Filling of appeal in the High Court against order of ITAT have no effect as High Court neither can set aside nor can give stay

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH “B”, KOLKATA

Before

Shri N.Vijayakumaran, Judicial Member.

and

Shri C.D.Rao, Accountant Member

ITA No.443/Kol/2011

Assessment Year: 2006-07

D.C.I.T., Circle-5, Kolkata

(APPELLANT )

Versus

.

M/s. Kesoram Industries Ltd., Kolkata

(PAN :: AABCK 2417 P)

(RESPONDENT)

For the Appellant: Shri Ajay Kr.Singh

For the Respondent: Shri A.K.Gupta

Date of Hearing : 08.12.2011.

Date of Pronouncement : 12.12.2011.

ORDER

Per Shri C.D.Rao, AM

This appeal is filed by Revenue against the order dated 06.12.2010 of the ld. CIT(A)-VI, Kolkata pertaining to A.Yr. 2006-07.

2. The only effective ground raised by the Revenue reads as under :-

“1. That on the facts and circumstances of the case, Ld.CIT(A)-VI, Kolkata has erred in law as well as on facts by deleting the addition of excess depreciation claimed of Rs.1,61,95,130/- by relying upon the decision of the Hon’ble ITAT in the case of the assessee for the A.Yrs. 2001-02 to 2005-06 in view of the fact that it has not been accepted by the department and has filed appeal before the Hon’ble High Court.”

3. At the time of hearing before us the ld. Counsel appearing on behalf of assessee has submitted that on similar issue in assessee’s own case for A.Yr. 2007-08 this Tribunal has dismissed the departmental appeal in ITA No.190/Kol/2011 order dated 2.11.2011. Since the facts in this case are identical to that of the decision of the Tribunal for A.Yr. 2007-08 he requested to dismiss the revenue’s appeal.

4. On the other hand the ld. DR appearing on behalf of the revenue though relied on the orders of AO could not contradict the submissions of the ld. Counsel for assessee.

5. After hearing the rival submissions and on careful perusal of materials available on record, it is observed that the issue raised by the revenue is covered by earlier orders of this Tribunal. The relevant findings of this Tribunal in ITA No.190/Kol/2011 order dated 02.11.2011 are as under :-

“3. The brief facts of this issue are that the assessee claimed depreciation of Rs.109,13,25,097/- in the return of income. The assessee claimed this depreciation on an enhanced WDV by assuming that the depreciation for assessment year 1999-2000 was not allowed to it. While doing the scrutiny assessment Assessing Officer has disallowed an amount of Rs.1,35,87,876/-. The observations of ld. CIT(A) on the action of Assessing Officer are as under :-

“For A.yr. 1999-2000, the assessee did not claim any depreciation on certain assets added to the block in its return of income but later on May, 24, 2001 the assessee filed an application u/s. 154 which was rejected by A.O. on 05/05/2006. The assessee did not take any further step to challenge the order of A. O. For the subsequent Asstt. Years namely 2000-01, 2001-02, 2002-03 and 2003-04 the assessee claimed depreciation in its returns by computing the Written Down Value (WDV) of the block in accord with its claim made, in the rectification application filed on 24/05/2001 for A.Y.1999-00. The assessee filed three rectification applications for A. Ys. 2 000-01, 2001-02 & 2002-03 stating that the opening WDV of the block of assets for the said A. Ys. should be enhanced in accord with his order dt. 05/05/06 rejecting the claim for depreciation for the A. Y. 1999-00 The A. 0. again rejected the rectification applications filed by the assessee for A. Ys. 2000-01, 2001-02 and 2002-03 stating that there was no ground for rectification since the depreciation had been allowed as claimed by the assessee in its return itself and the issue was also debatable. - Against the said three orders rejecting the applications for rectification for A. Ys. 2001-02, 2001-02 and 2002-03, assessee filed three appeals before Ld. CIT(A), who allowed such appeals and directed the A.O. to determine WDV of the block of assets. The department has preferred these three appeals against the order of Ld CIT(A). For the A. Y. 2003-04, the assesse was in appeal before CIT(A) and took an additional ground claiming depreciation on such higher WDV of the block of assets as a result of denial of the depreciation for A. Y. 1999-00, which was rejected by the CIT(A). Against the order of Ld. CIT(A) for A.Y 2003-04, the assessee filed an appeal before Hon‘ble Tribunal. The Hon‘ble ITAT in ITA No.308/Kol/07 directed the A.O. to determine the correct opening WDV of the block of assets in accordance with theprovisions of Sec. 43(6)(c)(ii) of the I.TAct. 

Therefore, the issue is whether the A. 0. was bound to rectify the WDV of the block of assets for the three subsequent A. Ys. Involved consequent upon rejection of the claim for depreciation for A. Y. 1999-00. The Hon’ble ITAT upheld the decision of Ld. CIT(A) holding that the application for rectification filed by the assessee was just and proper.”

Thus in all the assessment years subsequent to assessment year 1999- 2000 the assessee has claimed depreciation on the enhanced WDV on the ground that its request for allowing depreciation for assessment year 1999- 2000 had been rejected. In assessment years prior to assessment year 2007-08 the plea of the assessee for allowing depreciation on enhanced value of WDV has been accepted in appeal. However, in the assessment order the A.O. did not accept this claim of the assessee on the ground that for the assessment years 2001-02 to 2005-06 the department had gone in appeal before the Hon’ble High Court against the decisions of Hon’ble ITAT, Kolkata in this matter. Thus the A.O. disallowed an amount of Rs.l,35,87,876/- as excess depreciation claimed.”

3.1. On appeal ld. CIT(A ) after taking into consideration of the various documents filed by assessee before him and following the decisions of the ITAT, Kolkata from 2001-02 to 2005-06 deleted the disallowance of Rs.1,35,87,876/- made by AO.

6.1. It is further observed that the filing of appeal before the Hon’ble High Court against the decision of this Tribunal for A.Yrs.2001-02 to 2005-06 will not have any effect since the Hon’ble High Court has neither set aside the orders of the Tribunal nor granted any stay.

5.1. Respectfully following the same we dismiss the appeal of the revenue.

6. In the result the appeal of the revenue is dismissed.

Order pronounced in the court on 12.12.2011.

                                         Sd/-                                                         Sd/-

                              N.Vijayakumaran,                                          C.D.Rao,

                              Judicial Member                                   Accountant Member.

Date: 12.12.2011.

Order pronounced by

                                 Sd/-                                                                  Sd/-

                               (MS)                                                                (CDR)

                                 JM                                                                    AM

R.G.(.P.S.)

Copy of the order forwarded to:

1. Kesoram Industries Ltd., 9/1, R.N.Mukherjee Road, Kolkata-700001.

2 The D.C.I.T., Circle-5, Kolkata.

3. The CIT, 4. The CIT(A)-VI, Kolkata.

5. DR, Kolkata Benches, Kolkata

True Copy,

                                                                                        By order,

Deputy /Asst. Registrar, ITAT, Kolkata Benches