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Income Tax Appellate Tribunal, “K”
Before: HON’BLE SH. G. S. PANNU, AM & HON’BLE SH. SANDEEP GOSAIN, JM
ITO WD 7(1)(2) Owens Corning (India) Pvt. AayakarBhavan, M. K. Ltd. Road, Formerly Known as Owens बिधम/ Mumbai-400020 Corning India Ltd. Vs. Alpha Building, 7th floor, Hirandani Gardens, Powai, Mumbai-400 076 स्थायीलेखासं./जीआइआरसं./PAN No. AAACO1739M (अपीलाथी/Appellant) (प्रत्यथी / Respondent) : अपीलाथीकीओरसे/ Appellant by : Ms. HiralHaria, AR प्रत्यथीकीओरसे/Respondentby : Shri Saurabh Deshpande, DR सुनवाईकीतारीख/ : 17/07/2018 Date of Hearing घोषणाकीतारीख / 08/08/2018 : Date of Pronouncement आदेश / O R D E R
Per Sandeep Gosain, Judicial Member:
The present Appeal filed by the assesseeis against the order of Ld. CIT(A)-13, Mumbai dated 14.03.16 for AY 2010- 11on the grounds mentioned herein below:-
1:0 Re.: Disallowance of amortisation of the premium paid for the leasehold land:
1 The Commissioner of Income-tax (Appeals) has erred in confirming the disallowance of Rs. 20,14,932/- being the amortised amount of the premium paid for acquiring lease rights over a plot of land.
2 The Appellant submits that considering the facts and circumstances of its case and the law prevailing on the subject, the said amount amortised is deductible while computing its total income and the action of the Assessing Officer in this respect is not in accordance with law and the Commissioner of Income-tax (Appeals) ought to have held as such.
3 The Appellant submits that the Assessing Officer be directed to delete the disallowance so made by him and to re-compute its total income accordingly.
2:0 Re.: Disallowance of depreciation on additions to the fixed assets made during the Assessment Year 2006-2007:
2:1 The Commissioner of Income-tax (Appeals) has erred in confirming the disallowance of depreciation of Rs. 32,34,617/- (pertaining to the assets acquired during the Assessment Year 2006-2007) out of the total depreciation of Rs. 19,06,53,664/- claimed by the Appellant for the year under consideration.
2 :2 The Appellant submits that considering the facts and circumstances of its case and the law prevailing on the subject it is entitled to claim depreciation of Rs. 19,06,53,664/- while computing its total income for the year and the action of the Assessing Officer in this respect is not in accordance with law and the Commissioner of Income-tax (Appeals) ought to have held as such.
2 : 3 The Appellant submits that the Assessing Officer be directed to allow depreciation as claimed by it and to re-compute its total income accordingly.
3: 0 Re.: General:
3: 1 The Appellant craves leave to add, alter, amend, substitute and / or modify in any manner whatsoever all or any of the foregoing grounds of objections at or before the hearing of the appeal.
The brief facts of the case are that the AO had made certain additions in the case of M/s Owens Corning (India) Pvt. Ltd. Aggrieved by the order of AO, assessee preferred appeal before Ld. CIT(A) and Ld. CIT(A) after considering the case of both the parties, partly allowed the appeal of the assessee.
Aggrieved by the order of Ld. CIT(A), assessee has preferred the present appeal by raising the above grounds.
Ground No. 1. 3. This ground raised by the assesseerelates to challenging the order of Ld. CIT(A) in confirming the disallowance of Rs. 20,14,932/- being the amortised amount of the premium paid for acquiring lease rights over a plot of land.
At the very outset Ld. AR drawn our attention to application dated 19.06.18 thereby making declaration u/s 158A(1) of I.T. Act, 1961 to the effect that ground no. 1 raised in the present appeal is with regard to challenging the order in respect of disallowance of amortization of the premium paid for the leasehold land has already been decided by the Coordinate Bench of Hon’ble ITAT in assessee’s own case for AY 2001- 02, 2004-05, 2005-06 and 2013-14. It was also submitted that the assessee has filed an appeal before Hon’ble Bombay High Court against the order dated 16.03.11 for AY 2004-05 and the same has been admitted by the Hon’ble Bombay High Court.
In view of these facts, the assessee has filed an application in accordance with section 158A of the I.T. Act vis-à-vis the issue and has requested that appropriate directions be given to the AO.
After hearing the parties at length and after having gone through the material placed on record as well as orders passed by revenue authorities, we are convinced that issue no. 1 has already been decided by the Coordinate Bench of Hon’ble ITAT in for AY 2013-14, wherein it was held that the assessee has already filed an appeal before Hon’ble Bombay High Court and the Hon’ble Bombay High Court had admitted the same.
Therefore, respectfully following the order passed by the Coordinate Bench of Hon’ble ITAT in for AY 2013-14, we dismiss this ground of appeal raised by the assessee with a direction to the AO that as an when decision on the question of law before the Hon’ble Bombay High Court becomes final, then it shall be applied for the year under consideration and if necessary, the AO shall amend order accordingly. With these directions, this ground raised by the assessee is disposed of accordingly.
Ground No. 2. 5. This ground raised by assessee relates to challenging the order of Ld. CIT(A) in confirming the disallowance of depreciation of Rs. 32,34,617/- (pertaining to the assets acquired during the Assessment Year 2006-2007) out of the total depreciation of Rs. 19,06,53,664/- claimed by the assessee for the year under consideration.
Ld. AR appearing on behalf of the assessee submitted before us that the present case is covered by the order of Hon’ble ITAT in for AY 2013-14 in assessee’s own case, wherein the identical grounds raised in the present appeal have already been decided on merits.
On the other hand, Ld. DR did not dispute the legal position.
We have heard both the partiesand we have also perused the material placed on record as well as the orders passed by revenue authorities. We find that the identical ground has already been decided by the Coordinate Bench of Hon’ble ITAT in for AY 2013-14 in assessee’s own case. The operative portion of the order of Hon’ble ITAT contained in para no. 17, which is reproduced below:-
Having considered the rival stands, in our view, the lead year of dispute is Assessment Year 2006-07. In Assessment Year 2006-07, the depreciation in respect of ‘addition to fixed assets’ made in that year has not been allowed by the income-tax authorities and the said position continues to prevail till now. In this view of the matter, in our view, the Assessing Officer made no mistake in giving consequential effect and scaling down assessee’s claim for depreciation in this year. We are inclined to uphold the stand of the Assessing Officer with a caveat that if the position of assessee’s claim of depreciation for Assessment Year 2006-07 is altered by any higher authority in favour of the assessee, the consequential relief be allowed to the assessee in the instant assessment year also. With these remarks, we hereby affirm the ultimate decision of the Assessing Officer and accordingly, assessee fails on this aspect.
After having gone through the facts of the present case as well as considering the orders passed by revenue authorities and Hon’ble ITAT as mentioned above in assessee’s own case, we find that the identical issues have already been decided by the Hon’ble ITAT in assessee’s own case for AY 2013-14 in ITA No. 5959/Mum/2017. Therefore,respectfully following the decision of the Coordinate Bench of Hon’ble ITAT and in order to maintain judicial consistency, we apply the same findings in the present case which are applicable mutatis mutandis in the present case. Therefore, we order accordingly.
In the net result, the appeal filed by the assessee stands dismissed with no order as to cost. Order pronounced in the open court on 8th August 2018 Sd/- Sd/- (G. S. Pannu) (Sandeep Gosain) लेखासदस्य / Accountant Member न्याययकसदस्य / Judicial Member मुंबई Mumbai;यदनांकDated : 08.08.2018 Sr.PS. Dhananjay आदेशकीप्रनिनिनिअग्रेनर्ि/Copy of the Order forwarded to : 1. अपीलाथी/ The Appellant 2. प्रत्यथी/ The Respondent आयकरआयुक्त(अपील) / The CIT(A) 3. 4. आयकरआयुक्त/ CIT- concerned 5. यवभागीयप्रयतयनयि, आयकरअपीलीयअयिकरण, मुंबई/ DR, ITAT, Mumbai गार्डफाईल / Guard File 6. आदेशधिुसधर/ BY ORDER,