VIPUL IMPEX & INFRA BUILD ,MUMBAI vs. DCIT - RG- 4 (2)(3), MUMBAI

आयकर अपीलीय अधिकरण “SMC” न्यायपीठ म ुंबई में। IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, MUMBAI श्री शमीम याहया, लेखा सदस्य एवं श्री अमरजित ससंह, न्याययक सदस्य के समक्ष। BEFORE SRI SHAMIM YAHYA, AM AND SRI AMARJIT SINGH, JM आयकर अपील सुं./ (यिर्ाारण वर्ा / Assessment Year 2004-05) M/s Vipul Impex & Infra The Dy. Commissioner of Build Ltd. Income, 140K, Cavel Cross Lane Range 4(2)(3) बनाम/ No.7, Kalbadevi Road, Mumbai Vs. Mumbai-400 002 (अपीलार्थी / Appellant) (प्रत्यर्थी/ Respondent) स्र्थायी लेखा सुं./PAN No. AAACJ1970D अपीलार्थी की ओर से / Appellant by : None प्रत्यर्थी की ओर से / Respondent by : Shri Akhtar Ali Ansari, DR सुिवाई की तारीख / Date of hearing: 09.01.2020 घोर्णा की तारीख / Date of pronouncement : 02.03.2020 आदेश / O R D E R शमीम याहया, लेखा सदस्य/ PER SHAMIM YAHYA, AM:

This appeal by the assessee is directed against the order of learned CIT(A) dated 30.08.2018 and pertains to Assessment Year 20104-05. 2. The grounds of appeal read as under: - “1) The Ld. CIT (A) erred in dismissing the Appeal No. 100761-18-19/AY 2004-05 against Assessment Order passed u/s 2 | P a g e Vipul Impex & Infra Build Ltd. 143(3) dated 25th March, 2015 by the Income Tax Officer 4 (2) (3), Mumbai. 2) On the statements of facts and circumstances of the case, the assessing officer is wrong in reopening of assessment for AY 2004-05 u/s 148 as issue of notice is bad in la and void. 3) On the statement of facts and circumstances of the case, the addition of Rs. 2,79,897/- made towards excess depreciation claimed u/s 32 is bad in law as PUF insulations are part of plant and machinery and does not change its basic character because of being wrongly classified under the head electrical installation and accordingly appellant is entitled to depreciation claim of 25%. 4) Assessee may be afforded an opportunity to produce the legal and factual position before confirming the additions."

3. This is the second round of appeal before the ITAT in this case. The issue in dispute is the chargeability of depreciation, whether the same should be at the rate of 25% as claimed by the assessee or 15% as allowed by the Assessing Officer on the ground that the items in dispute are electrical fittings. The 3 | P a g e Vipul Impex & Infra Build Ltd. Assessing Officer examined the issue, according to the direction of the ITAT and has held that the depreciation is allowable at the rate of 15% being electrical fitting. Upon assessee’s appeal, the learned CIT(A) has dealt with the issue in dispute elaborately and held as under: - “4.2.2 During the appellate proceedings the appellant had placed various submissions and has taken the same stand which it had taken before the Assessing Officer. All the submissions of the appellant have been carefully considered. As seen this issue has been dealt at length in the order u/s.143(3) r.w.s 147 and also in the order passed by the Assessing Officer u/s.143(3) r.w.s 254 completed as per the directions of the Hon'ble ITAT. As seen from the order, AO has strictly adhered to the directions of the Hon'ble ITAT, adequate opportunity of being heard was provided, all the objections have been disposed of and finalized the order. All the submissions of the assessee were perused by the Assessing Officer and came to a conclusion that the appellant had not furnished any documentary evidence to substantiate which can prove that the electric installation was part of 'plant and 4 | P a g e Vipul Impex & Infra Build Ltd. machinery’ it is also a fact that the appellant itself had categorically classified the asset as 'electrical installation'.

4.2.3 On perusal of the facts of the case, it had travelled at length from CIT(A) and Hon'ble ITAT and again came for fresh adjudication. During this period and also subsequently appellant had enough time to establish its ground with proper documentary evidences. As seen from the record, neither it produced any worthwhile material nor substantiated with proper explanation. The assessing Officer had analyzed the earlier order of the AO, CIT(A) and also adhered strictly to the directions given by the Hon'ble ITAT. After flowing due procedure and accordingly the order u/s 143(3) read with section 254 was passed.”