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Income Tax Appellate Tribunal, “G” BENCH, MUMBAI
Before: SHRI RAJENDRA, AM & SHRI AMARJIT SINGH, JM
O R D E R
PER AMARJIT SINGH, JM:
The assessee has filed the present appeal against the order dated 06.04.2010 passed by the Commissioner of Income Tax (Appeals) - 16, Mumbai [hereinafter referred to as the “CIT(A)”] relevant to the A.Y.2004-05.
The assessee has raised the following grounds:-
ITA No.5212/M/2010 A.Y.2004-05 “1. The Hon’ble Commissioner of Income Tax (Appeals) (referred as “CIT(A)”) has erred in confirming order of the learned Asst. Commissioner of Income Tax Circle 8(1) (referred as “A.O.”) disallowing the claim of depreciation of Rs.1,02,45,231/- made by appellant. The CIT(A) has failed to appreciate that the assessment order under sec. 143(3) of the Income Tax Act, 1961 dated 17th March, 2006 was passed by then A.O. after considering the entire material on record in respect of depreciation on time sharing units. The CIT(A) has erred in confirming order of the ACIT inspite of the fact that an appeal has been filed before the Income Tax Appellate Tribunal against the order of the Hon’ble Commissioner of Income Tax under sec. 263 of the I.T.Act on the issue of such disallowance of depreciation on time sharing unit and is pending for disposal. Accordingly, direction should be given in this regard.”
The brief facts of the case are that the assessment u/s.143(3) of the Income Tax Act, 1961 ( in short “the Act”) was completed on 27.12.2006, determining total income to the of Rs.1,18,68,270/-. Thereafter, the learned Commissioner of Income Tax – 8, Mumbai passed an order u/s.263 of the Act on 26.03.2009 with the following directions:-
“The assessment being clearly and patently erroneous and prejudicial to the interest of revenue on account of allowance of depreciation on time schedule to set aside with the directions to disallow the depreciation after verifying as to how much depreciation is included in the chart of depreciation pertaining to time schedule. The A.O. shall give reasonable opportunity of being heard to the assessee.”
Thereafter, the notice was issued to the assessee and the controversy on account of depreciation claimed on time sharing unit was adjudicated and ITA No.5212/M/2010 A.Y.2004-05 the income was assessed to the tune of Rs.2,21,13,591/-. Thereafter, the appeal was filed before the CIT(A) by the assessee but the CIT(A) confirmed the order of the Assessing Officer, therefore the present appeal has been filed before us.
ISSUE NO.1:- 4. Under this issue the only question which has been raised by the assessee is in connection with the depreciation claimed on time sharing unit. In this regard the Hon’ble Income Tax Appellate Tribunal have already directed the Assessing Officer to verify the claim in for A.Y.2004-05 vide order dated 19.06.2013 filed by the assessee, vide which the order passed by the CIT(A) u/s.263 of the Act has been upheld. Since this issue has already been restored in ITA No.3106/M/2009, wherein the Hon’ble Income Tax Appellate Tribunal has directed the Assessing Officer to verify whether the property time sharing units actually falls under the category of intangible assets after giving a reasonable opportunity of being heard to the assessee. Therefore, in the said circumstances there is no need to decide this issue since this issue has already been pending before the Assessing Officer for verification. Hence we remand the said issue to file of Assessing Officer to decide this issue in accordance with law after giving an opportunity of being heard to the assessee on the above stated terms as directed in the ITA No.3106/Mum/2009 for A.Y.2004-05 vide order dated 19.06.2013. Accordingly, this present appeal is hereby allowed for statistical purpose.
ITA No.5212/M/2010 A.Y.2004-05