DCIT, Bangalore V. M/s Sri. Sivapriya Shelters Pvt. Ltd., Bangalore

ITA 1104/BANG/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1425 (ITAT-BANGALORE)
• Duration Of Justice: 3 year(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 10-06-2019
• Assessment Year: 2005-2006
• Appeal Filed On: 30-05-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR SHANKAR PRASAD
• Assessee Lawyers: K ARAVINDANATH REDDY
• Keywords: Opportunity of being heard; Set aside
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI N.V VASUDEVAN, VICE PRESIDNET AND SHRI B.R BASKARAN, ACCOUNTANT MEMBER ITA NO.1104/BANG/2016 ASSESSMENT YEAR : 2005-06 THE DY. COMMISSIONER OF INCOME-TAX, CIRCLE-6(1)(2), BANGALORE. VS. M/S SRI SIVAPRIYA SHELTERS PVT. LTD., NO.71, II FLOOR, 2 ND CROSS, R.J GARDEN, OUTER RING ROAD, MARATHALLI, BENGALURU. PAN AAICS 3835 L APPELLANT RESPONDENT APPELLANT BY : DR. SHANKAR PRASAD, ADDL. CIT RESPONDENT BY : SHRI K ARAVINDANATH REDDY, C.A DATE OF HEARING : 10.06.2019 DATE OF PRONOUNCEMENT : 10.06.2019 O R D E R PER B.R BASKARAN, ACCOUNTANT MEMBER THE APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER DATED 12/2/2016 PASSED BY LD CIT(A)-6 BANGALORE AND IT RELATES TO ASST. YEAR 2005-06. 2. THE REVENUE IS AGGRIEVED BY THE DECISION OF LD C IT(A) IN GRANTING RELIEF IN RESPECT OF DISALLOWANCE OF PROBA BLE DEVELOPMENT EXPENDITURE OF 115.77 LAKHS. ITA NO.1104/BANG/2016 PAGE 2 OF 5 3. WE HEARD THE PARTIES AND PERUSED THE RECORD. TH IS IS SECOND ROUND OF PROCEEDINGS. THE AO HAS PASSED THE IMPUGNE D ORDER IN PURSUANCE OF ORDER PASSED BY THE ITAT SETTING ASIDE THE MATTER TO HIS FILE. IN THE FIRST ROUND, THE COORDINATE BENCH OF THE TRIBUNAL HAD REMITTED THE MATTER RELATING TO DISALLOWANCE OF CLA IM OF PROBABLE DEVELOPMENT EXPENSES OF RS.115.77 LAKHS TO THE FILE OF THE AO VIDE ITS ORDER DATED 29/6/2012. WE NOTICE THAT THE TRIB UNAL HAD DIRECTED THAT THE DISALLOWANCE HAS TO BE MADE AFTER EXAMINING THE QUESTION AS TO WHETHER THE LIABILITY IS ASCERTAINED ONE AND FURTHER IT IS QUANTIFIED ON A REASONABLE BASIS, SINCE THE AO O R CIT(A) HAD NOT EXAMINED THIS ASPECT. ACCORDINGLY THE MATTER WAS R EMANDED TO THE FILE OF THE AO. 4. CONSEQUENT THERETO, THE AO HAS PASSED THE I MPUGNED ORDER AGAIN CONFIRMING THE ADDITIONS BY OBSERVING THAT TH E ASSESSEE HAS CLAIMED THE EXPENDITURE ONLY IN THE RETURN FILED U/ S 153A OF THE ACT AND NOT IN THE ORIGINAL RETURN. THUS WE NOTICED TH AT THE AO HAS NOT EXAMINED THE QUESTION AS TO WHETHER THE LIABILITY I S ASCERTAINED ONE AND FURTHER IT IS QUANTIFIED ON A REASONABLE BASIS, AS OBSERVED BY THE TRIBUNAL IN THE FIRST ROUND OF PROCEEDINGS. TH E LD CIT(A) HOWEVER ALLOWED THE CLAIM WITH THE OBSERVATIONS THA T THE ABOVE SAID EXPENDITURE WAS ALLOWED IN THE SUCCEEDING YEAR I.E ASST. YEAR 2006- 07. 5. THE ASSESSEE HAS FILED WRITTEN SUBMISSIONS. ON A PERUSAL OF THE SAME, WE NOTICED THAT THE ASSESSEE IS CREATING PROVISION FOR PROBABLE DEVELOPMENT EXPENDITURE EVERY YEAR AND THE SAME IS ITA NO.1104/BANG/2016 PAGE 3 OF 5 REVERSED IN THE SUCCEEDING YEAR. THE FOLLOWING TAB LE EXPLAINS THE SAME. 6. HOWEVER, THE QUESTION THAT IS REQUIRED TO BE CON SIDERED, AS PER THE OBSERVATION MADE BY THE CO-ORDINATE BENCH O F TRIBUNAL IN THE FIRST ROUND OF PROCEEDINGS, IS WHETHER THE LABI ALITY FOR EXPENSES CLAIMED BY THE ASSESSEE IS AN ASCERTAINED LIABILITY AND FURTHER ESTIMATION OF THE SAME IS BEING MADE ON A REASONABL E BASIS. WE NOTICED THAT NEITHER THE AO NOR THE LD CIT(A) HAS E XAMINED THIS ASPECT. UNDER THESE SET OF FACTS, WE ARE OF THE VIE W THAT THIS ISSUE REQUIRES FRESH EXAMINATION AT THE END OF THE LD CIT (A). ACCORDINGLY WE SET ASIDE THE ORDER PASSED BY THE CIT(A) ON THIS ISSUE AND RESTORE THE SAME TO HIS FILE FOR ADJUDICATING THIS ISSUE AFRESH IN THE LIGHT OF OBSERVATIONS MADE BY THE TRIBUNAL IN THE F IRST ROUND OF PROCEEDINGS, AFTER AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ITA NO.1104/BANG/2016 PAGE 4 OF 5 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH JUNE, 2019. SD/ - (N.V VASUDEVAN) VICE PRESIDENT SD/ - (B.R BASKARAN) ACCOUNTANT MEMBER BANGALORE, DATED, 10 TH JUNE, 2019. / VMS / COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3 . THE CIT 4. THE CIT(A) 5. THE DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER A SST. REGISTRAR, ITAT, BANGALORE. ITA NO.1104/BANG/2016 PAGE 5 OF 5 1. DATE OF DICTATION 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO SR.P.S .. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER .. 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S. .. 6. DATE OF UPLOADING THE ORDER ON WEBSITE.. 7. IF NOT UPLOADED, FURNISH THE REASON FOR DOING SO .. 8. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 9. DATE ON WHICH ORDER GOES FOR XEROX & ENDORSEMENT 10. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 11. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER . 12. THE DATE ON WHICH THE FILE GOES TO DISPATCH SEC TION FOR DISPATCH OF THE TRIBUNAL ORDER . 13. DATE OF DESPATCH OF ORDER. ..