DCIT, Hyderabad v. State Bank Of Hyderabad, Hyderabad

ITA 793/HYD/2007 | 2001-2002
Pronouncement Date: 30-09-2010 | Result: Dismissed

Appeal Details

RSA Number 79322514 RSA 2007
Assessee PAN AADCS4009H
Bench Hyderabad
Appeal Number ITA 793/HYD/2007
Duration Of Justice 3 year(s) 3 month(s) 1 day(s)
Appellant DCIT, Hyderabad
Respondent State Bank Of Hyderabad, Hyderabad
Appeal Type Income Tax Appeal
Pronouncement Date 30-09-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 30-09-2010
Assessment Year 2001-2002
Appeal Filed On 28-06-2007
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B' HYDERABAD BEFORE SHRI N.R.S. GANESAN JUDICIAL MEMBER AND SHRI AKBER BASHA ACCOUNTANT MEMEBR I.T.A NO. 792/HYD/2007 ASSESSMENT YEAR 2001-02 STATE BANK OF HYDERABAD HYDERABAD PAN: AADCS4009H VS. DCIT CIRCLE 3(2) HYDERABAD APPELLANT RESPONDENT I.T.A NO. 793/HYD/2007 ASSESSMENT YEAR 2001-02 DCIT CIRCLE 3(2) HYDERABAD VS. STATE BANK OF HYDERABAD HYDERABAD PAN: AADCS4009H APPELLANT RESPONDENT ASSESSEE BY: SHRI PAVAN KUMAR REVENUE BY: SMT. VASUNDRA SINHA O R D E R PER NRS GANESAN JM: BOTH THE APPEALS OF THE ASSESSEE AND THE REVENUE A RE DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A)-IV HYDERABAD DATED 30.4.2007 AND PERTAINS TO ASSESSMENT YEAR 200 1-02. 2. LET US FIRST TAKE THE DEPARTMENTAL APPEAL IN I.T .A. NO. 793/HYD/2007. THE LEARNED DR SMT. VASUNDRA SINHA V ERY FAIRLY SUBMITTED THAT THE DEPARTMENT HAS NOT OBTAIN ED THE CLEARANCE FROM THE COD FOR PROSECUTING THE APPEAL. IN VIEW OF THE ABOVE SUBMISSION THE REVENUE CANNOT PROSECUTE T HE APPEAL BEFORE THIS TRIBUNAL. THEREFORE THE APPEAL OF THE REVENUE IS DISMISSED FOR WANT OF COD CLEARANCE. HOWEVER WE M AKE IT VERY CLEAR THAT IT IS OPEN TO THE DEPARTMENT TO MOVE THI S TRIBUNAL TO RESTORE THE APPEAL ON FILE IN CASE THEY ARE ABLE TO OBTAIN I.T.A NOS. 792 & 793 /HYD/2007 M/S. STATE BANK OF HYDERABAD ================= 2 CLEARANCE FROM THE COD. WITH THE ABOVE OBSERVATION S THE APPEAL OF THE REVENUE IN I.T.A. NO. 793/HYD/2007 IS DISMISSED. 3. NOW COMING TO THE ASSESSEE'S APPEAL. THE ASSESS EE HAS OBTAINED THE CLEARANCE FROM THE COD AND A COPY OF T HE PROCEEDINGS OF THE COD IS FILED BEFORE THIS TRIBUNA L. 4. THE FIRST GROUND OF APPEAL IS WITH REGARD TO REO PENING OF ASSESSMENT U/S. 147 OF THE INCOME-TAX ACT 1961. S HRI PAVAN KUMAR THE LEARNED REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS NOT PRESSING THIS GROUND OF AP PEAL. THE LEARNED DR HAS NO OBJECTION TO REJECT THIS GROUND O F APPEAL AS NOT PRESSED. ACCORDINGLY THIS GROUND OF APPEAL RAI SED BY THE ASSESSEE RELATING TO REOPENING OF THE ASSESSMENT U/ S. 147 OF THE ACT IS DISMISSED AS NOT PRESSED. 