Smt Laxmikala, Hyderabad V. ITO, Hyderabad

ITA 1138/HYD/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3342 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 5 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-05-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 13-04-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 30-11-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ANIL SARAF
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B', HYDERABAD BEFORE SHRI G.C. GUPTA, VICE PRESIDENT AND SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER I .T.A. NO. 1133/HYD/2009 ASSESSMENT YEAR 2005-06 I .T.A. NO. 1019/HYD/2010 ASSESSMENT YEAR 2006-07 SRI THODUPUNURI MOHAN HYDERABAD PAN: AAOPT4605J VS. INCOME-TAX OFFICER WARD 5(2), HYDERABAD APPELLANT RESPONDENT I .T.A. NO. 1135/HYD/2009 ASSESSMENT YEAR 2005-06 I .T.A. NO. 1021/HYD/2010 ASSESSMENT YEAR 2006-07 SRI THODUPUNURI ANIL HYDERABAD PAN: AAFPT4411M VS. INCOME-TAX OFFICER WARD 5(2), HYDERABAD APPELLANT RESPONDENT I .T.A. NO. 1137/HYD/2009 ASSESSMENT YEAR 2005-06 I .T.A. NO. 1017/HYD/2010 ASSESSMENT YEAR 2006-07 SMT. THODUPUNURI NEELAMANAMMA HYDERABAD PAN: ABSPT3220E VS. INCOME-TAX OFFICER WARD 5(2), HYDERABAD APPELLANT RESPONDENT I .T.A. NO. 1138/HYD/2009 ASSESSMENT YEAR 2005-06 SMT. T. LAXMIKALA HYDERABAD PAN: ABOPT8846L VS. INCOME-TAX OFFICER WARD 5(2), HYDERABAD APPELLANT RESPONDENT I .T.A. NO. 1139/HYD/2009 ASSESSMENT YEAR 2005-06 SMT. T. MADHURI HYDERABAD PAN: ABGPT6770P VS. INCOME-TAX OFFICER WARD 5(2), HYDERABAD APPELLANT RESPONDENT APPELLANT BY: SHRI ANIL SARAF RESPONDENT BY: SHRI K.E. ANIL BABU SRI THODUPUNURI MOHAN & ORS ======================= 2 O R D E R PER BENCH: ALL THESE APPEALS BY VARIOUS ASSESSEES ARE DIRECTE D AGAINST THE SEPARATE ORDERS OF CIT(A)-V, HYDERABAD FOR ASSESSMENT YEARS 2005-06 AND 2006-07. SINCE COMMON ISSUES ARE INVOLVED IN ALL THESE APPEAL, THEY ARE HEARD TO GETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE FIRST COMMON GROUND IN ALL THESE APPEALS IS WITH REGARD TO NON ACCEPTANCE OF VALUATION GIVEN BY THE REGISTERED VALUER WHO VALUED THE COST OF CONSTRUCTION BY APPLY ING THE STATE PUBLIC WORKS DEPARTMENT (SPWD FOR SHORT) RATE INSTE AD OF CENTRAL PUBLIC WORKS DEPARTMENT (CPWD FOR SHORT) RA TE. THE CONTENTION OF THE ASSESSEE HEREIN IS THAT THE SPWD RATE IS TO BE APPLIED INSTEAD OF CPWD RATE OR OTHERWISE IF CPWD R ATE IS APPLIED DEDUCTION OF 15% HAS TO BE GIVEN. THE LEAR NED COUNSEL FOR THE ASSESSEE PLACED RELIANCE ON THE CONSOLIDATE D ORDER OF THIS TRIBUNAL IN I.T.A. NOS. 1134/HYD/09, 1018/HYD/ 2010, 1136/ HYD/2009 AND 1020/HYD/2010 DATED 3 RD SEPTEMBER, 2010. 3. ON THE OTHER HAND, THE LEARNED DR STRONGLY RELIE D ON THE ORDER OF THE CIT(A). 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD ON THE ISSUE. IN OUR OPINION, THE CLAIM OF THE ASSESSEE IS BASED ON THE ORDER OF THIS TRIBUNAL (SU PRA) AND THE SRI THODUPUNURI MOHAN & ORS ======================= 3 TRIBUNAL IS CONSISTENTLY HOLDING THAT SPWD RATE SHO ULD BE APPLIED. IN CASE CPWD RATE IS APPLIED, THE ASSESSE E IS ENTITLED FOR DEDUCTION AT 15%. HOWEVER, THE ORDER OF THE LE ARNED CIT(A) ON THIS ISSUE IS STEREOTYPIC AND VERY CRYPTIC. THE RE IS NO DISCUSSION OR COMPARISON OF SPWD RATE WITH THE CPWD RATE AND THE LEARNED CIT(A) HAS NOT GIVEN DEDUCTION OF 1 5% WHEN CPWD RATE IS APPLIED. IN VIEW OF THIS DISCREPANCY, WE ARE INCLINED TO SET ASIDE THE ORDER OF THE LEARNED CIT( A) ON THIS ISSUE AND REMAND BACK THE ISSUE TO THE FILE OF THE CIT(A) TO CONSIDER THE ORDER OF THE TRIBUNAL CITED SUPRA AND PASS THE ORDER AFRESH IN ACCORDANCE WITH LAW AFTER GIVING A REASONABLE OPPOR TUNITY OF BEING HEARD TO THE ASSESSEE. . 5. THE NEXT COMMON GROUND IN I.T.A. NOS. 1133/HYD/0 9, 1135/HYD/09 AND 1137/HYD/09 IS WITH REGARD TO NON-A CCEPTANCE CONSTRUCTION ACCOUNT SUBMITTED BY THE ASSESSEES DUR ING THE COURSE OF ASSESSMENT PROCEEDINGS. 6. WE HAVE HEARD BOTH THE PARTIES ON THE ISSUE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE MAIN GRIEVAN CE OF THE ASSESSEE IS WITH REGARD TO NON CONSIDERATION OF INC OME GENERATED OUT OF SALE OF OLD DISMANTLED MATERIAL. WE FIND FROM THE ORDERS OF THE LOWER AUTHORITIES THAT THERE IS N O SPECIFIC DISCUSSION ON THIS ISSUE AND NO FINDINGS HAVE BEEN GIVEN BY THE LOWER AUTHORITIES. HENCE WE ARE INCLINED TO SET AS IDE THE ORDER OF THE CIT(A) ON THIS ISSUE AND REMAND BACK THE ISS UE TO THE FILE SRI THODUPUNURI MOHAN & ORS ======================= 4 OF THE LEARNED CIT(A). THE CIT(A) SHALL GIVE SPECI FIC FINDINGS ON THIS ISSUE AND PASS AN ORDER AFRESH ON THIS ISSUE I N ACCORDANCE WITH LAW AFTER GIVING REASONABLE OPPORTUNITY OF BEI NG HEARD TO THE ASSESSEE. 7. THE NEXT COMMON GROUND IN I.T.A. NOS. 1133/HYD/0 9, 1135/HYD/09, 1138/HYD/09 AND 1139/HYD/09 IS WITH RE GARD TO NON-ACCEPTANCE OF CONSTRUCTION EXPENDITURE IN RESPE CT OF PROPERTY AT HANUMAN TEKDI. 8. WE HAVE HEARD BOTH THE PARTIES ON THE ISSUE AND PERUSED THE MATERIAL ON RECORD. AS DISCUSSED IN THE EARLIE R PARAGRAPH, ON THIS ISSUE ALSO THERE IS NO DISCUSSION IN THE OR DER OF THE LEARNED CIT(A). AS SUCH WE ARE UNABLE TO EXPRESS A NY OPINION ON THIS ISSUE. ACCORDINGLY, WE SET ASIDE THE ORDER OF THE CIT(A) ON THIS ISSUE AND REMIT BACK THE ISSUE TO THE FILE OF THE LEARNED CIT(A) TO GIVE SPECIFIC FINDINGS ON THIS ISSUE AND PASS AN APPROPRIATE ORDER AFRESH IN ACCORDANCE WITH LAW. N EEDLESS TO SAY, THE LEARNED COUNSEL FOR THE ASSESSEE SHALL GIV E A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE BEFORE PASSING THE ORDER. 