V.Srinivasa Rao(Indl), Hyderabad v. ACIT, Hyderabad

ITA 120/HYD/2007 | 2001-2002
Pronouncement Date: 05-02-2010 | Result: Partly Allowed

Appeal Details

RSA Number 12022514 RSA 2007
Assessee PAN ABJPV4744Q
Bench Hyderabad
Appeal Number ITA 120/HYD/2007
Duration Of Justice 3 year(s) 7 day(s)
Appellant V.Srinivasa Rao(Indl), Hyderabad
Respondent ACIT, Hyderabad
Appeal Type Income Tax Appeal
Pronouncement Date 05-02-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted B
Tribunal Order Date 05-02-2010
Date Of Final Hearing 13-01-2010
Next Hearing Date 13-01-2010
Assessment Year 2001-2002
Appeal Filed On 29-01-2007
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B' HYDERABAD BEFORE SHRI G.C.GUPTA VICE PRESIDENT AND SHRI AKBER BASHA ACCOUNTANT MEMEBR ITA NO.120/HYD/07 : ASSTT . YEAR 2001-02 ITA NO.121/HYD/07 : ASSTT . YEAR 2002-03 ITA NO.122/HYD/07 : ASSTT . YEAR 2003-04 ITA NO.123/HYD/07 : ASSTT . YEAR 2004-05 SHRI V.SHRINIVASA RAO HYDERABAD ( PAN ABJPV 4744 Q ) V/S. ASST. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-4 HYDERABAD. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.VASANT KUMAR RESPONDENT BY : SMT. VASUNDHARA SINHA O R D E R PER G.C.GUPTA VICE PRESIDENT: THESE FOUR APPEALS OF THE ASSESSEE FOR THE ASSESSMENT YEARS 2001-02 TO 2004-05 ARE DIRECTED AGAINST SIMILAR BUT SEPARATE ORDERS OF THE COMMISSIONER OF INCOME-TAX(APPEALS). SIN CE COMMON ISSUES ARE INVOLVED THESE APPEALS ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. ITA NO.120/HYD/07 : ASSTT. YEAR 2001-02 2. GROUNDS NO.1 AND 2 READ AS UNDER- '1. THE LEARNED CIT(A) ERRED IN LAW AND ON FACT IN NOT ALLOWING THE CLAIM OF THE APPELLANT U/S. 80IB AMOUNTING TO RS.9 17 220/- ON THE ADDITIONAL INCOME ASSESSED ON A RESULT OF SEARC H AS THE ITA NO.120-123/HYD/07 SHRI V.SHRINIVASA RAO HYDERABAD 2 APPELLANT HAD FULFILLED ALL THE CONDITIONS REQUIRE D UNDER LAW AND AS PER THE SETTLED PRINCIPLE IN THE FILING AUD IT REPORT. 2. THE LEARNED CIT(A) OUGHT TO HAVE ASKED THE APPELLA NT TO FILE THE AUDIT REPORT WHEN THE SAME IS ONLY DIRECTORY BU T NOT MANDATORY IF THE SAME WAS NOT AVAILABLE ON RECORD.' 3. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS ENTITLED TO DEDUCTION UNDER S.80IB ON THE AMO UNT OF ADDITIONAL INCOME ASSESSED AS A RESULT OF SEARCH PROCEEDINGS CONDUCTED AGAINST THE ASSESSEE. HE SUBMITTED THAT ALTHOUGH THE ASSESSEE DID NOT HAVE ANY MANUFACTURING FACILITY OF ITS OWN IT HAS UTILIZED THE MANUFACTURING FACILITIES OF ITS SISTER CONCERN AND THEREFORE ITS CLAIM FOR DEDUCTION UNDER S.80IB IS VALID. HE RELI ED ON THE DECISION OF THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF SUMAN PAPER AND BOARDS LTD. (314 ITR 119). 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND OPPOSED THE SUBMISSIONS OF THE ASSESSEE. SHE SUBMITTED THAT THE ASSESSEE DID NOT HAVE ANY MANUFACTURING FACILITY OF ITS OWN AND HAS NOT FILED THE AUDIT REPORT UNDER S.44AB OF THE A CT WHICH IS A MANDATORY CONDITION. MOREOVER NO RECORD COULD BE PROD UCED BY THE ASSESSEE IN SUPPORT OF ITS CLAIM FOR DEDUCTION UNDER S.80I B OF THE ACT. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT DEDUCTION UNDER S.80IB COULD BE ALLOWED ON THE ADDITI ONAL INCOME ASSESSED AS A RESULT OF SEARCH PROCEEDINGS ON THE PREMISES OF T HE ASSESSEE. HOWEVER THE ASSESSEE ADMITTEDLY DID NOT HAVE ANY MANUFACTURING FACILITY OF ITS OWN AND HAS ALSO NOT FILE D AUDIT REPORT UNDER S.44AB OF THE ACT. THE CLAIM OF THE ASSESSEE IS THA T IT HAS UTILIZED MANUFACTURING FACILITY OF ITS SISTER CONCERN AND THE SISTER ITA NO.120-123/HYD/07 SHRI V.SHRINIVASA RAO HYDERABAD 3 CONCERN AS WELL AS THE ASSESSEE OPERATE FROM THE SAME BUSINE SS PREMISES. WE FIND THAT THERE IS NO MATERIAL AVAILABLE ON RECORD TO VERIFY WHETHER THE CONDITIONS FOR ALLOWANCE OF DEDUCTIO N UNDER S.80IB OF THE ACT ARE FULFILLED BY THE SISTER CONCERN OF THE A SSESSEE IN THIS CASE. IN THESE FACTS WE CONSIDER IT JUST AND PROPER TO SE T ASIDE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO DECIDE THE SAME DE NOVO AFTER ALLOWING REASONABLE OPPORTUNITY TO THE ASSESSEE AND AFTER VERIFYING WHETHER ALL THE CONDITIONS FOR AL LOWANCE OF DEDUCTION UNDER S.80IB OF THE ACT ARE FULFILLED BY TH E SISTER CONCERN OF THE ASSESSEE IN THIS CASE DURING THE RELEVANT PERIOD. WE DO SO ACCORDINGLY. ITA NO.121/HYD/07 : ASSTT. YEAR 2002-03 6. GROUNDS OF APPEAL NO.1 AND 2 OF THE ASSESSEE READ A S UNDER- '1. THE LEARNED CIT(A) ERRED IN LAW AND ON FAC T IN NOT ALLOWING THE CLAIM OF THE APPELLANT U/S. 80IB AMOUNTING TO RS.9 17 509/- ON THE ADDITIONAL INCOME ASSESSED ON A RESULT OF SEARC H AS THE APPELLANT HAD FULFILLED ALL THE CONDITIONS REQUIRE D UNDER LAW AND AS PER THE SETTLED PRINCIPLE IN THE FILING AUD IT REPORT. 2. THE LEARNED CIT(A) OUGHT TO HAVE ASKED THE AP PELLANT TO FILE THE AUDIT REPORT WHEN THE SAME IS ONLY D IRECTORY BUT NOT MANDATORY IF THE SAME WAS NOT AVAILABLE ON RECORD.' 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. SINCE THE ISSUE INVOLVED IN THE PRESENT APPEAL IS IDENTICAL TO THE ONE CONSIDERED BY US HEREINABOVE FOR THE REASONS DISCUSSED IN THE CONTEXT OF A PPEAL FOR THE ASSESSMENT YEAR 2001-02 WE RESTORE THE ISSUE OF ALLOWABI LITY OF DEDUCTION UNDER S.80IB FOR THE ASSESSMENT YEAR 2002-03 ALSO WITH ITA NO.120-123/HYD/07 SHRI V.SHRINIVASA RAO HYDERABAD 4 DIRECTIONS SIMILAR TO THE ONES AS CONTAINED IN OUR ORDER FOR THE ASSESSMENT YEAR 2001-02 HEREINABOVE. WE DIRECT ACCORDING LY. ITA NO.122/HYD/07 : ASSTT. YEAR 2003-04 8. GROUNDS OF APPEAL NO.1 AND 2 OF THE ASSESSEE READ A S UNDER- '1. THE LEARNED CIT(A) ERRED IN LAW AND ON FAC T IN NOT ALLOWING THE CLAIM OF THE APPELLANT U/S. 80IB AMOUNTING TO RS.4 80 095/- ON THE ADDITIONAL INCOME ASSESSED ON A RESULT OF SEARC H AS THE APPELLANT HAD FULFILLED ALL THE CONDITIONS REQUIRE D UNDER LAW AND AS PER THE SETTLED PRINCIPLE IN THE FILING AUD IT REPORT. 