TMI Blog2016 (8) TMI 1555X X X X Extracts X X X X X X X X Extracts X X X X ..... at the hoardings on which the assessee claimed depreciation at 100% were structurally sound so as to be regarded any building. The decision in the case of Asian Advertising [ 2016 (5) TMI 158 - ITAT MUMBAI] is a case where the question was whether hoardings constitute building or plant. In our view this cannot be said to be a precedent in so far as the issue involved in the present case is concerned. We are also of the view that the CIT in exercise of his powers u/s. 263 of the Act has to come to a definite conclusion as to how the order of the AO was erroneous. He cannot set aside the order of AO and direct an enquiry on the question whether hoarding structure would be in the nature of purely temporary erection - CIT could invoke the jurisdiction u/s. 263 of the Act only on a finding that hoardings were not purely temporary erection and such finding has to be sustainable in law. It is only then the CIT can make out a case that order of AO was erroneous. In the present case the CIT has not given such a finding. Even on this basis, we are of the view that order u/s. 263 of the Act cannot be sustained. Appeal of assessee allowed. - I.T.A. No. 2044/Kol/2013 - - - Dated:- 10-8-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rroneous and prejudicial to the interest of revenue. I, therefore, propose to review the assessment made by the Assessing Officer and, therefore, your case is accordingly fixed for hearing at 03:00 P.M. on 26-02-2013 in my office chamber in Room No. 6/4, Aayakar Bhavan, P-7, Chowringhee Square, Kolkata-69. In the case you find it inconvenient to attend the hearing, you may furnish your written submission on or before 26-02-2013. 5. Accordingly the show cause notice u/s. 263 dated 18.02.2013 was issued to the assessee by CIT. In reply to the aforesaid show-cause notice, the assessee pointed out that the question as to whether hoarding structures of the assessee was purely temporary erection for the purpose of claiming 100% depreciation or not had come for consideration in A.Y. 1985-86 and after considering all the facts and evidence a finding was given in the said assessment order that hoarding structures were of temporary nature and it was further held that 100% depreciation was to be allowed on the same. A copy of the assessment order 1985-86 was also filed by the assessee before CIT. The assessee further pointed out that even in the earlier assessment years orders of CIT(A) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e as to whether the hoardings are of temporary structure or not was considered way back in A.Y. 1985-86. He brought to our notice that the issue as to whether the hoardings are temporary structure or not came for consideration before the Hon'ble ITAT in A.Y. 2004-05 and 2005-06 in ITA Nos. 1054 1055/Kol/2008 and this tribunal vide its order dated 30.06.2009 held as follows:- 15. After hearing both the sides we find that the revenue has not brought anything on the records that the hoardings are having longer life then claimed by the assessee and giving benefit of enduring nature. The assessee's claim is that these hoardings are having life of one to two months and less than a year. These hoardings are put to use for less than 180 days. The AO has not brought any evidence regarding the durability of the hoardings. The AO's observations appears to be a guess work in respect of quality of structure of the hoards. The assessee has asked for 100% depreciation on the structure used for less than 180 days on account of non durability of its structures. The CIT(A)'s order get support form the ITAT, Jabalpur Bench decision relied upon. In that case the Hon'ble ITAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aforesaid contention the ld. Counsel for the assessee filed before us a copy of the grounds of appeal filed by the revenue before the Hon'ble Calcutta High Court in ITA No. 334 of 2009. The ld. Counsel for the assessee further pointed out that the revenue has not raised this issue in any other assessment years namely A.Y. 2007-08 and 2008-09. So far as A.Y. 2009-10 is concerned in ITA No. 1392/Kol/2012 similar issue was raised by the revenue before the Tribunal and by order dated 10.03.2015 in ITA No. 1392/Kol/2015, the Tribunal dismissed the ground of appeal of the revenue. It was submitted by him that the AO after taking due notice of the history of the claim for deduction at 100% the hoardings has rightly allowed the deduction claimed by the assessee. He placed reliance on the decision of the Hon'ble Calcutta High Court in the case of Russel Properties Ltd. Vs. A. Chowdhury 109 ITR 229 wherein the Hon'ble Calcutta High Court held that whether the AO follows the tribunal decision while passing an order of assessment the CIT u/s. 263 of the Act cannot revise such order on the ground of the decision of the Tribunal was challenged by the revenue before the appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the case of Russel Properties Pvt. Ltd. (supra) will be applicable and the CIT could not have invoked his jurisdiction u/s. 263 of the Act. The facts of the case before the Hon'ble Calcutta High Court was the Tribunal in the earlier AY of an Assessee held that maintenance and service charges received by an Assessee were assessable under the head business and not assessable under the head property . Following the decision of the Tribunal, the ITO in a subsequent AY proceeded to assess such income under the head business . The CIT in exercise of his powers u/s. 263 of the Act felt that such income should have been assessed to tax under the head property as in respect of the prior years' findings reference application was pending before the High Court. The Hon'ble High Court had to decide as to whether in those circumstances, can it be said that the ITO who had accepted the Tribunal's decision as correct and applied that decision to the facts of this case acted erroneously and his such action caused prejudice to the interests of the Revenue. The Hon'ble High Court held that as a matter of fact whenever there is a decision of the higher appellate auth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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