Sri Vasireddy Vidya Sagar, Visakhapatnam v. The ITO, Ward-2(1), Guntur

ITA 437/VIZ/2010 | 2005-2006
Pronouncement Date: 09-03-2011 | Result: Dismissed

Appeal Details

RSA Number 43725314 RSA 2010
Bench Visakhapatnam
Appeal Number ITA 437/VIZ/2010
Duration Of Justice 6 month(s) 13 day(s)
Appellant Sri Vasireddy Vidya Sagar, Visakhapatnam
Respondent The ITO, Ward-2(1), Guntur
Appeal Type Income Tax Appeal
Pronouncement Date 09-03-2011
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 09-03-2011
Date Of Final Hearing 27-12-2010
Next Hearing Date 27-12-2010
Assessment Year 2005-2006
Appeal Filed On 26-08-2010
Judgment Text
ITA 437 OF 10 VASIREDDY VIDYA SAGAR GUNTUR IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV JUDICIAL MEMBER AND SHRI BR BASKARAN ACCOUNTANT MEMBER ITA NO. 437 /VIZAG/ 20 10 ASSESSMENT YEAR : 2005 - 06 SRI VASIREDDY VIDY A SAGAR GUNTUR VS. ITO WARD - 2(1) GUNTUR (APPELLANT) (RESPONDENT) PAN NO.AGZPS 2420F APPELLANT BY: SHRI C. KAMESWARA RAO CA RESPONDENT BY: SHRI D.S. SUNDER SINGH DR ORDER PER SHRI S.K. YADAV JUDICIAL MEMBER:- THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) ON FOLLOWING GROUNDS: 1. THE LD. CIT(A) GUNTUR HAS ERRED BOTH ON FACTS AND IN LAW IN REJECTING THE CLAIM OF THE APPELLANT. 2. THE LD. CIT(A) HAS FAILED TO APPRECIATE THE FILING FORM 56F FOR GRANTING ALLOWANCE U/S 10A IS PROCEDURAL AND NON FI LING IS ONLY TECHNICAL. 3. THE LD. CIT(A) OUGHT TO HAVE APPRECIATED THAT THE R ETURN OF INCOME (ROI) ORIGINALLY FILED WILL BE DEFECTIVE WIT HOUT AUDIT REPORT IN FORM 56F. 4. THE LD. CIT(A) FAILED TO APPRECIATE THAT THE ALLOWA NCE CAN BE GRANTED U/S 10A EVEN IN THE PROCEEDINGS U/S 154 OF THE INCOME TAX ACT. 2. THOUGH THE ASSESSEE HAS RAISED THE VARIOUS GROUN DS BUT THEY ALL RELATE TO THE ACTION OF THE A.O. WITHDRAWING THE RELIEF EA RLIER GRANTED TO THE ASSESSEE IN ORIGINAL ASSESSMENT RECTIFICATION U/S 154 OF THE I.T. ACT ON AN APPLICATION OF THE ASSESSEES. 3. THE FACTS BORNE OUT FROM THE RECORD IN THIS REGA RD ARE THAT THE ORIGINAL ASSESSMENT PROCEEDINGS WAS CONCLUDED IN WHICH THE A .O. HAS MADE CERTAIN DISALLOWANCE. THE ASSESSEE HAS MOVED AN APPLICATIO N U/S 154 OF THE ACT STATING THEREIN THAT ASSESSEE IS ENGAGED IN THE BUS INESS OF EXPORT SOFTWARE ITA 437 OF 10 VASIREDDY VIDYA SAGAR GUNTUR 2 I.T. ENABLED SERVICES MAINLY MEDICAL TRANSCRIPTION AND THEREBY GOT REGISTERED UNDER THE SOFTWARE TECHNOLOGY PARK OF INDIA HITECH CITY HYDERABAD FOR WHICH THE FIRM IS ENTITLED FOR EXEMPTION OF INCOME U/S 10A OF THE ACT. THE A.O. EXAMINED THE CLAIM OF THE ASSESSEES BUT BEING NOT CONVINCED WITH THE EXPLANATIONS OF THE ASSESSEES HE REJECTED THE RECT IFICATION APPLICATION. INSTEAD OF RECONFIRMING THE TOTAL INCOME ORIGINALLY COMPUTED BY THE ASSESSING OFFICER IN THE ORIGINAL ASSESSMENT PROCEEDINGS HE MADE CERTAIN OTHER DISALLOWANCE AND RECALCULATED THE TOTAL INCOME AT R S.21 24 088/-. 