Deep Singh Uppal, Hyderabad V. DCIT, Hyderabad

ITA 117/HYD/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 53526 (ITAT-HYDERABAD)
• Duration Of Justice: 6 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-08-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 11-07-2011
• Assessment Year: 2008-2009
• Appeal Filed On: 25-01-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B V PRASAD REDDY
• Assessee Lawyers: S S CHOWDHARY
• Keywords: Additional evidence

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 ITA NO.254/HYD/11 : ASSESSMENT YEAR 2008-09 DY. COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE 7, HYDERABAD V/S. SHRI DEEP SINGH UPPAL, HYDERABAD. ( PAN AAAIPL 9607 P ) (APPELLANT) (RESPONDENT) AND ITA NO.117/HYD/11 : ASSESSMENT YEAR 2008-09 SHRI DEEP SINGH UPPAL, HYDERABAD. ( PAN AAAIPL 9607 P ) V/S. DY. COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE 7, HYDERABAD (APPELLANT) (RESPONDENT) DEPARTMENT BY : SHRI B.V.PRASAD REDDY ASSESSEE BY : SHRI S.S.,CHOWDHARY O R D E R PER G.C.GUPTA, VICE PRESIDENT: THESE CROSS-APPEALS BY THE REVENUE AND THE ASSESS EE FOR THE ASSESSMENT YEAR 2008-09 ARE DIRECTED AGAINST THE OR DER OF THE CIT(A). THESE ARE BEING DISPOSED OFF WITH THIS CONSOLIDATED ORDER . 2. GROUNDS OF APPEAL OF THE REVENUE IN ITS APPEAL ARE AS UNDER- 1. ON THE CIRCUMSTANCES AND FACTS OF THE CASE, THE CIT(APPEALS) ERRED IN ALLOWING THE APPEAL OF THE ASSESSEE. 2. THE LEARNED CIT(APPEALS) OUGHT TO HAVE APPRECIAT ED THE FACT THAT THE ASSESSEE FAILED TO FURNISH THE BOOKS OF AC COUNT AND ITA NO.254 & 117/HYD/11 SHRI DEEP SINGH UPPAL, HYDERABAD. 2 BILLS/VOUCHERS TO SUBSTANTIATE THE EXPENDITURE CLAI MED TOWARDS ADDITION TO COST OF POT OF LAND. 3. THE CIT(A) IS NOT CORRECT IN NOT PROVIDING THE A DDITIONAL EVIDENCES, OBTAINED FROM THE ASSESSEE FOR VERIFICATION OF THE ASSESSING OFFICER, AS THE SAME WAS NOT FURNISHED B Y THE ASSESSEE AND AVAILABLE WITH THE ASSESSING OFFICER A T THE TIME OF THE COMPLETION OF THE ASSESSMENT . WHEREAS SUB-RULE (3) OF RULE 46A CLEARLY SAYS THAT AN OPPORTUNITY MUST BE GIVEN TO THE ASSESSING OFFICER BEFORE TAKING INTO ACCOUNT ANY EV IDENCE PRODUCED BY THE ASSESSEE. 4. THE CIT(A) OUGHT TO HAVE APPRECIATED THE REASONA BLE ESTIMATION OF INCOME @ 40% OF GROSS RECEIPTS OF RS.16,83,815/ - AND ADDITION ON THIS ADDITIONAL RECEIPTS WORKING OUT TO RS.6,73,526/-. 5. THE CIT(A) IN NOT CORRECT IN ALLOWING EXPENDITU RE TO THE ASSESSEE WHO SOLD PLOT OF LAND AND CLAIM ED RS.31,28,220/- TOWARDS DEVELOPM ENT EXPENDITURE AND DECLARED SHORT TERM CAPITAL GAINS. 3. GROUNDS OF APPEAL OF THE ASSESSEE IN HIS APPEAL ARE AS UNDER- 1. THE LEARNED CIT(A) GROSSLY ERRED IN NOT ALLOWIN G 100% OF EXPENDITURE ON COST OF IMPROVEMENT OF LAND, WHEN F ULL DETAILS WERE SUBMITTED. 