Buddha Poornima Project Authority, Hyderabad V. Asst. CIT, Circle-10(1), Hyderabad

ITA 545/HYD/2012

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2536 (ITAT-HYDERABAD)
• Duration Of Justice: 5 year(s) 10 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 12-02-2018
• Assessment Year: 2003-2004
• Appeal Filed On: 12-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D PRASADA RAO
• Assessee Lawyers: S RAMA RAO
• Section: 12A; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B, HYDERABAD BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER AND SHRI V. DURGA RAO, JUDICIAL MEMBER I.T.A. NO. 545/HYD/2012 ASSESSMENT YEAR: 2003-04 BUDHA POORNIMA PROJECT AUTHORITY, (PRESENTLY MERGED WITH HYDERABAD METROPOLITAN DEVELOPMENT AUTHORITY) HYDERABAD [PAN: AAALH0058D] VS ASST. COMMISSIONER OF INCOME TAX, CIRCLE-10(1), HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI S. RAMA RAO, AR FOR REVENUE : SHRI D. PRASADA RAO, DR DATE OF HEARING : 12-02-2018 DATE OF PRONOUNCEMENT : 14-02-2018 O R D E R PER B. RAMAKOTAIAH, A.M. : THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF TH E COMMISSIONER OF INCOME TAX (APPEALS)-VI, HYDERABAD, DATED 24-01-2012. 2. BRIEFLY STATED, ASSESSEE WAS AN AUTHORITY WHICH WA S GETTING EXEMPTED EARLIER. CONSEQUENT TO WITHDRAWAL OF PROVISIONS OF SECTION 10(20A) OF THE INCOME TAX ACT [ACT], ASSE SSEE BECOME TAXABLE DURING THE ASSESSMENT YEAR. PROCEEDINGS U/S. 148 WERE INITIATED AND ASSESSEE FILED NIL RETURN ON 29-12-2008. ASSESSING OFFICER (AO) HELD THAT WITH THE DELETION OF SECTION 10(2 0A), I.T.A. NO. 545/HYD/2012 :- 2 - : ASSESSEES INCOME WAS NO LONGER EXEMPT AND BROUGHT TH E EXCESS OF RS. 3,58,35,169/- OF INCOME OVER EXPENDITURE TO TAX. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A) AND SUBMITTED THAT BOTH INCOME AND EXPENDITURE WERE ALREADY BEEN INCLUD ED IN THE HANDS OF HYDERABAD URBAN DEVELOPMENT AUTHORITY [HUDA] AND SO THE SAME CANNOT BE BROUGHT TO TAX AGAIN. IT HAD RAISED ADDITIONAL GROUND THAT INCOME SHOULD HAVE BEEN EXEMPTED U/S. 10( 20). ASSESSEE ALSO FILED CERTAIN REVISED CONTENTION AND AC COUNTS AND LD. CIT(A) REMITTED THE MATTER TO AO. HOWEVER, FOR THE REAS ONS BEST KNOWN TO AO, NO REMAND REPORT HAS BEEN SENT TO CIT(A) AND CIT(A) DECIDED THE ISSUE ON THE BASIS OF INFORMATION AVAILABL E ON RECORD [AS STATED IN PARA 4.3 OF THE ORDER]. IN THE ORDER, LD .CIT(A) NOT ONLY REJECTED THE CONTENTION THAT THE INCOMES WERE TAXED IN THE HANDS OF HUDA BUT ALSO ENHANCED THE RECEIPTS BY AN AMOUNT OF RS . 63,87,494/- AND ALSO REJECTED THE CONTENTION U/S. 10( 20). 3. ASSESSEE IS AGGRIEVED AND HAS RAISED THE FOLLOWI NG GROUNDS: 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS ERRONEOUS BOTH ON FACTS AND IN LAW. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN HOLDING THAT THE INCOME IS ASSESSABLE IN THE ASSESSMENT OF THE A PPELLANT HEREIN WHEN THE SAME WAS ALREADY ASSESSED IN THE HANDS OF HYDER ABAD URBAN DEVELOPMENT AUTHORITY (HUDA). 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE SEEN THAT THE INCOME WAS ALREADY ASSESSED IN THE ASSESSM ENT OF HUDA AND, THEREFORE, IS NOT ASSESSABLE IN THE ASSESSMENT OF T HE APPELLANT HEREIN. 4. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN HOLDING THAT THE GROSS RECEIPTS SHOULD BE ADOPTED AT RS.5,21,50, 452/- AS AGAINST RS.4,57,62,958/- ADOPTED BY THE ASSESSING OFFICER. I.T.A. NO. 545/HYD/2012 :- 3 - : 5. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT ACCEPTING THE CLAIM OF THE APPELLANT THAT THE EXPEN DITURE ALLOWABLE IS RS.1,18,29,253/- AND NOT RS.1,06,24,066/-. 6. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN REJECTING THE CLAIM THAT THE INCOME OF THE APPELLANT IS EXEMPT U/ S 10(20) OF THE I.T. ACT. 7. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE INCOME DETERMINED BY THE ASSESSING OFFICER OF R S.3,58,35,170/- BESIDES ENHANCING THE INCOME BY RS.63,87,494/-. 8. ANY OTHER GROUND THAT MAY BE URGED AT THE TIME O F HEARING. 4. IT WAS THE SUBMISSION THAT MATTER SHOULD HAVE BEEN EXAMINED BY THE AO AND FURTHER SUBMITTED THAT ASSESSEE WA S NO LONGER IN EXISTENCE AND HAS MERGED WITH HMDA [AS PER THE REVISED FORM-36]. ON A SPECIFIC QUERY, WHEN THIS AUTHORITY H AS MERGED WITH HUDA/HMDA, LD. COUNSEL SUBMITTED THAT AUTHORITY GO T MERGED WAY BACK IN THE YEAR 2008 BUT THE ASSESSMENTS W ERE COMPLETED IN THE HANDS OF ERSTWHILE AUTHORITY WITHOUT TAKING INTO CONSIDERATION THE MERGED AUTHORITY. 5. AFTER HEARING THE RIVAL CONTENTIONS, WE ARE OF THE OPINION THAT THE ISSUES IN THIS APPEAL SHOULD BE RE-EXA MINED BY THE AO AFRESH. IT IS THE CONTENTION OF ASSESSEE THAT INCO MES AND EXPENDITURES HAVE BECOME PART OF HUDA/HMDA AND SO THE SAME CANNOT BE BROUGHT TO TAX AGAIN. IT IS SEEN THAT THE MATTER S IN HUDA/HMDA WERE ALSO RESTORED TO THE FILE OF AO FOR FR ESH EXAMINATION, CONSEQUENT TO GRANTING OF REGISTRATION U/S. 12A BY THE ITAT, SEPARATELY IN THEIR ORDER DT. 31-10-2017. T HEREFORE, IN THE INTEREST OF JUSTICE, WE ARE OF THE OPINION THAT CONTENTI ONS IN THIS APPEAL ALSO CAN BE RE-EXAMINED BY THE AO, AS IT INVOL VES VERIFICATION OF FACTUAL MATTERS. MOREOVER, THE LD.CIT(A) HAS ENHANCED THE AMOUNTS WHICH ASSESSEE IS CONTESTING. THI S ASPECT I.T.A. NO. 545/HYD/2012 :- 4 - : ALSO REQUIRES EXAMINATION BY THE AO. SINCE CIT(A) D ID NOT HAVE THE BENEFIT OF REMAND REPORT FROM THE AO, INSPITE OF GIVING VARIOUS NOTICES, WE ARE OF THE OPINION THAT THE ISSUES CAN BE RE-EXAMINED BY THE AO AFRESH. 6. NOT ONLY THAT, IT IS ALSO ON RECORD THAT AO HAS PAS SED THE ORDER ON THE ERSTWHILE AUTHORITY (I.E., BUDHA POOR NIMA PROJECT AUTHORITY), WHEREAS BY THE TIME THE ASSESSMENT ORDER WAS PASSED, THE AUTHORITY GOT MERGED WITH HUDA BY VIRTUE OF THE GOVER NMENT NOTIFICATION. EVEN FORM-35 FILED BEFORE THE LD.CIT(A ) WAS SIGNED BY THE SECRETARY, HMDA, BUT LD.CIT(A) ALSO DID NOT TAKE O N RECORD THE CHANGE OF STATUS AND PASSED THE ORDER IN THE NAME OF BU DHA POORNIMA PROJECT AUTHORITY ONLY. AO IS DIRECTED TO TAK E ON RECORD THE MERGED AUTHORITY TO ASSESS THE ERSTWHILE AUTHORITYS INCOME AND EXPENDITURE IF ANY, ON RECORD AND COMPLETE THE PR OCEEDINGS ACCORDINGLY. ASSESSEE SHOULD BE GIVEN DUE OPPORTUNIT Y AND ITS CONTENTIONS SHOULD BE EXAMINED BOTH ON FACTS AND ON LAW . 7. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH FEBRUARY, 2018 SD/- SD/- (V. DURGA RAO) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEM BER HYDERABAD, DATED 14 TH FEBRUARY, 2018 TNMM I.T.A. NO. 545/HYD/2012 :- 5 - : COPY TO : 1. BUDHA POORNIMA PROJECT AUTHORITY (PRESENTLY MERG ED WITH HYDERABAD METROPOLITAN DEVELOPMENT AUTHORITY), HUDA COMPLEX, TARNAKA, SECUNDERABAD. 2. ASST. COMMISSIONER OF INCOME TAX, CIRCLE-10(1), HYDERABAD. 3. CIT(APPEALS)-VI, HYDERABAD. 4. CIT-V, HYDERABAD. 5. D.R. ITAT, HYDERABAD. 6. GUARD FILE.