M/s. VBC Industries Ltd, Hyderabad V. DCIT, Circle -3(3), Hyderabad

ITA 1061/HYD/2011

• Counselvise Citation: 106122514 RSA 2011
• Duration Of Justice: 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-10-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2001-2002
• Appeal Filed On: 02-06-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: M JAGADISH BABU
• Assessee Lawyers: V SIVA KUMAR
• Keywords: Depreciation; Unabsorbed depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B ', HYDERABAD BEFORE SHRI G.C.GUPTA, VICE PRESIDENT AND SHRI AKBER BASHA, ACCOUNTANT MEMBER ITA NO.1061/HYD/11 : A SSTT. YEAR 2001-02 M/S. VBC INDUSTRIES LTD., HYDERABAD ( PAN - AAACV 7352 F) V/S. DY. COMMISSIONER OF INCOME-TAX, CIRCLE 3(3), HYDERABAD (APPELLANT) (RESPONDENT) APPELLANT BY : S HRI V,SIVAKUMAR RESPONDENT BY : S HRI M.JAGADISH BABU DATE OF HEARING 15.9.2011 DATE OF PRONOUNCEMENT 14.10.2011 O R D E R PER G.C.GUPTA, VICE PRESIDENT: THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YE AR 2001-02 IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF I NCOME-TAX PASSED UNDER S.263 OF THE INCOME-TAX ACT, 1961. 2. GROUNDS OF APPEAL OF THE ASSESSEE ARE AS UNDER - 1. THE ORDER OF THE COMMISSIONER OF INCOME-TAX III , HYDERABAD DATED 28.03.2011 PASSED U/S. 263 OF THE ACT IS ERRONEOUS, CONTRARY TO LAW AND FACTS OF THE CASE . 2. (A) THE COMMISSIONER OF INCOME-TAX IS NOT JUSTIF IED IN HOLDING THAT THE APPELLANT IS NOT ENTITLED FOR SET OFF OF BROUGHT FORWARD BUSINESS LOSSES/UNABSORBED DEPRECIATION AGAINST INCOM E FROM CAPITAL GAINS EARNED DURING THE YEAR. (B) THE COMMISSIONER OF INCOM E-TAX OUGHT TO HAVE SEEN THAT THE APPELLANT IS ENTITLED FOR SET OFF OF CAPIT AL GAINS EARNED DURING THE YEAR AGAINST BROUGHT FORWARD LOSSES/DEPRECIATION FROM EARLIER YEARS. 3. FOR ALL OF THE ABOVE AND SUCH OTHER GROUNDS AS M AY BE URGED AT THE TIME OF HEARING IT IS MOST RESPECTFULLY PRAYED THAT THIS HONBLE TRIBUNAL MAY BE PLEASED TO ALLOW THE APPEAL AND CANCEL THE ORDER PASSED BY THE COMMISSIONER OF INCO ME-TAX III, HYDERABAD U/S. 263 OF THE ACT IN THE INTEREST OF JUSTICE. ITA NO.1061/HYD/11 M/S. VBC INDUSTRIES LTD., HYDERABAD 2 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE COMMISSIONER OF INCOME-TAX WHILE PASSING THE ORDER UNDER S.263 OF THE ACT, HAS DEALT WITH CERTAIN ISSUE FOR WHICH SHOW C AUSE NOTICE WAS NOT GIVEN TO THE ASSESSEE. HE SUBMITTED THAT IN ACCORDANCE W ITH THE SCHEME OF THE ACT, OPPORTUNITY OF HEARING SHOULD HAVE BEEN ALLOWE D TO THE ASSESSEE BEFORE PASSING THE ORDER UNDER S.263 OF THE ACT. T HE LEARNED DEPARTMENTAL REPRESENTATIVE COULD NOT CONTROVERT THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND H AVE PERUSED THE ORDER OF THE COMMISSIONER OF INCOME-TAX. WE FIND THAT IN ACCORDANCE WITH THE SCHEME OF THE ACT, ASSESSEE WAS ENTITLED TO OPP ORTUNITY TO REPRESENT ITS CASE ON THE ISSUE ON WHICH THE COMMISSIONER OF INCO ME-TAX PROPOSES TO TAKE ACTION UNDER S.263 OF THE ACT. IN THE FACTS O F THE CASE, WE ARE OF THE VIEW THAT IT SHALL BE IN THE INTERESTS OF JUSTICE T O PROVIDE THE ASSESSEE OPPORTUNITY TO REPRESENT ITS CASE BEFORE THE COMMI SSIONER OF INCOME-TAX ON THE ISSUE RAISED BY THE CIT IN HIS ORDER PASSED UNDER S.263 OF THE ACT. ACCORDINGLY, IMPUGNED ORDER OF THE COMMISSIONER OF INCOME-TAX PASSED UNDER S.263 OF THE ACT IS SET ASIDE AND THE MATTER IS RESTORED TO HIS FILE WITH A DIRECTION TO PASS A DE NOVO ORDER UNDER S.26 3 , IN ACCORDANCE WITH LAW AFTER PROVIDING REASONABLE OPPORTUNITY OF HEARI NG TO THE ASSESSEE. WE DIRECT ACCORDINGLY. 5. IN THE RESULT, APPEAL FO THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 14.10.2011 SD/- SD/- (AKBER BASHA) (G.C.GUPTA) ACCOUNTANT MEMBER VICE PRESIDENT DT/- 14.10.2011 ITA NO.1061/HYD/11 M/S. VBC INDUSTRIES LTD., HYDERABAD 3 COPY FORWARDED TO: 1. M/S. VBC INDUSTRIES LTD., PROGRESSIVE TOWERS, III F LOOR, 6-2-913/914, KHAIRATABAD, HYDERABAD 500 004. 2. DY. INCOME TAX OFFICER, CIRCLE 3(3), HYDERABAD 3. COMMISSIONER OF INCOME TAX III, HYDERABAD 4. DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S.