOR PRONOUNCEMENT ON SR. P.S./P.S. 7. FILE SENT TO THE BENCH CLERK SR.P.S./P.S 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER