Income Tax Appellate Tribunal - Mumbai
Mirc Electonics Ltd. , vs Department Of Income Tax on 11 September, 2014
अिधकरण, मुंबई Ûयायपीठ ए , मुंबई ।
आयकर अपीलीय अिधकरण, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES "A", MUMBAI सव[ौी जोिग᭠दर ᳲसह, ᭠याियक सद᭭य एवं राजेÛि, लेखा सदःय, के सम¢ । Before Shri Joginder Singh, JM and Shri Rajendra, AM ITA NO.9579/MUM/2004 (A.Y.2001-02) ACIT, CC-37 M/s. Mirc Electronics Room No.11 Ground Floor, बनाम G-1, MIDC, Onida House बनाम/ Aayakar Bhavan Mahakali Caves Road Vs. Mumbai-400 020. Andheri (E) Mumbai-400 093.
(अपीलाथȸ /Appellant) (ू×यथȸ/Respondent) ITA NO.3193/MUM/2008 (A.Y.2004-05) M/s. Mirc Electronics ACIT, CC-37 G-1, MIDC, Onida House बनाम Room No.11 Ground Floor, बनाम/ Mahakali Caves Road Aayakar Bhavan Vs. Andheri (E) Mumbai-400 020.
Mumbai-400 093.
(अपीलाथȸ /Appellant) (ू×यथȸ/Respondent)
अपीलाथȸ कȧ ओर से /Revenue by : Shri Jeevanlal Lavadiya
ू×यथȸ कȧ ओर से /Assessee by : Shri Priyesh Vira
सुनवाई कȧ तारȣख / घोषणा कȧ तारȣख /
Date of Hearing : 11.09.2014 Date of Pronouncement :
11.09.2014
आदे श / O R D E R
PER JOGINDER SINGH (JM)/ जोिग᭠दर ᳲसह, ᭠याियक सद᭭य:
In both these appeals the limited adjudication pertains to disallowance of assessee's claim is on account of depreciation on the asset of Vasai Unit. During hearing both these appeals on the impugned
2 I TA N O . 9 5 7 9 / M U M / 2 0 0 4 & 3 1 9 3 / M / 0 8 (A.Y. 01- 02)& (04- 05) issue, the ld. Counsel for the assessee Shri Priyesh Vira contended that the issue has already been settled by the Tribunal vide order dated 16.11.2011 (MA No.205/Mum/2011) .This factual matrix was consented to be correct by the ld. DR Shri Jeevanlal Lavadiya. The relevant portion of the aforesaid order is reproduced hereunder :-
"5. We have carefully considered the submissions of the rival parties and perused the material available on record. We find that the facts are not in dispute inasmuch as it is also not in dispute that on the plant & machinery the depreciation was allowed to the assessee in preceding years as well as in succeeding years. It was disallowed by the AO, CIT(A) and the Tribunal on the ground that during the year under consideration the plant & machinery were not put to used and for this purpose the Tribunal has relied on the decision of the Hon'ble jurisdiction High Court in the case of Dinesh Kumar Gulabchand Agarwal (supra). We further find that at the time of hearing of the appeal, in the rejoinder, it was stated by the ld. Counsel for the assessee that the said decision is not applicable as in that case the machinery was not put to use and for this reason the depreciation was not allowed, whereas in the assessee's case, the machinery was used in earlier years and on account of dispute it could not be used for the year under consideration and, therefore, the said decision is distinguishable and not applicable to the facts of the assessee's case. However, we find that the Tribunal, while applying the ratio of the decision in the case of Dinesh Kumar Gulabchand Agarwal (supra), has not considered the said distinguishing feature and has applied the said decision against the assessee. We further find that in the subsequent decision the Hon'ble Jurisdictional High Court in the case of G.R. Shipping Ltd. (supra), has allowed the depreciation following the decision in the case of Whittle Anderson Ltd. vs. CIT (79 ITR 613) (Bom.) and in the case of CIT vs. G.N. Agarwal (Individual) (217 ITR 250 )(Bom.). Since the Tribunal while applying the decision in the case of Dinesh Kumar Gulabchand Agarwal (supra) has not considered the distinguishing feature pointed out by the ld. Counsel for the assessee in para 12 of its order, therefore, there in an apparent mistake in the order of the Tribunal in terms of sec.254(2) of the Act. This being so and keeping in view that the matter requires proper appreciation of facts and law, therefore, in the interest of justice, we are of the 3 I TA N O . 9 5 7 9 / M U M / 2 0 0 4 & 3 1 9 3 / M / 0 8 (A.Y. 01- 02)& (04- 05) view that the order passed by the Tribunal on the issue of depreciation may be recalled and accordingly we recall the order dated 25.09.2007 for the limited purpose to reconsider the issue of depreciation afresh and according to law. The misc. application filed by the assessee is, therefore, partly allowed. The Registry is directed to fix the date of hearing on 16-01-2012."
