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Income Tax Appellate Tribunal, MUMBAI BENCHES “I”, MUMBAI
Before: Shri JOGINDER SINGH, & Shri G. MANJUNATHA
आदेश / O R D E R
Per Joginder Singh (Judicial Member) These two appeals for assessment year 2010-11 and 2012-13 are by the assessee, challenging the impugned orders of the learned First Appellate Authority, dated 4th August 2015 and 24th June 2016 respectively, on the grounds stated in the Grounds of appeal with respect to not allowing depreciation of Rs. 22,50,000/- on the tenancy rights (A.Y 2010-11) claimed by the assessee and further not allowing depreciation of Rs. 29,53,125/- on the tenancy rights (A Y 2012-13).
During hearing the learned counsel for the assessee on 7.06.2018 stated that the assessee vide letter dated 29.07.2015 sought to file additional evidences running into 42 pages but the office of the learned CIT(A) refused to take the additional evidence on the ground that order has already been passed. Whereas, on receipt of the order it was found that order has been passed on 4th August 2015, thus, the assessee was prevented by sufficient cause to substantiate its claim as the additional evidence sought to be filed goes to the root of 3 ITA 5117/Mum/2015 & 5872/Mum/2016 for A.Y 2010-11 & 2012-13 K J Somaiya & Sons Pvt Ltd. the matter. At this stage the learned AR pointed out that there is no evidence of denial by the office of the learned CIT(A). At this stage the assessee stated that he is ready to file an affidavit in support of its claim. The matter was adjourned to 14.06.2018. Today the assessee has filed an affidavit wherein the facts have been mentioned. The assessee has also filed additional grounds of appeal.
We have considered the rival submissions and perused the material available on record. The facts in brief are that the assessee is engaged in the business of brand development and property letting declared total income of Rs. 85,24,827/- (for A.Y.2010-11). The assessee paid an amount of Rs. 1,80,00,000/- in respect of tenancy right of the premises in the building known as Yusuf Building. The assessee claimed depreciation of Rs. 22,50,000/-on the said amount as tenancy rights. The claim of the assessee is that earning rental income, which is assessed as business income therefore, the depreciation has to be allowed. Likewise for A.Y. 2012-13 the assessee declared income of Rs. 1,43,75,402/- in its return
4 ITA 5117/Mum/2015 & 5872/Mum/2016 for A.Y 2010-11 & 2012-13 K J Somaiya & Sons Pvt Ltd. filed on 28.09.2012. The assessee claimed depreciation to the tune of Rs. 29,53,125/-As per the Revenue the tenancy agreement shows that the tenancy rights of Room NO.21A in Yusuf Building was surrendered by Shri Sagar Vinod Chandra Mehta in favour of Mrs. Jasmine Trading Company Ltd., with a request to accept the assessee as their tenant. The learned Assessing Officer disallowed the depreciation.
On appeal before the learned CIT(A), as per the assessee, additional evidence was requested to be filed but the same was not accepted by the Office of the learned First Appellate Authority on the ground that order has already been passed.
As per the sworn certificate, on 29.07.2015, late afternoon the deponent went to the office of the learned CIT(A) to file a letter dated 29.07.2015 along with submissions running into 42 pages but the same was refused to be entertained. Thus, without going into too much deliberation and considering the affidavit sworn by Mr. Bhadresh K Shah, and on the principle of natural justice, we deem it appropriate to remand both the appeals to the file of the learned CIT(A) to adjudicate the 5 ITA 5117/Mum/2015 & 5872/Mum/2016 for A.Y 2010-11 & 2012-13 K J Somaiya & Sons Pvt Ltd. issues raised by the assessee afresh on merit, considering the paper-book sought to be filed by the assessee. The assessee is at liberty to furnish necessary evidence, if any, in support of its claim. Even otherwise, as per Article 265 of Constitution of India only due taxes has to be levied and collected. The assessee be given opportunity of being heard. Thus, the appeals of the assessee are allowed for statistical purposes only.
This Order was pronounced in the open court in the presence of ld. representatives from both sides at the conclusion of the hearing on 14/06/2018.