ACIT, Circle-1(1), Tirupathi V. M/s. B.V.Reddy Transports Pvt.Ltd., Chttoor District

ITA 1056/HYD/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1435 (ITAT-HYDERABAD)
• Duration Of Justice: 6 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 09-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M H NAIK
• Assessee Lawyers: S RAMA RAO
• Keywords: Deemed to accrue or arise in india; Additional evidence
• Section: 115JB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA NO.1056/HYD/2012 : ASSESSMENT YEAR 2009-2010 ASST. COMMISSIONER OF INCOME- TAX, CIRCLE 1(1), TIRUPATI V/S M/S. B.V.REDDY TRANSPORTS P. LTD., CHITTOOR. (PAN AAACB 9109 L) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI M.H.NAIK DR RESPONDENT BY : SHRI S.RAMA RAO DATE OF HEARING 23.01.2013 DATE OF PRONOUNCEMENT 23.01.2013 O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) GUNTUR DAT ED 9.3.2012, FOR THE ASSESSMENT YEAR 2009-2010. 2. REVENUE RAISED THE FOLLOWING GROUNDS- 1. THE ORDER OF THE LEARNED. CIT(A) IS ERRONEOUS B OTH IN LAW AND ON FACTS. 2) THE LEARNED. CIT(A) ERRED IN HOLDING THAT THE BO OK PROFIT U/S. 115JB IS RS.NIL LAND CONSEQUENTLY THERE IS NO TAX PAYABLE U/S. 115JB. 3) THE LEARNED. CIT(A) OUGHT TO HAVE SEEN THAT NO E VIDENCE HAS BEEN FURNISHED BY THE ASSESSEE REGARDING THE PA SSING OF AN ORDER BY THE BOARD FOR INDUSTRIAL LAND FINANCIAL RECONSTRUCTIONS TO THE EFFECT THAT THE ASSESSEE IS A SICK INDUSTRIAL COMPANY AND HENCE THE PROVISIONS OF CLAU SE (VII) OF EXPLANATION 1 TO SECTION 115JB(2) ARE NOT APPLIC ABLE. 4) THE LEARNED. CIT(A) ERRED IN ALLOWING ADDITIONAL EVIDENCE BY THE APPLICANT AS PER THE PROVISIONS OF RULE 46A OF I.T.RULES. ITA NO.1056/HYD/12 M/S.B.V. REDDY TRANSPORTS PVT. LTD., CHITTOOR 2 5) THE ACTION OF THE CIT(A) IS UNILATERAL AS NO OPP ORTUNITY WAS GIVEN TO THE ASSESSING OFFICER ON THE SUBMISSIONS M ADE BY THE APPLICANT. 3. WE HEARD BOTH SIDES AND PERUSED THE ORDERS OF T HE LOWER AUTHORITIES AND OTHER MATERIAL ON RECORD. IN THIS CASE, THE RETURN OF THE ASSESSEE WAS PROCESSED UNDER S.143(1) OF THE INCOME -TAX ACT, VIDE INTIMATION DATED 7.9.2010, WHEREIN THE ASSESSING OF FICER CONSIDERED THE DEEMED INCOME UNDER S.115JB OF THE ACT AT RS.69,19, 580, BEING NET PROFIT AS PER THE PROFIT & LOSS ACCOUNT, AS AGAINST THE RETURNED LOSS. THE ASSESSING OFFICER MADE CERTAIN ADJUSTMENTS, WHILE D ETERMINING THE INCOME, WHILE PASSING THE INTIMATION UNDER S.143(1) OF THE ACT. THE ISSUE DEALT WITH BY THE ASSESSING OFFICER FOR MAKING THE ADJUSTMENTS IS IN THE NATURE OF DEBATABLE ISSUES, AND IT CANNOT BE DEALT WITH BY THE ASSESSING OFFICER UNDER S.143(1) OF THE ACT. BEING SO, THE C IT(A) OBSERVED THAT AS SEEN FROM THE PROVISIONS OF S.115JB(2) WITH PARTICU LAR REFERENCE TO EXPLANATION (1) TO S.115JB(2), THE ASSESSEE BEING A SICK COMPANY IN THE YEAR UNDER CONSIDERATION AND THE NET WORTH HAVING B ECOME NEGATIVE, THE PROVISIONS OF S.115JB ARE NOT APPLICABLE, AND ACCOR DINGLY ALLOWED THE APPEAL OF THE ASSESSEE. WE DO NOT FIND ANY INFIRM ITY IN THE ORDER OF THE CIT(A) IN THIS BEHALF, AND IN ANY EVENT, THE ASSES SING OFFICER CANNOT TAKE UP THE ISSUES WHICH ARE DEBATABLE WHILE DEALING WIT H THE RETURNS IN TERMS OF S.143(1) OF THE ACT. IN THIS VIEW OF THE MATTE R, WE DO NOT FIND ANY MERIT IN THE GROUNDS RAISED BY THE REVENUE IN THIS APPEAL, WHICH ARE ACCORDINGLY REJECTED. 4. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 23.01.2013 SD/ - ( SAKTIJIT DEY ) SD/ - ( CHANDRA POOJARI ) JUDICIAL MEMBER. ACCOUNTANT MEMBER. DT/- 23 RD JANUARY, 2013 ITA NO.1056/HYD/12 M/S.B.V. REDDY TRANSPORTS PVT. LTD., CHITTOOR 3 COPY FORWARDED TO: 1. M/S. B.V.REDDY TRANSPORTS P. LTD., B.V.REDDY COLONY , CHITTOOR, 2. ASST. COMMISSIONER OF INCOME-TAX CIRCLE 1, TIRUP ATI 3. 4. COMMISSIONER OF INCOME - TAX(APPEALS) GUNTUR COMMISSIONER OF INCOME-TAX, TIRUPATI 5 . THE DEPARTMENTAL REPRESENTATIVE, ITAT HYDERABAD B.V.S.