2. COST OF IMPROVEMENT IS ACTUALLY INCURRED AND ALL OWABLE U/S. 55 OF THE INCOM E TAX ACT. 3. COPIES OF BILLS OF CONTRACTORS WITH DETAILS OF T HE WORK DONE WITH THEIR NAMES AND ADDRESSES, PAN NO. AND ITRS WERE S UBMITTED TO THE LEARNED ASSESSING OFFICER AND THE LEARNED CI T(A) WHICH THE LEARNED ASSESSING OFFICER HAS NOT CONSIDERED A T ALL AND THE LEARNED CIT(A) HAS NOT CONSIDERED FULLY AND ALLOWED ONLY 50% ON ESTIM ATE BASIS WHICH IS BAD IN LAW. 4. YOUR APPELLANT PRAYS FOR ALLOWANCE OF FULL COST OF IMPROVEMENT OF LAND AND CONSTRUCTION BEING ALLOWABLE U/S. 55 OF THE INCOME TAX ACT. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITT ED THAT THE CIT(A) SHOULD HAVE APPRECIATED THAT THE ASSESSEE HA S FAILED TO FURNISH THE BOOKS OF ACCOUNT AND BILLS/VOUCHERS TO SUBSTANTIATE ITS CLAIM OF THE EXPENDITURE TOWARDS ADDITION TO THE COST OF PLOT OF THE LAND. HE SUBMITTED THAT THE ADDITIONAL EVIDENCE WAS SUBMITTED BY THE A SSESSEE BEFORE THE CIT(A) AND IN ACCORDANCE THE RULE 46A(3), THE CIT(A) OUGH T TO HAVE PROVIDED AN ITA NO.254 & 117/HYD/11 SHRI DEEP SINGH UPPAL, HYDERABAD. 3 OPPORTUNITY TO THE ASSESSING OFFICER TO VERIFY THE ADDITIONAL EVIDENCE FURNISHED BY THE ASSESSEE AND TO SUBMIT HIS COMMENT S, BUT NO SUCH OPPORTUNITY WAS ALLOWED TO THE ASSESSING OFFICER BY THE CIT(A). 5. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS PRODUCED HIS BOOKS OF ACCOUNT AND BILLS AND VOU CHERS BEFORE THE ASSESSING OFFICER AND ALL THE SUPPORTING DOCUMENTS IN SUPPORT OF HIS CLAIM FOR COST OF IMPROVEMENT WAS FURNISHED TO THE ASSESSING OFFICER AND THEREFORE, THERE WAS NO VIOLATION OF RULE 46A(3) OF THE INCOME TAX RULES, 1962 IN THIS CASE. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. CONSI DERING THE PLEADINGS OF THE PARTIES, WE ARE OF THE VIEW THAT I T SHALL BE JUSTIFIED TO SET ASIDE THE ISSUE INVOLVED IN THE GROUNDS OF APPEAL O F THE REVENUE AS WELL AS THE ASSESSEE TO THE FILE OF THE ASSESSING OFFICER, WITH A DIRECTION TO FRAME A DE NOVO ASSESSMENT IN ACCORDANCE WITH LAW, AFTER PROV IDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE AND AFTER C ONSIDERING ALL THE EVIDENCE, WHICH MAY BE FURNISHED BY THE ASSESSEE IN SUPPORT OF HIS CLAIM REGARDING THE ALLOWANCE OF EXPENDITURE INCURRED BY IT. THE ASSESSEE SHALL BE AT LIBERTY TO FILE ANY EVIDENCE IN SUPPORT OF HIS C LAIM FOR ALLOWANCE OF EXPENDITURE BEFORE THE ASSESSING OFFICER. WE DIRECT ACCORDINGLY. 7. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE AS WELL AS THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 5.8.2011 SD/- SD/- (CHANDRA POOJARI) (G.C.GUPTA) ACCOUNTANT MEMBER VICE PRESIDENT DT/- 5 TH AUGUST, 2011. ITA NO.254 & 117/HYD/11 SHRI DEEP SINGH UPPAL, HYDERABAD. 4 COPY FORWARDED TO: 1. SHRI DEEP SINGH UPPAL, FLAT NO.A 102, JAYABHERI SILICON COUNTY MADHAPUR, HYDERABAD 500 084. 2. A SSTT . COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE 7, HYDERABAD. 3. COMMISSIONER OF INCOME - TAX(APPEALS) - VII, HYDERABAD 4. COMMISSIONER OF INCOME-TAX, CENTRAL, HYDERABAD 5. THE DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S