9. THE NEXT GROUND IN I.T.A. NO. 1137/HYD/09 IS WIT H REGARD TO ADDITION OF RS. 2,57,716 AS UNEXPLAINED INVESTME NT. BRIEF FACTS OF THE ISSUE ARE THAT THE ASSESSEE HAS GIVEN A LOAN OF RS.3,40,000 TO HER SONS FIRM BY RAISING LOAN FROM IDBI BANK. ACCORDING TO THE ASSESSEES COUNSEL THE ASSESSEE IS HAVING SRI THODUPUNURI MOHAN & ORS ======================= 5 FIXED DEPOSIT WITH IDBI BANK AND RAISED LOAN AGAINS T THIS FD BY THE ASSESSEE TO GIVE LOAN TO HER SONS FIRM. HOWEV ER, THE ASSESSEE HAS NOT ADDUCED ANY EVIDENCE TO SHOW THAT THIS LOAN WAS TRANSFERRED FROM IDBI BANK TO ASSESSEES SONS FIRM AND THE CLAIM OF THE ASSESSEE WAS DISALLOWED. 10. WE HAVE HEARD BOTH THE PARTIES ON THIS ISSUE. THE ASSESSEES COUNSEL SUBMITTED THAT THE ASSESSEE IS H AVING BANK STATEMENT WHEREIN IT REFLECTED AVAILING OF THE LOAN AGAINST THE FD AND IT CAN BE VERIFIED AT THE END OF THE LOWER AUTH ORITIES. WE ACCEDE TO THE REQUEST OF THE ASSESSEES COUNSEL. A CCORDINGLY, WE SET ASIDE THE ORDER OF THE LEARNED CIT(A) ON THI S ISSUE AND REMIT BACK THE ISSUE TO THE FILE OF THE LEARNED CIT (A). THE CIT(A) SHALL VERIFY THE EVIDENCE ADDUCED BY THE ASS ESSEE AND PASS AN APPROPRIATE ORDER AFRESH IN ACCORDANCE WITH LAW AFTER AFFORDING A REASONABLE OPPORTUNITY OF BEING HEARD T O THE ASSESSEE. 11. IN THE RESULT, ALL THE APPEALS OF THE VARIOUS A SSESSEES ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH MAY, 2011. SD/ - (G.C. GUPTA) VICE PRESIDENT SD/ - (CHANDRA POOJARI) ACCOUNTANT MEMBER HYDERABAD, DATED 12 TH MAY, 2011 TPRAO SRI THODUPUNURI MOHAN & ORS ======================= 6 COPY FORWARDED TO: 1. SRI THODUPUNURI MOHAN, C/O. M/S. VIKRAM & ANIL, CHARTERED ACCOUNTANTS, 15-2-724/B, III FLOOR, KARTI KEYA COMPLEX, OSMAN GUNJ, HYDERABAD-500 012 2. SRI THODUPUNURI ANIL, C/O. M/S. VIKRAM & ANIL, C HARTERED ACCOUNTANTS, 15-2-724/B, III FLOOR, KARTIKEYA COMPL EX, OSMAN GUNJ, HYDERABAD-500 012 3. SMT. THODUPUNURI NEELAMANEMMA, C/O. M/S. VIKRAM & ANIL, CHARTERED ACCOUNTANTS, 15-2-724/B, III FLOOR, KARTIKEYA COMPLEX, OSMAN GUNJ, HYDERABAD-500 012 4. SMT. T. LAXMIKALA, C/O. M/S. VIKRAM & ANIL, CHAR TERED ACCOUNTANTS, 15-2-724/B, III FLOOR, KARTIKEYA COMPL EX, OSMAN GUNJ, HYDERABAD-500 012 5. SMT. T. MADHURI, C/O. M/S. VIKRAM & ANIL, CHARTE RED ACCOUNTANTS, 15-2-724/B, III FLOOR, KARTIKEYA COMPL EX, OSMAN GUNJ, HYDERABAD-500 012 6. THE INCOME-TAX OFFICER, WARD 5(2), HYDERABAD. 7. THE CIT(A)-V, HYDERABAD. 8. THE CIT-IV, HYDERABAD 9. THE DR B BENCH, ITAT, HYDERABAD