5. THE NEXT GROUND OF APPEAL IS WITH REGARD TO DISA LLOWANCE OF DEPRECIATION ON THE VALUE OF THE SECURITIES. DU RING THE COURSE OF HEARING THE LEARNED REPRESENTATIVE FOR THE ASSES SEE AND THE LEARNED DR VERY FAIRLY BROUGHT TO THE NOTICE OF THE BENCH THAT AN IDENTICAL ISSUE WAS CONSIDERED BY THE TRIBUNAL IN A SSESSEE'S OWN CASE FOR THE A.Y. 2003-04 IN I.T.A. NO. 1232/HYD/20 06 DATED 28.11.2008. THIS TRIBUNAL AFTER CONSIDERING THE VA RIOUS CASE LAWS ON THE SUBJECT FOUND THAT THE ASSESSEE IS ENTI TLED FOR DEPRECIATION. 6. WE HAVE ALSO CAREFULLY GONE THROUGH THE ORDER OF THIS TRIBUNAL DATED 28.11.2008 WHERE ONE OF US THE JUDI CIAL MEMBER IS A PARTY TO THE ORDER OF THIS TRIBUNAL. SINCE FACTS ARE IDENTICAL TO THAT OF THE A.Y. 2003-04 BY FOLLOWING THE ORDER OF THIS TRIBUNAL DATED 28.11.208 AND FOR THE REASONS S TATED THEREIN WE HOLD THAT THE ASSESSEE IS ENTITLED FOR DEPRECIATION. I.T.A NOS. 792 & 793 /HYD/2007 M/S. STATE BANK OF HYDERABAD ================= 3 7. THE NEXT ISSUE ARISES FOR CONSIDERATION IS DISAL LOWANCE OF LEASE EQUALISATION CHARGES OF RS.5.68 LAKHS. SHRI PAVAN KUMAR THE LEARNED REPRESENTATIVE FOR THE ASSESSEE SUBMITT ED THAT THE VERY SAME ISSUE WAS CONSIDERED BY THIS TRIBUNAL IN ASSESSEE'S OWN CASE FOR A.Y. 2003-04 IN I.T.A. NO. 1232/HYD/20 06 DATED 28.11.2008. THIS TRIBUNAL FOUND THAT UNDER NO CIRC UMSTANCES THE INCOME IN EXCESS OF MONTHLY LEASE INSTALMENTS C AN BE SAID TO HAVE ACCRUED TO THE ASSESSEE. ACCORDINGLY THE ASSESSING OFFICER WAS DIRECTED TO TAX ONLY THE INCOME WHICH A CCRUED TO THE ASSESSEE DURING THE ASSESSMENT YEAR UNDER CONSIDERA TION BY WAY OF MONTHLY INSTALMENTS. ACCORDING TO THE LEARN ED REPRESENTATIVE FOR THE ASSESSEE THIS ISSUE IS ALSO COVERED IN FAVOUR OF THE ASSESSEE BY THE ORDER DATED 28.11.200 8. 8. ON THE CONTRARY SMT. VASUNDRA SINHA THE LEARNE D DR SUBMITTED THAT THE FACTS ARE ENTIRELY DIFFERENT FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. REFERRING TO THE ORDER O F THE CIT(A) THE LEARNED DR POINTED OUT THAT THE ASSESSEE HAS NO T FURNISHED ANY INFORMATION WHICH RELATES TO LEASE EQUALISATION CHARGES. MOREOVER NO MATERIAL WAS PRODUCED BEFORE THE CIT(A ) ALSO. ACCORDING TO THE LEARNED DR THE ASSESSEE HAS RECEIV ED LEASE INCOME OF RS.1 52 60 000. HOWEVER WHAT WAS OFFERE D BY THE ASSESSEE FOR TAXATION IS RS.1 46 92 000 AFTER SETTI NG OFF OF THE LEASE EQUALISATION CHARGES OF RS.5 68 000. IN THE ABSENCE OF ANY MATERIAL ON RECORD ACCORDING TO THE LEARNED DR THE DECISION OF THIS TRIBUNAL IN THE CASE OF DCIT VS. N AGARJUNA INVESTMENT TRUST LTD. 65 ITD 17 WOULD BE APPLICABL E TO THE FACTS OF THE CASE. 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL ON RECORD. WE HAVE A LSO CAREFULLY GONE THROUGH THE ORDER OF THIS TRIBUNAL IN ASSESSEE 'S OWN CASE FOR A.Y. 2003-04. FROM THE ORDER OF THE LOWER AUTH ORITY IT I.T.A NOS. 792 & 793 /HYD/2007 M/S. STATE BANK OF HYDERABAD ================= 4 APPEARS THAT THE ASSESSEE HAS RECEIVED GROSS LEASE INCOME OF RS.1 52 60 000. AFTER SETTING OFF OF LEASE EQUALIS ATION CHARGES OF RS.5 68 000 THE ASSESSEE