2. We have considered the submissions put forth by the ld. Respective Counsel and peruse the material available on record. The Tribunal in the aforesaid order has recorded a factual finding that in preceding and succeeding years depreciation was allowed to the assessee on the plant & machinery and such machinery could not be put to use for the year under consideration on account of dispute, but fact remains for earlier year the machinery was used. The Tribunal placed reliance upon the decision from Hon'ble Jurisdictional High Court in the case of G.R. Shipping (Income Tax Appeal No.598/M/09 dated 28/7/09) wherein allowed the depreciation on the barge though it was not used for a single day. The Bench has already discussed the case Whittle Anderson Ltd. Vs. CIT (79 ITR 613)(Bom) and CIT vs. G.N. Agarwal (Individual) 217 ITR 250(Bom.). The Hon'ble Calcutta High Court in CIT vs. Norplex Oak India (2011) 198 Taxmann 470 wherein due to adverse situation in the state the machine could not be used, it was held that the assessee is entitled to get the benefit of section 32. Identical ratio was laid down in CIT vs. International Creative Foods Pvt. Ltd. 199 taxmann 273 (Ker.), CIT vs. India Tea & Timber Trading Company (221 4 I TA N O . 9 5 7 9 / M U M / 2 0 0 4 & 3 1 9 3 / M / 0 8 (A.Y. 01- 02)& (04- 05) ITR 857) (Gau.), CIT vs. Nahar Exports Ltd. (163 Taxmann 5180)(P&H) and CIT vs. Blend Well Bottles (P) 323 ITR 18 (Kar.). In view of this factual and legal position to this limited extent only the ground raised by the assessee is allowed in both the years.
3. In the result the impugned ground, so raised, in the appeals is allowed.
Order pronounced in the open court in the presence of ld. Representatives from both sides at the conclusion of the hearing on 11th Day of September, 2014 .
आदे श कȧ घोषणा Ǒदनांकः 11.09.2014 को कȧ गई ।
Sd/- Sd/-
(Rajendra) (Joginder Singh)
लेखा सदःय / ACCOUNTANT MEMBER Ûयाियक सदःय / JUDICIAL MEMBER
मुंबई Mumbai; Ǒदनांक Dated : 11th Sept. 2014. JV.
आदे श कȧ ूितिलǒप अमेǒषत/Copy षत of the Order forwarded to :
1. अपीलाथȸ / The Appellant
2. ू×यथȸ / The Respondent.
3. आयकर आयुƠ(अपील) / The CIT, Mumbai.
4. आयकर आयुƠ / CIT(A)-13, Mumbai
5. ǒवभागीय ूितिनिध, आयकर अपीलीय अिधकरण, मुंबई / DR, ITAT, Mumbai
6. गाड[ फाईल / Guard file.
आदे शानुसार/ ार BY ORDER, स×याǒपत ूित //True Copy// उप/ उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपीलीय अिधकरण, अिधकरण, मुंबई / ITAT, Mumbai