Srinu Babu Gedela, Hyderabad V. Dy. Commissioner of Income Tax , Circle-8(1), Hyderabad

ITA 511/Hyd/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 7395 (ITAT-HYDERABAD)
• Duration Of Justice: 3 year(s) 5 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-B
• Next Hearing Date: 07-06-2021
• Assessment Year: 2013-2014
• Appeal Filed On: 15-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: T CHAITANYA KUMAR
• Section: 40(a)(ia)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B : HYDERABAD (THROUGH VIDEO CONFERENCE) BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND SHRI LAXMI PRASAD SAHU, ACCOUNTANT MEMBER I.T.A. NO. 511/HYD/2018 ASSESSMENT YEAR: 2013-14 GEDELA SRINU BABU, HYDERABAD [PAN: APEPG7846M] VS DY.COMMISSIONER OF INCOME TAX, CIRCLE-8(1), HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI T.CHAITANYA KUMAR, AR FOR REVENUE : SHRI ROHIT MUJUMDAR, DR DATE OF HEARING : 07-06-2021 DATE OF PRONOUNCEMENT : 17-08-2021 O R D E R PER S.S.GODARA, J.M. : THIS ASSESSEES APPEAL FOR AY.2013-14 ARISES FROM TH E CIT(A)-2, HYDERABADS ORDER DATED 05-12-2017 PASSED IN CASE NO.0815/CIT(A)-2/HYD/2016-17, IN PROCEEDINGS U/S.14 3(3) OF THE INCOME TAX ACT, 1961 [IN SHORT, THE ACT]. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. IT TRANSPIRES AT THE OUTSET THAT THE ASSESSEES INSTANT APPEAL SUFFERS FROM 09 DAYS DELAY IN FILING, STATED TO BE ATTRIBUTABLE TO THE REASON(S) BEYOND HIS CONTROL AS PER CONDONATION PETITION/AFFIDAVIT. ITA NO. 511/HYD/2018 :- 2 -: NO REBUTTAL HAS COME FROM THE DEPARTMENTAL SIDE. THE IMPUGNED DELAY IS CONDONED THEREFORE. 3. THE ASSESSEE HAS RAISED THE FOLLOWING SUBSTANTIVE GROUNDS IN THE INSTANT APPEAL: 1)THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) IS ERRONEOUS, ILLEGAL AND HELD CONTRARY TO THE FACTS OF THE INSTA NT CASE. 2)THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER WITH OUT GIVING PROPER OPPORTUNITY TO THE APPELLANT. 3)THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN UPHOLDING THE ACTION OF THE ASSESSING OFFICER WITH REGARD TO DISALLOWANCE MADE U/S 40(A)(IA) OF I T ACT. 4)THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN D ISALLOWING EXPENDITURE OF RS.81,82,871/- U/S 40(A)(IA) OF THE I.T ACT. WITHOUT CONSIDERING THE APPELLANT SUBMISSIONS. 5)THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN D ISALLOWING SHOOTING EXPENDITURE AN AMOUNT OF RS OF RS 8,61,764/- U/S 40 (A)(IA) OF THE I.T ACT. WITHOUT CONSIDERING THE APPELLANT SUBMISSIONS. 6)THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN I NVOKING THE PROVISIONS OF SECTION 40(A)(IA) WITHOUT CONSIDERING THE SUBMISSIONS OF THE APPELLANT. 7) ANY OTHER GROUNDS/GROUND MAY BE URGED AT THE TIM E OF HEARING. 4. LEARNED COUNSELS SOLE SUBSTANTIVE ARGUMENT DURING THE COURSE OF HEARING IS THAT SECTION 40(A)(IA) 2 ND PROVISO INSERTED IN THE ACT, VIDE FINACE ACT, 2012, W.E.F.01-04-2013 ST IPULATING NON-APPLICATION OF THE IMPUGNED DISALLOWANCE IN CASE THE ASSESSEE IS NOT THE ASSESSEE IN DEFAULT U/S.201(1) OF THE ACT, IS SQUARELY APPLICABLE HEREIN AS THE ASSESSEES PAYEES STAND DULY ASSESSED QUA THE CORRESPONDING RECEIPTS IN THEIR RESPECTIVE RETURNS. THE REVENUES CASE ON THE OTHER HAND IS THAT THIS ITA NO. 511/HYD/2018 :- 3 -: CLINCHING FACT IS YET TO BE VERIFIED AT THE ASSESSING OF FICERS END. 5. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RIVAL PLEADINGS AGAINST AND IN SUPPORT OF THE IMPUGNED SECT ION 40(A)(IA) DISALLOWANCE. IT IS MADE CLEAR THAT ALTHOUGH THE LEGISLATURE HAD INSERTED FOREGOING PROVISO IN THE ACT W.E.F. 01-04-2013, CASE LAW CIT VS. ANSAL LANDMARK TOWNSHI PS (P) LTD., (2015) 377 ITR 635 (DEL) HOLDS IT AS HAVING RETR OSPECTIVE EFFECT BEING CURATIVE IN NATURE. WE THEREFORE DEEM IT APPROPRIATE TO RESTORE THE INSTANT SOLE ISSUE OF SECTION 4 0(A)(IA) DISALLOWANCE BACK TO THE ASSESSING OFFICER FOR HIS NE CESSARY FACTUAL VERIFICATION. LEARNED COUNSEL UNDERTAKES THAT TH E ASSESSEE SHALL FILE ALL THE DETAILED EVIDENCE(S) TO THI S EFFECT BEFORE THE ASSESSING OFFICER IN CONSEQUENTIAL PROCEED INGS. ORDERED ACCORDINGLY. 6. THIS ASSESSEES APPEAL IS TREATED AS ALLOWED FOR S TATISTICAL PURPOSES IN ABOVE TERMS. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH AUGUST, 2021 SD/- SD/- (LAXMI PRASAD SAHU) (S.S.G ODARA) ACCOUNTANT MEMBER JUDICIAL MEM BER HYDERABAD, DATED: 17-08-2021 TNMM ITA NO. 511/HYD/2018 :- 4 -: COPY TO : 1.GEDELA SRINU BABU, C/O.SHRI T.CHAITANYA KUMAR, ADVOCATE, FLAT NO.102, GOWRI APARTMENTS, URDU LANE, HIMAYATNAGAR, HYDERABAD. 2.THE DCIT, CIRCLE-8(1), HYDERABAD. 3.CIT(APPEALS)-2, HYDERABAD. 4.PR.CIT-2, HYDERABAD. 5.D.R. ITAT, HYDERABAD. 6.GUARD FILE.