HAS OFFERED LEASE INCOME O F RS.1 46 92 000 FOR TAXATION. THE QUESTION ARISES F OR CONSIDERATION IS WHETHER THE LEASE EQUALISATION CHA RGES OF RS.5 68 000 HAS TO BE ALLOWED AS DEDUCTION AS CLAIM ED BY THE ASSESSEE OR NOT. AS POINTED OUT BY THE LEARNED REP RESENTATIVE FOR THE ASSESSEE THIS ISSUE WAS CONSIDERED BY THIS TRIBUNAL IN ASSESSEE'S OWN CASE FOR A.Y. 2003-04 ELABORATELY. FOR THE A.Y. 2003-04 ALSO THE ASSESSEE WAS IN RECEIPT OF GROSS L EASE INCOME OF RS.1 52 60 000. AFTER SETTING OFF OF LEASE EQUA LISATION CHARGES OF RS.73 62 000 THE ASSESSEE HAS OFFERED LEASE INCO ME OF RS.78 98 000 FOR TAXATION. AFTER CONSIDERING THE D ECISION OF THIS TRIBUNAL IN THE CASE OF NAGARJUNA INVESTMENT TRUST LTD. (SUPRA) AND IN THE CASE OF CHANDANA LEASEFIN FINANCE LTD. THIS TRIBUNAL FOUND THAT ONLY INCOME ACCRUED TO THE ASSE SSEE IN THE RELEVANT YEAR HAS TO BE BROUGHT FOR TAXATION. THIS TRIBUNAL FURTHER FOUND THAT ONLY MONTHLY INSTALMENTS SPECIFI ED IN THE LEASE AGREEMENT CAN BE SAID TO HAVE ACCRUED TO THE ASSESSEE. ACCORDINGLY THE TRIBUNAL DIRECTED THE ASSESSING OFF ICER TO TAX ONLY THE INCOME WHICH WAS ACCRUED TO THE ASSESSEE B Y WAY OF MONTHLY INSTALMENTS. IN VIEW OF THE ABOVE DECISION OF THE TRIBUNAL IN ASSESSEE'S OWN CASE FOR THE A.Y. 2003-0 4 IN OUR OPINION ONLY THE INCOME WHICH ACCRUED TO THE ASSES SEE DURING THE YEAR UNDER CONSIDERATION BY WAY OF MONTHLY INST ALMENTS HAS TO BE TAXED UNDER THE ACT. ACCORDINGLY BY FOLLOWIN G THE ORDER OF THIS TRIBUNAL IN ASSESSEE'S OWN CASE FOR THE A.Y. 2 003-04 AND FOR THE REASONS STATED THEREIN WE DIRECT THE ASSES SING OFFICER TO TAX ONLY THE INCOME WHICH ACCRUED TO THE ASSESSEE D URING THE YEAR UNDER CONSIDERATION BY WAY OF MONTHLY INSTALME NTS. 10. THE ASSESSEE HAS RAISED ONE MORE GROUND WITH RE GARD TO ADDITION OF RS.40 550 FOR DELAY IN PAYMENT OF TDS. DURING THE I.T.A NOS. 792 & 793 /HYD/2007 M/S. STATE BANK OF HYDERABAD ================= 5 COURSE OF HEARING SHRI PAVAN KUMAR THE LEARNED REP RESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE COD CLEARANCE W AS NOT GIVEN FOR THIS ISSUE. ACCORDINGLY THE ASSESSEE IS NOT PRESSING THIS ISSUE. 11. IN VIEW OF THE ABOVE SUBMISSION OF THE LEARNED REPRESENTATIVE FOR THE ASSESSEE THE GROUND RELATIN G TO ADDITION OF RS.40 550 IS DISMISSED AS NOT PRESSED. 12. IN THE RESULT THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED AND THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30TH SEPTEMBER 2010. SD/- (AKBER BASHA) ACCOUNTANT MEMBER SD/- (N.R.S. GANESAN) JUDICIAL MEMBER HYDERABAD DATED 30TH SEPTEMBER 2010 TPRAO COPY FORWARDED TO: 1. M/S. SATE BANK OF HYDERABAD ACCOUNTS & SERVICES DEPT. HYBANK TOWERS HEAD OFFICE HYDERABAD GUNFOUNDRY HYDERABAD-500 001. 2. THE DCIT CIRCLE 3(2) AAYAKAR BHAVAN BASHEERBA GH HYDERABAD. 3. THE CIT(A)-IV HYDERABAD 4 THE CIT A.P.-III HYDERABAD 5. THE DR B BENCH ITAT HYDERABAD