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Income Tax Appellate Tribunal, MUMBAI BENCH “SMC”, MUMBAI
Before: SHRI G.S. PANNU
This appeal by the assessee is directed against the order of CIT(A)-20, Mumbai dated 29.07.2015, which has been passed in consequence to the order of Tribunal in dated 24.11.2008, whereby the matter was restored back to the file of CIT(A).
In this appeal, assessee has raised the following Ground of appeal:-
1. That on facts and in the circumstances of the case and in law, the ld. C.I.T (Appeals) has erred in upholding the action of ld. Assessing Officer by not allowing the legitimate claim of depreciation of Rs.84,73,589/- on I.T. Park & Call Centre buildings which undisputedly are wholly owned & being used for the business purposes, despite furnishing the claim of depreciation in assessment proceeding & income derived from which buildings have been offered & also assessed under business income head.
3. The relevant facts are that originally in an assessment finalised u/s 143(3)(ii) of the Act dated 16.3.2005 the Assessing Officer, inter- alia, denied claim of depreciation of Rs.84,73,589/- in relation to Information Technology Park and Call Centre buildings. When the issue came up before the Tribunal, vide order dated. 24.11.2008 (supra) the matter was remanded back to the file of CIT(A). By way of the impugned order, CIT(A) has upheld the denial of depreciation by noticing that in the assessee’s own case for Assessment Year 2005-06 as well as 2010-11, the Tribunal has declined the claim of depreciation. Following the aforesaid precedents, CIT(A) has decided the issue against the assessee.
4. Before me, it was a common point between the parties that the precedents relied upon by CIT(A) continue to hold the field and, therefore, the issue is liable to be decided against the assessee. We hold so. Further, at the time of hearing, learned representative for the assessee referred to the declaration made u/s 158A(1) of the Act by pointing out that an identical question of law has been admitted by the Hon'ble Bombay High Court u/s 260A of the Act in respect of Assessment Year 2005-06 as well as for other assessment years. A copy of the order of Hon'ble High Court in of 2010 dated 22.7.2011 admitting the following question of law has been placed on record :-
“Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in upholding the order of the CIT(A) and the assessing officer in not allowing the appellant’s claim of depreciation of Rs.9,12,064/- on buildings owned by the appellant and used for the purpose of the business of running an I.T. Park and an International Call Centre only because the said buildings were shown as stock-in-trade in the books of accounts ?”
The ld. DR appearing before me has not made any claim doubting the correctness of the claim made by the assessee.
In view of the aforesaid, while the issue is decided against the assessee, the Assessing Officer is directed that when the decision on the question of law pending before the Hon'ble High Court becomes final, the same shall be applied in the instant year also, notwithstanding that the assessee does not prefer an appeal on the said question of law before the Hon'ble High Court for the instant year.
Resultantly, appeal of the assessee is dismissed, subject to the above directions in terms of Sec. 158A of the Act.
Order pronounced in the open court on 5th October, 2016.