M/s Subros Limited,, New Delhi v. Addll. CIT, New Delhi

ITA 4711/DEL/2009 | 2006-2007
Pronouncement Date: 19-02-2010 | Result: Partly Allowed

Appeal Details

RSA Number 471120114 RSA 2009
Assessee PAN AABCS3910P
Bench Delhi
Appeal Number ITA 4711/DEL/2009
Duration Of Justice 2 month(s) 5 day(s)
Appellant M/s Subros Limited,, New Delhi
Respondent Addll. CIT, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 19-02-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted G
Tribunal Order Date 19-02-2010
Assessment Year 2006-2007
Appeal Filed On 14-12-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : G: NEW DELHI BEFORE SHRI G.E. VEERABHADRAPPA VICE PRESIDENT AND SHRI I.P. BANSAL JUDICIAL MEMBER ITA NO.4711/DEL/2009 ASSESSMENT YEAR : 2006-07 M/S SUBROS LIMITED LGF WORLD TRADE CENTRE BARAKHAMBA LANE NEW DELHI. 110 001. PAN : AABCS3910P VS. ADDL. CIT RANGE-9 CR BUILDING NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAJEEV SABHARWAL CA REVENUE BY : SHRI KISHORE B. SR. DR ORDER PER I.P. BANSAL JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS DI RECTED AGAINST THE ORDER CIT (A) DATED 4 TH AUGUST 2009 FOR ASSESSMENT YEAR 2006-07. GROUNDS OF APPEAL READ AS UNDER:- 1. THAT THE ORDER PASSED BY THE COMMISSIONER OF INC OME TAX (APPEALS) IS WRONG BAD IN LAW AND AGAINST THE FACT S AND CIRCUMSTANCES OF THE CASE. 2. THAT THE LD. COMMISSIONER OF INCOME TAX (APPE ALS) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING REDUCTION IN CLAI M OF DEPRECIATION ON JIGS AND FIXTURES (MOULDS) FROM 30% TO 15% AN D DISALLOWING DEPRECIATION AMOUNTING TO RS. 37 23 639/- ARBITRARI LY WITHOUT ANY JUSTIFICATION. 2.1 IT IS CONTENDED THAT THE COMMISSIONER OF INCOM E TAX (APPEALS)S ORDER VIOLATES THE ORDERS PASSED BY TH E HONBLE ITAT DELHI BENCH WHICH HAS ACCEPTED THE APPELLANTS CLA IM FOR ALL THE YEARS SINCE 1994-95 INCLUDING THE ORDER OF THE LAST YEAR PASSED BY THE ITAT AGAINST THE ORDER OF CIT(A) XI DELHI SPE CIALLY WHEN THERE ITA NO.4711/DEL/2009 2 IS NO ORDER OF THE HIGH COURT IN FAVOUR OF THE DEPA RTMENT ON THIS ISSUE. 2.2 IT IS FURTHER CONTENDED THAT HER REMARKS AT T HE END OF THE ORDER THAT IT IS RESUBMITTED AND DEPARTMENTS ST AND IN REITERATED ARE SIMILAR TO THE ONES WHICH WERE RECORDED BY HER AT THE MIDDLE OF PAGE 5 OF HER ORDER FOR THE ASSESSMENT YEAR 2005-06 WHICH WAS NOT UPHELD BY THE ITAT BENCH G AS THE ASSESSEES APPEAL HAS BEEN ACCEPTED AFTER THE FULL DISCUSSIONS OF THE ORD ER OF THE CIT(A) FOR THE ASSESSMENT YEAR 2005-06. 2.3 IT IS A MATER OF COMMON KNOWLEDGE THAT THE LO WER AUTHORITIES OF INCOME TAX ARE BOUND BY THE ORDER OF THE HONBL E ITAT DELHI BENCH. 3. IT IS FURTHER SUBMITTED THAT WHILE IGNORING THE ORDER OF HONBLE ITAT DELHI THE LOWER AUTHORITIES HAVE GONE IN GRE ATER ERROR IN INITIATING THE PENALTY U/S 271(1)(C) OF THE IT ACT WHICH IS SERIOUSLY CHALLENGED BY THE ASSESSEE AS THE SAME IS UNWARRANT ED IN LAW AND ON FACTS OF THE CASE. 4. THAT THE PROVISIONS OF SECTIONS 234B AND 234C A RE NOT APPLICABLE AT ALL AND LEVY OF SUCH INTEREST U/S 23 4B AND 234C MAY BE ANNULLED. 5. THAT THE ABOVE GROUNDS OF APPEAL ARE WITHOUT P REJUDICE TO ONE AND ANOTHER. 6. YOUR APPELLANT CRAVES LEAVE TO ADD ALTER AM END AND / OR FOREGO ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING. 2. AT THE TIME OF HEARING ONLY ONE ISSUE REGARDING CLAIM OF HIGHER DEPRECIATION WAS ARGUED BY LD. AR. HE STATED THAT THIS GROUND IS COVERED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF THE TRIBUNAL IN EARLIER YEARS. HE IN THIS REGARD REFERRED TO THE FOLLOWING ORDERS OF THE TRIB UNAL ENCLOSED IN THE PAPER BOOK FOR ALL THE EARLIER YEARS THE DETAILS OF WHICH ARE AS FOLLOWS:- S.NO. PARTICULARS PAGE NO. 1. COPY OF ITAT ORDERS DATED 16.12.2002 IN ITA NOS. 5863 & 5864/DEL/1997 FOR A.Y. 1993-94 & 1994-95 (RELEVANT PARA NO. 4&5) 7-9 2. COPY OF ITAT ORDERS DATED 02.09.2003 IN ITA NOS. 885/DEL/99 AND 886/DEL/99 FOR A.Y. 1995 - 96 & 1996 - 97 10-11 ITA NO.4711/DEL/2009 3 (RELEVANT PARA NO. 3 4&5) 3. COPY OF ITAT ORDER DATED 26.10.2005 IN ITA NO. 3660/DEL/2000 FOR A.Y. 1998-99 (RELEVANT PARA NO. 3 ) 12-13 4. COPY OF ITAT ORDER DATED 18 TH MARCH 2005 IN ITA NO. 3226/DEL/2002 FOR A.Y. 1999-2000 14-15 5. COPY OF ITAT ORDER DATED 13 TH APRIL 2006 IN ITA NO. 4573/DEL/2003 FOR A.Y. 2000-01 (PARA 2) 16-17 6. COPY OF ITAT ORDER DATED 29 TH JUNE 2007 IN ITA NO. 2727/DEL/2004 FOR A.Y. 2001-02 (PARA 2&2.1) 18-19 7. COPY OF ITAT ORDER 20.12.2007 IN ITA NO. 1049/D EL/2006 FOR A.Y. 2002-03 (PARA 2 3 4 & 5) 20-21 8. COPY OF ITAT ORDER DATED 20.03.2008 IN ITA NO. 2779/DEL/2007 FOR A.Y. 2004-05 (PARA 2 3 & 4) 22-27 9. COPY OF THE ORDER OF CIT(A) DATED 26.08.2008 FOR A.Y. 2005-06 28-33 10. COPY OF ITAT ORDER DATED 24.07.2009 IN ITA NO. 3475/DEL/2008 FOR A.Y. 2005-06 34-36 11. BRIEF SUBMISSION FOR A.Y. 2006-07 BEFORE CIT(A) -XI 37-38 3. LD. AR ALSO SUBMITTED THAT THE AO WHILE NOT ADMI TTING THE CLAIM OF THE ASSESSEE HAS OBSERVED THAT THE DEPARTMENT IS IN APP EAL AGAINST THE APPELLATE ORDER PASSED IN FAVOUR OF THE ASSESSEE IN EARLIER Y EARS AND THEREFORE THE CLAIM OF THE ASSESSEE REGARDING DEPRECIATION IS RESTRICTE D TO 15% INSTEAD OF 30%. AGAIN REFERRING TO THE ORDER OF THE CIT (A) HE SUB MITTED THAT WITHOUT ANY NEW FACTS OR NEW CIRCUMSTANCES THE CLAIM OF THE ASSESSE E HAS BEEN REJECTED BY CIT (A) BY DIVERTING FROM THE EARLIER PRECEDENTS. 4. ON THE OTHER HAND LD. DR RELYING ON THE ORDER OF THE CIT (A) AND AO PLEADED THAT HIGHER DEPRECIATION COULD BE ALLOWED O NLY IN RESPECT OF JIGS AND FIXTURE USED IN RUBBER AND PLASTIC GOODS. 5. IN THE REJOINDER IT WAS SUBMITTED BY LD. AR THA T THE TRIBUNAL IN RESPECT OF EARLIER YEARS HAS GIVEN A FINDING THAT THE DEPRECIA TION WAS IN RESPECT OF JIGS AND FIXTURE USED IN RUBBER AND PLASTIC GOODS THEREFORE THERE BEING NO NEW FACTS OR CIRCUMSTANCES LD. CIT (A) WAS WRONG IN NOT FOLLOWI NG THE EARLIER YEARS PRECEDENTS. 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS IN THE LIGHT OF THE MATERIAL PLACED ON RECORD. FOR ASSESSMENT YEAR 199 3-94 AND 1994-95 THE ITA NO.4711/DEL/2009 4 FINDINGS OF THE TRIBUNAL VIDE ORDER DATED 16 TH DECEMBER 2002 IN ITA NOS.5865 & 5864/DEL/97 (APPEALS FILED BY THE REVENUE) WERE AS UNDER:- 4. AS REGARDS THE SURVIVING GROUND IN THE APPEAL F OR ASSESSMENT YEAR 1994-95 THE CIT(APPEALS) IN ALLOWI NG THE DEPRECIATION AT THE RATE OF 40 PER CENT RECORDED T WO FINDINGS OF FACT THE FIRST BEING THAT THE ITEMS IN QUESTION US ED IN PLASTIC MOULDING MACHINES AND SECONDLY THE ASSESSEE HAD B EEN ALLOWED DEPRECIATION AT THE RATE OF 40 PER CENT IN EARLIER YEARS. HE THEREFORE TOOK THE VIEW THAT THERE WAS NO JUSTIFIC ATION ON THE PART OF THE ASSESSING OFFICER IN RESTRICTING THE DEPRECIATI ON TO 25 PER CENT AND HE IN TURN DIRECTED REQUISITE RELIEF. 5. AFTER HEARING BOTH THE PARTIES WE ARE OF THE VI EW THAT NO INTERFERENCE IS WARRANTED IN THE ORDER PASSED BY TH E CIT (APPEALS) INASMUCH AS FINDINGS OF FACT RECORDED BY HIM REMAI NED UN-REBUTTED BEFORE US. IT WAS INCUMBENT ON THE PART OF THE DEP ARTMENT IN ITS APPEAL TO EITHER BEING ON RECORD RELEVANT FACTS OR TO HIGHLIGHT THE POSITION OF LAW WHEREBY A VIEW TO THE CONTRARY AND IN FAVOUR OF THE REVENUE COULD BE TAKEN BUT BOTH THESE ARE ABSENT I N THE PRESENT APPEAL. GROUND NO. 2 FOR ASSESSMENT YEAR 1994-95 IS THEREFORE REJECTED. 7. IN SUBSEQUENT YEARS THE SAID ORDER HAS BEEN FOL LOWED BY THE TRIBUNAL THE COPIES OF WHICH ARE ATTACHED BY LD. AR IN THE PAPER BOOK. NO MATERIAL HAS BEEN BROUGHT ON RECORD BY THE AO TO SUGGEST THAT THERE W AS ANY MATERIAL CHANGE IN THE FACTS AND CIRCUMSTANCES OF THE CASE. THE REASO N GIVEN BY THE AO IS ONLY THAT IN EARLIER YEARS THE DEPARTMENT IS IN APPEAL AGAIN ST THE APPELLATE ORDERS IN FAVOUR OF THE ASSESSEE. THE CONSISTENCY HAS TO BE ADOPTED AND UNLESS THERE IS POSITIVE MATERIAL ON RECORD TO SUGGEST THAT THERE IS CHANGE IN THE FACTS AND CIRCUMSTANCES OF THE CASE SO THAT A DIFFERENT VIEW COULD BE TAKE N. IN OUR OPINION THE LD. CIT (A) HAS COMMITTED A MISTAKE IN NOT FOLLOWING THE EA RLIER POSITION IN THE CASE OF THE ASSESSEE WITHOUT BRINGING ANY FRESH MATERIAL ON REC ORD TO SUGGEST THAT FACTS FOR THE PRESENT YEAR WERE IN ANY WAY DIFFERENT. THEREFO RE RESPECTFULLY FOLLOWING THE EARLIER DECISIONS OF THE TRIBUNAL WE SET ASIDE THE ORDER OF THE CIT (A) ON THIS ISSUE AND DIRECT THE AO TO ALLOW THE HIGHER DEPRECI ATION AS PER CLAIM OF THE ASSESSEE. ITA NO.4711/DEL/2009 5 8. AS POINTED OUT EARLIER NO OTHER GROUND WERE ARG UED BY LD. AR AND MOREOVER THE ISSUE REGARDING INITIATION OF PENALTY U/S 271(1)(C) IS PREMATURE AND LEVY OF INTEREST U/S 234B AND 234C IS CONSEQUENTIAL . WITH THESE OBSERVATIONS THE APPEAL FILED BY THE ASSESSEE IS ALLOWED IN PART IN THE MANNER INDICATED ABOVE. 9. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 19.02.20 10. SD/- SD/- [G.E. VEERABHADRAPPA] [I.P. BANSAL] VICE PRESIDENT JUDICIAL MEMBER DATED 19/02/2010. DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT TRUE COPY BY ORDER DEPUTY REGISTRAR ITAT DELHI BENCHES