2. THE LEARNED CIT(A) OUGHT TO HAVE ASKED THE AP PELLANT TO FILE THE AUDIT REPORT WHEN THE SAME IS ONLY D IRECTORY BUT NOT MANDATORY IF THE SAME WAS NOT AVAILABLE ON RECORD.' 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. SINCE THE ISSUE INVOLVED IN THE PRESENT APPEAL IS IDENTICAL TO THE ONE CONSIDERED BY US HEREINABOVE FOR THE REASONS DISCUSSED IN THE CONTEXT OF A PPEAL FOR THE ASSESSMENT YEAR 2001-02 WE RESTORE THE ISSUE OF ALLOWABI LITY OF DEDUCTION UNDER S.80IB FOR THE ASSESSMENT YEAR 2003-04 ALSO WITH DIRECTIONS SIMILAR TO THE ONES AS CONTAINED IN OUR ORDER FOR THE ASSESSMENT YEAR 2001-02 HEREINABOVE. WE DIRECT ACCORDI NGLY. 10. GROUND NO.3 OF THE ASSESSEE IN THIS APPEAL READS AS FOLLOWS- '3. THE LEARNED CIT(A) OUGHT TO HAVE DIRECTED THE ASSESSING OFFICER TO ALLOW LOSS OF M/S. CREATIVEE CONTROL SYS TEM RS.1 24 679/- AND M/S. UNITED ELECTRONICS RS.1 41 0 86/-. ITA NO.120-123/HYD/07 SHRI V.SHRINIVASA RAO HYDERABAD 5 11. AT THE TIME OF HEARING THE LEARNED COUNSEL FOR THE ASSESSEE HAS NOT PRESSED THIS GROUND OF APPEAL. IT IS ACCORD INGLY REJECTED. ITA NO.123/HYD/07 : ASSTT. YEAR 2004-05 12. GROUND NO.1 OF THE ASSESSEE IN THIS APPEAL READS AS FOLLOWS- '1. THE LEARNED CIT(A) ERRED IN LAW IN NOT DECIDIN G THE CASE ON THE QUESTION OF JURISDICTION BEFORE DECIDING THE CASE ON MERIT AS NO NOTICE UNDER SECTION 143(2) WAS ISSU ED TO THE APPELLANT BEFORE COMMENCEMENT OF ASSESSMENT PROCEEDING AS PER THE RECORDS OF THE APPELLANT THUS RENDERING THE ORDER A NULLITY. 13. AT THE TIME OF HEARING THE LEARNED COUNSEL FO R THE ASSESSEE HAS NOT PRESSED THIS GROUND OF APPEAL. IT IS ACCOR DINGLY REJECTED. 14. GROUND NO.2 OF THE ASSESSEE IN THIS APPEAL READS AS FOLLOWS- '2. THE LEARNED CIT(A) OUGHT TO HAVE DIRECTED THE ASSESSING OFFICER TO ALLOW LOSS OF M/S. CREATIVE CONTROL SYST EM RS.23 6750/-. 15. AT THE TIME OF HEARING THE LEARNED COUNSEL FO R THE ASSESSEE HAS NOT PRESSED THIS GROUND OF APPEAL. IT IS ACCORD INGLY REJECTED. 16. IN THE RESULT WHILE APPEALS OF THE ASSESSEE FOR THE ASSESSMENT YEARS FOR THE ASSESSMENT YEAR 2001-02 AND 2002-03 ARE ALLOWED FOR STATISTICAL PURPOSES APPEAL FOR THE ASSESSMEN T YEAR 2003- ITA NO.120-123/HYD/07 SHRI V.SHRINIVASA RAO HYDERABAD 6 04 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES AND THE APP EAL FOR THE ASSESSMENT YEAR 2004-05 IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 5TH FEBRUARY 2 010 SD/- SD/- (AKBER BASHA) (G.C.GUPTA) ACCOUNTANT MEMBER VICE PRESIDENT DT/- 5TH FEBRUARY 2010 COPY FORWARDED TO: 1. SHRI V.SHRINIVASA RAO C/O. SHRI B.NARSING RAO & C O. CHARTERED ACCOUNTANTS NO.610 6TH FLOOR BABUKHAN EST ATE BASHEERBAGH HYDERABAD 500 001. 2. ASST COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-4 HYDERABAD. 3. COMMISSIONER OF INCOME-TAX(APPEALS) I HYDERABAD. 4. COMMISSIONER OF INCOME-TAX CENTRAL HYDERABAD 5. THE DEPARTMENTAL REPRESENTATIVE ITAT HYDERABAD. B.V.S.