M/s Pioneer Builders, Hyderabad V. DCIT, Hyderabad

ITA 189/HYD/2010

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 6218 (ITAT-HYDERABAD)
• Duration Of Justice: 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-11-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 05-02-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AMLAN TRIPATHI
• Keywords: Condonation of delay
• Section: 40A(3)

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.189/HYD/10 : ASSTT . YEAR 2005-06 M/S. PIONEER BUILDERS, HYDERABAD., ( PAN - AACFP 6794 Q ) V/S. DY. COMMISSIONER OF INCOME- TAX CENTRAL CIRCLE -7, HYDERABAD (APPELLANT) (RESPONDENT) AND ITA NO.288/HYD/10 : ASSTT . YEAR 2005-06 DY. COMMISSIONER OF INCOME- TAX CENTRAL CIRCLE -7, HYDERABAD V/S. M/S. PIONEER BUILDERS, HYDERABAD., ( PAN - AACFP 6794 Q ) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI A.SRINIVAS REVENUE BY : SHRI AMLAN TRIPATHI O R D E R PER G.C.GUPTA, VICE PRESIDENT: THESE CROSS APPEALS BY THE ASSESSEE AND REVENUE FOR THE ASSESSMENT YEAR 2005-06 ARE DIRECTED AGAINST THE ORDER O F THE COMMISSIONER OF INCOME-TAX(APPEALS). SINCE COMMON ISSUES AR E INVOLVED, THESE APPEALS ARE BEING DISPOSED OFF WITH THI S CONSOLIDATED ORDER. ITA NO.189 & 288/HYD/10 M/S. PIONEER BUILDERS, HYDERABAD. 2 ASSESSEE'S APPEAL: ITA NO.189/HYD/10 : ASSTT. YEAR 2005-06 2. THIS APPEAL IS BARRED BY LIMITATION BY 23 DAYS. W E HAVE HEARD THE PARTIES ON THE ISSUE OF CONDONATION OR DELAY IN THE FILING OF THE PRESENT APPEAL BEFORE THE TRIBUNAL. IN VIEW OF THE FACTS NARRATED BY THE LEARNED COUNSEL FOR THE ASSESSEE, WE HOLD THAT IT IS A FIT CASE FOR CONDONATION OF DELAY IN FILING THE APPEAL BY TH E ASSESSEE BEFORE THE TRIBUNAL. ACCORDINGLY THE DELAY IN FILING THE PRE SENT APPEAL BEFORE THE TRIBUNAL IS CONDONED. 3. GROUNDS OF APPEAL OF THE ASSESSEE ARE AS UNDER- '1. THE ORDER OF THE ASSESSING OFFICER IS CONTRARY TO THE LAW, FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE A.O. OUGHT TO HAVE ALLOWED THE FINANCE CHARGES/INTEREST FROM THE INCOME ESTIMATED AND OUGH T NOT TO HAVE REJECTED THE CLAIM OF THE ASSESSEE ON T HAT GROUND. 3. THE CIT-APPEALS OUGHT NOT TO HAVE CONFIRMED THE REJECTION OF THE CLAIM BY THE A.O. OF THE FINANCE/CHARGES/INTEREST FROM THE INCOME ESTIMATED. ' 4. THE LEARNED COUNSEL FOR THE ASSESSEE HAS FAIRLY SUBMI TTED THAT THE ISSUE OF ALLOWANCE OF FINANCE CHARGES AND INTERE ST FROM THE INCOME ESTIMATED IS COVERED IN FAVOUR OF THE REVENUE WI TH THE DECISION OF THE HYDERABAD BENCH OF THE TRIBUNAL IN ASSESSE E'S OWN CASE FOR THE ASSESSMENT YEARS 2003-04 AND 2004-05 IN ITA NO.726/HYD/2006 AND ITA NO.59/HYD/2008. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUPPORTED THE CONTENTION O F THE LEARNED COUNSEL FOR THE ASSESSEE. ITA NO.189 & 288/HYD/10 M/S. PIONEER BUILDERS, HYDERABAD. 3 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAVE PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) . WE FIND THAT THE ISSUE INVOLVED IN THE PRESENT APPEAL OF THE A SSESSEE IS COVERED IN FAVOUR OF THE REVENUE WITH THE DECISION OF THE HYDERABAD BENCH OF THE TRIBUNAL IN ASSESSEE'S OWN CASE FOR THE ASSESSMENT YEARS 203-04 AND 2004-05 NOTED ABOVE. WE FIND THAT THE CI T(A) HAS FOLLOWED THE ORDER OF THE TRIBUNAL IN ASSESSEE'S OWN CASE FOR THOSE EARLIER ASSESSMENT YEARS AND HAS DECIDED THE ISSUE AGAINST THE ASSESSEE. WE ARE IN AGREEMENT WITH THE DECISION OF THE COORDINATE BENCH OF THE TRIBUNAL IN ASSESSEE'S OWN CASE FOR THE EARLIE R ASSESSMENT YEARS NOTED ABOVE, AND ACCORDINGLY DECIDE THE ISSU E IN FAVOUR OF THE REVENUE. GROUNDS OF APPEAL OF THE ASSESSEE IN THIS APPEAL ARE ACCORDINGLY REJECTED. REVENUE'S APPEAL: ITA NO.288/HYD/10 : ASSTT. YEAR 2005-06 6. GROUNDS OF APPEAL OF THE REVENUE IN THIS APPEAL ARE AS UNDER- '1. THE CIT(APPEALS) HYDERABAD HAS ERRED IN DELE TING THE ADDITIONS MADE BY THE ASSESSING OFFICER U/S. 40A(3) OF RS.23,72,203/- AND U/S. 40(A) OF RS.15,32,233/-. 2. THE CIT(APPEALS) HAS ERRED IN DELETING THE STATU TORY DISALLOWANCES MADE B Y THE ASSESSING OFFICER U/S. 40A(3) AND 40(A) WHILE ESTI MATING THE INCOME OF THE ASSESSEE. 3. THE CIT(APPEALS) HAS ERRED IN HOLDING THAT THE A SSESSING OFFICER WAS NOT JUSTIFIED IN MAKING FURTHE R DISALLOWANCES U/S.40A(3) AND U/S. 40(A) AFTER ESTIMATIN G THE INCOME OF THE ASSESSEE. 4. THE CIT(APPEALS) HAS ERRED IN DELETING THE STATU TORY DISALLOWANCES MADE BY THE ASSESSING OFFICER U/S. 40A(3) AND 40(A) OF THE I.T. ACT ON THE GROUND THA T AFTER REJECTION OF BOOKS OF ACCOUNT AND ESTIMATIO N OF INCOM E, NO FURTHER DISALLOWANCE CAN BE MADE. ITA NO.189 & 288/HYD/10 M/S. PIONEER BUILDERS, HYDERABAD. 4 7. THE LEARNED COUNSEL OF THE ASSESSEE AT THE OUT SET, SUBMITTED THAT THE ISSUE INVOLVED IN THE ABOVE GROUNDS OF APPEAL OF THE REVENUE IS COVERED IN FAVOUR OF THE ASSESSEE WITH THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN INDWELL CONST RUCTIONS V/S. CIT (232 ITR 776)-AP. THE LEARNED DEPARTMENTAL REPRESEN TATIVE COULD NOT CONTROVERT THIS SUBMISSION OF THE LEARNED COUNSEL FO R THE ASSESSEE. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIN D THAT THE ISSUE OF DISALLOWANCE MADE UNDER S.40A(3) AND S.40(A) O F THE ACT WHILE COMPUTING THE INCOME IS COVERED IN FAVOUR OF THE ASSESSEE WITH THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT CITE D SUPRA. RESPECTFULLY FOLLOWING THE SAME, WE DECIDE THE ISSUE IN F AVOUR OF THE ASSESSEE AND CONFIRM THE ORDER OF THE CIT(A), AND THE GR OUNDS OF APPEAL OF THE REVENUE ARE ACCORDINGLY REJECTED. 8. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE AS WE LL AS THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 12.11.2010 SD/- SD/- (CHANDRA POOJARI) (G.C.GUPTA) ACCOUNTANT MEMBER VICE PRESIDENT DT/- 12 NOVEMBER, 2010 COPY FORWARDED TO: 1. M/S. PIONEER BUILDERS, 8-2-268/A/2, POT NO.552, R OAD NO.3, BANJARA HILLS, HYDERABAD. 2. DY. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE 7, HYDERABAD 3. COMMISSIONER OF INCOME-TAX(APPEALS) I HYDERABAD. ITA NO.189 & 288/HYD/10 M/S. PIONEER BUILDERS, HYDERABAD. 5 4. COMMISSIONER OF INCOME-TAX (CENTRAL) HYDERABAD . 5. DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S.