ACIT, Cir-16(3), Hyderabad V. M/s. Platina Properties & Projects Ltd, Hyderabad

ITA 587/HYD/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 66158 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-08-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 08-04-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K VISWANATHAM
• Assessee Lawyers: P MURALI MOHAN RAO
• Keywords: Depreciation; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA NO. 587/HYD/2011 ASSESSMENT YEAR 2007-08 THE ACIT CIRCLE-16(3) HYDERABAD VS. M/S. PLATINA PROPERTIES & PROJECTS LTD., HYDERABAD PAN: AACCP8484G APPELLANT RESPONDENT ITA NO. 906/HYD/2011 ASSESSMENT YEAR 2007-08 M/S. PLATINA PROPERTIES & PROJECTS LTD., HYDERABAD PAN: AACCP8484G VS. THE DY. CIT CIRCLE-16(3) HYDERABAD APPELLANT RESPONDENT REVENUE BY: SRI K. VISWANATHAM ASSESSEE BY: SRI P. MURALI MOHAN RAO DATE OF HEARING: 06 . 08 .201 2 DATE OF PRONOUNCEMENT: 10.08.2012 O R D E R PER CHANDRA POOJARI, AM: THESE ARE CROSS APPEAL DIRECTED AGAINST THE ORDER OF THE CIT(A)-V, HYDERABAD DATED 21.1.2011 THE A.Y. 2007-0 8. 2. THE ASSESSEE IS IN APPEAL BEFORE US ON THE ORDER OF THE CIT(A) WITH REGARD TO CONFIRMING THE ACTION OF THE ASSESSI NG OFFICER DISALLOWING CLAIM OF THE ASSESSEE TO SET OFF BROUGH T FORWARD BUSINESS LOSS PERTAINING TO A.Y. 2003-04 AND DEPREC IATION LOSS FOR AYS 2003-04 TO 2005-06. 3. THE REVENUE IS IN APPEAL BEFORE US WITH REGARD TO D ELETION OF ADDITION OF RS. 21,80,880 TOWARDS PURCHASES FROM M/ S. HANSA SURGICAL PVT. LTD. AND ACCORDING TO THE DEPARTMENT THERE IS VIOLATION OF RULE 46A OF INCOME-TAX RULES, 1962. ITA NO. 587/HYD/2011 & ANR. M/S. PLATINA PROPERTIES & PROJECTS LTD. =========================== 2 4. WITH REGARD TO THE ASSESSEE'S APPEAL, THE CIT(A) CO NFIRMED THE DISALLOWANCE CLAIMED BY ASSESSEE TOWARDS SET OF F OF BUSINESS AND DEPRECIATION LOSS RELATING TO EARLIER ASSESSMEN T YEAR ON THE REASON THAT NEITHER IN THE ASSESSMENT ORDER FOR THE RELEVANT ASSESSMENT YEAR NOR IN THE APPEAL ORDER SUCH CARRIE D FORWARD LOSS WAS ALLOWED. MORE SO, THE ASSESSEE HAS ACCEPTED TH OSE ORDERS. AGAINST THIS THE AR SUBMITTED THAT THE FACTS RECORD ED BY THE LOWER AUTHORITIES ARE NOT AT ALL CORRECT AND THERE IS A Q UANTIFICATION OF EARLIER BUSINESS LOSS AS WELL AS DEPRECIATION LOSS WHICH IS TO BE SET OFF IN THE ASSESSMENT YEAR UNDER CONSIDERATION AS P ER LAW. IN SUPPORT OF THIS CLAIM, HE SUBMITTED THAT THE ASSESS ING OFFICER ACTUALLY ALLOWED THE SET OFF OF BUSINESS LOSS AS WE LL AS DEPRECIATION LOSS FOR THE ASSESSMENT YEAR UNDER CONSIDERATION VI DE RECTIFICATION U/S. 154 DATED 25.3.2010 WHICH IS KEPT ON RECORD. 5. THE DR SUBMITTED THAT IF THERE IS A VALID QUANTIFIC ATION OF BROUGHT FORWARD BUSINESS LOSS AND DEPRECIATION LOSS FOR WHICH THE ASSESSEE IS LEGALLY ENTITLED TO SET OFF, THE ISSUE MAY BE REMITTED BACK TO THE ASSESSING OFFICER FOR CONSIDERATION. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATE RIAL ON RECORD. ADMITTEDLY THE ASSESSEE FILED A COPY OF RE CTIFICATION ORDER PASSED U/S. 154 DATED 25.3.2010 FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. BEING SO, IN ALL FAIRNESS THE DETAI LS OF BROUGHT FORWARD BUSINESS LOSS AS WELL AS DEPRECIATION LOSS IS AVAILABLE WITH THE ASSESSING OFFICER AND HE IS REQUIRED TO CONSIDE R THE SAME FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. ACCORDING LY, WE DIRECT THE ASSESSING OFFICER TO PASS NECESSARY ORDER CONSI DERING THE AVAILABLE MATERIAL ON RECORD WITH REFERENCE TO THE BROUGHT FORWARD BUSINESS LOSS AS WELL AS DEPRECIATION LOSS WHICH CO ULD BE LEGALLY SET OFF IN THE ASSESSMENT YEAR UNDER CONSIDERATION. ACCORDINGLY, WE REMIT THE ISSUE BACK TO THE FILE OF THE ASSESSIN G OFFICER TO ITA NO. 587/HYD/2011 & ANR. M/S. PLATINA PROPERTIES & PROJECTS LTD. =========================== 3 DECIDE THE ISSUE IN ACCORDANCE WITH LAW. ASSESSEE' S APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 7. COMING TO THE REVENUE APPEAL, THE GRIEVANCE OF THE DEPARTMENT IS WITH REGARD TO ADMISSION OF ADDITIONA L EVIDENCE UNDER RULE 46A OF INCOME-TAX RULES, 1962. BEFORE T HE CIT(A), THE ASSESSEE FILED COPIES OF INVOICES WITH RESPECT TO P URCHASES FROM M/S. HANSA SURGICAL PVT. LTD., AND THE CIT(A) CALLE D FOR COMMENTS ON THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE ON 10.12.2010 AND 14.12.2010 (PAPER BOOK) WHICH WAS SENT TO THE ASSES SING OFFICER WITH A DIRECTION TO FURNISH THE COMMENTS ON OR BEFO RE 23.12.2010. HOWEVER, NO COMMENTS HAVE BEEN RECEIVED FROM THE AS SESSING OFFICER BY 11.1.2011. BEING SO, THE CIT(A) DECIDED THE ISSUE ON MERIT IN FAVOUR OF THE ASSESSEE. IN OUR OPINION, T HE ASSESSING OFFICER HAS NOT GOT EFFECTIVE OPPORTUNITY OF HEARIN G FROM THE CIT(A) BEFORE THE CIT(A) DECIDED THE ISSUE. IN OUR OPINIO N, IT IS APPROPRIATE TO REMIT THE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER TO CONSIDER ALL THE ADDITIONAL EVIDENCES FI LED BY THE ASSESSEE BEFORE THE CIT(A) AND DECIDE THE ISSUE IN ACCORDANCE WITH LAW. REVENUE APPEAL IS ALLOWED FOR STATISTICAL PUR POSES. 8. IN THE RESULT, REVENUE APPEAL AS WELL AS THE ASSESS EE'S APPEAL ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH AUGUST, 2012. SD/ - (SAKTIJIT DEY) JUDICIAL MEMBER SD/ - (CHANDRA POOJARI) ACCOUNTANT MEMBER HYDERABAD, DATED THE 10 TH AUGUST, 2012 COPY FORWARDED TO: 1. THE ASST. COMMISSIONER OF INCOME - TAX, CIRCLE - 16(3), 6 TH FLOOR, AAYAKAR BHAVAN, BASHEERBAGH, HYDERABAD. 2. THE DY. COMMISSIONER OF INCOME - TAX, CIRCLE - 16(3), HYDERABAD. ITA NO. 587/HYD/2011 & ANR. M/S. PLATINA PROPERTIES & PROJECTS LTD. =========================== 4 2. M/S. PLATINA PROPERTIES & PROJECTS LTD., 5 - 4 - 435, NAMPALLY STATION ROAD, NAMPALLY, HYDERABAD. 3. THE CIT(A) - V, HYDERABAD. 4. THE CIT) - IV , HYDERABAD 5 . THE DR A BENCH, ITAT, HYDERABAD. TPRAO