4. THE ASSESSEE HAS CHALLENGED THIS ORDER OF THE AS SESSING OFFICER BEFORE THE CIT(A) ONLY ON MERIT THAT HE HAS WRONGLY DISALL OWED THE EXEMPTION U/S 10A OF THE ACT. HE DID NOT RAISE ANY GROUND WITH R EGARD TO THE RECALCULATION OF THE TOTAL INCOME OF THE ASSESSEES. THE CIT(A) C ONFIRMED THE ORDER OF THE ASSESSING OFFICER PASSED U/S 154 OF THE ACT DENYING THE GRANT OF EXEMPTION U/S 10A OF THE ACT. 5. NOW THE ASSESSEE IS IN APPEAL BEFORE US AND ASSA ILED THE ORDER OF THE CIT(A) ON MERIT. THOUGH HE HAS NOT RAISED ANY SPEC IFIC GROUND BEFORE THE TRIBUNAL WITH REGARD TO THE WITHDRAWAL OF CERTAIN R ELIEF EARLIER GRANTED BY THE A.O. IN ORIGINAL ASSESSMENT PROCEEDINGS WHILE PASSI NG A RECTIFICATION ORDER YET THE LD. COUNSEL FOR THE ASSESSEE ARGUED THAT U/ S 154 OF THE ACT THE ASSESSING OFFICER SHOULD NOT HAVE WITHDRAWN THE REL IEF EARLIER GRANTED TO THE ASSESSEES AND TO MAKE A RECALCULATION AFTER DISMISS AL OF THE CLAIM OF EXEMPTION OF THE ASSESSEES. DURING THE COURSE OF H EARING THE LD. COUNSEL FOR THE ASSESSEES DID NOT HAVE MUCH OBJECTION WITH REGARD TO THE DENIAL OF EXEMPTION U/S 154 OF THE ACT BUT HE HAS SERIOUS GRI EVANCE WITH REGARD TO THE WITHDRAWAL OF CERTAIN RELIEF ORIGINALLY GRANTED BY THE A.O. IN ASSESSMENT PROCEEDINGS IN RECTIFICATION PROCEEDINGS AND RECAL CULATION OF THE TOTAL INCOME. BEFORE THE CIT(A) HE HAS NOT RAISED ANY S PECIFIC GROUND IN THIS REGARD. NOW THE QUESTION ARISE CAN THE ASSESSEE R AISE SUCH GROUNDS BEFORE THE TRIBUNAL WHICH WERE NOT RAISED BEFORE THE CIT(A )? IN THIS REGARD WE ARE OF THE VIEW THAT THE TRIBUNAL HEARS THE APPEAL AGAI NST THE ORDER OF THE CIT(A). THEREFORE THE GROUNDS RAISED BEFORE IT SH OULD HAVE BEEN EMANATED FROM THE ORDER OF THE CIT(A). ONLY THOSE GROUNDS W HICH ARE IN LEGAL IN NATURE ITA 437 OF 10 VASIREDDY VIDYA SAGAR GUNTUR 3 AND DOES NOT REQUIRE ANY INVESTIGATION OR VERIFICAT ION OF FACTS CAN BE ADMITTED BY THE TRIBUNAL FOR ADJUDICATION THOUGH NO SPECIFIC GROUNDS ON THESE ISSUES WERE RAISED BEFORE THE CIT(A). THE REASON FOR THE ADMISSION OF THESE GROUNDS ARE THAT THESE LEGAL GROUNDS GOES TO THE RO OT OF THE ORIGINAL ASSESSMENT PROCEEDINGS OR TO A PARTICULAR ADDITIONS . WHEREVER A GROUND WHICH HAS NOT BEEN RAISED BEFORE THE CIT(A) IF RAI SED BEFORE THE TRIBUNAL AND IT REQUIRES A VERIFICATION OF FACTS AND ENQUIRY IT SHOULD NOT BE ADMITTED BY THE TRIBUNAL FOR ITS ADJUDICATION BECAUSE THE T RIBUNAL IS HEARING AN APPEAL AGAINST THE ORDER OF THE CIT(A). IF THE TRIBUNAL A DMITS OTHER GROUNDS IT AMOUNT TO A DENIAL OF ONE APPELLATE FORUM TO THE RE SPECTIVE PARTIES WHICH CANNOT BE THE INTENT OF THE LEGISLATURE. THEREFORE WE ARE OF THE VIEW THAT THE ISSUE REGARDING THE WITHDRAWAL OF CERTAIN RELIE F BY THE ASSESSING OFFICER IN RECTIFICATION PROCEEDINGS WAS NEITHER CHALLENGED BE FORE THE CIT(A) NOR A SPECIFIC GROUNDS WAS RAISED BEFORE US. THEREFORE WE ARE OF THE VIEW THAT THE GROUND/ARGUMENTS RELATING TO WITHDRAWAL OF RELIEF B Y THE ASSESSING OFFICER IN RECTIFICATION PROCEEDINGS CANNOT BE ENTERTAINED BY THE TRIBUNAL AT THIS STAGE. 6. SO FAR AS DENIAL OF EXEMPTION U/S 10A OF THE ACT IS CONCERNED THE LD. COUNSEL FOR THE ASSESSEE HAS CANDIDLY ACCEPTED THE VERDICT OF THE CIT(A). THEREFORE WE FIND NO MERIT IN THE ASSESSEES APPEA L AND WE DISMISS THE SAME. 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 9.3.2011 SD/- SD/- (BR BASKARAN) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDI CIAL MEMBER VG/SPS VISAKHAPATNAM DATED 9 TH MARCH 2011 ITA 437 OF 10 VASIREDDY VIDYA SAGAR GUNTUR 4 COPY TO 1 C. KAMESWARA RAO CA 1 - 90 - 17 LIG - 52 M.V.P. COLONY SECTOR - 5 VISAKHAPATNAM-530 017. 2 ITO WARD - 2(1) GUNTUR 3 THE CI T GUNTUR 4 TH E CIT (A) GUNTUR 5 THE DR ITAT VISAKHAPATNAM. 6 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM