Appeal details
Counselvise Citation
[2021] 107 COUNSELVISE.COM (IT) 8446 (ITAT-HYDERABAD)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
3 year(s) 3 month(s) 10 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
18-08-2021
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
DB-B
Next Hearing Date
07-04-2021
Assessment Year
2009-2010
Appeal Filed On
08-05-2018
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD B BENCH, HYDERABAD. BEFORE SHRI S.S. GODARA, JUDICIAL MEMBER AND SHRI L . P . SAHU, ACCOUNTANT MEMBER (THROUGH VIRTUAL HEARING) ITA NO. 884 /HYD/20 18 (ASSESSMENT YEAR : 20 09 - 10 ) M/S. LANCO HILLS TECHNOLOGY PARK PVT. LTD., HYDERABAD. PAN AABCL 1228R ..APPELLANT. VS. DY. COMMISSIONER OF INCOME TAX, CIRCLE 16(1), HYDERABAD. ..RESPONDENT. APPELLANT BY : SHRI P. MURALI MOHANA RAO. RESPONDENT BY : SHRI Y.V.S.T. SAI (D.R.) DATE OF HEARING : 07.04. 2021. DATE OF PRONOUNCEMENT : 18 .0 8 .2021. O R D E R PER SHRI S.S. GODARA, J.M. : THIS ASSESSEES APPEAL FOR ASST. YEAR 20 09 - 10 ARISES FROM THE COMMISSIONER OF INCOME TAX (APPEALS) - 4, HYDERABAD S ORDER DT. 22.02. 201 8 PASSED IN CASE NO. 0019/2016 - 17/DCIT, CIRC.16(1)/CIT(A) - 4/HYD/17 - 18 2 ITA NO. 884/HYD/2018 IN PROCEEDINGS UNDER SECTION 143(3) R.W.S 147 OF INCOME TAX ACT, 1961 (THE ACT). HEARD BOTH THE PARTIES . C ASE FILE PERUSED. 2. WE FIND AT THE OUTSET THAT THE FIRST AND FOREMOST ISSUE THAT ARISES FOR OUR APT ADJUDICATION OF CORRECTNESS OF BOTH THE LOWER AUTHORITIES ACTION INVOLVING 148/147 OF THE ACT CONTAINING THE FOLLOWING REOPENIN G REASON(S) : - THE ASSESSEE COMPANY, M/S. LANCO HILLS TECHNOLOGIES PARK PVT. LTD. FURNISHED ITS RETURN OF INCOME FOR THE A.Y. 2009 - 10 ON 29.09.2009 DECLARING INCOME OF RS.14,68,17,832. THE RETURN WAS PROCESSED U/S. 143(1) OF THE ACT ACCEPTING THE INCOME RETURNED. THE CASE WAS TAKEN UP FOR SCRUTINY AND ORDER U/S. 143(3) WAS PASSED ON 29.12.2011 ACCEPTING THE RETURNED INCOME. SUBSEQUENTLY, IT WAS FOUND FORM THE SCHEDULE 5 ENCLOSED TO THE BALANCE SHEET THAT RS.1,65,35,43,402 AS EXPENDITURE DURING CONSTRUCTION PENDING ALLOCATION WHICH INCLUDES RS.2,04,78,120 INCOME TAX ON INTEREST ON DEPOSITS WHICH IS NOT AN ALLOWABLE EXPENDIT URE (WHEN EXPENDITURE IS ALLOCATED). HENCE, THE SAME MAY BE BROUGHT TO TAX. 3. WE NOW ADVERT TO THE BASIC RELEVANT FACTS OF THE CASE. THERE IS HARDLY ANY DISPUTE THAT WE ARE IN ASSESSMENT YEAR 3 ITA NO. 884/HYD/2018 2009 - 10. THE ASSESSING OFFICER HAD COMPLETED HIS 143 (3) ASSESSMENT ON 29.12.2011 FOLLOWED BY HIS 148 NOTICE DT.11.3.2015 ISSUED TO THE ASSESSEE. IT IS THEREFORE CLEAR IN OTHER WORDS THAT THE IMPUGNED REOPENING HAS BEEN TAKEN RECOURSE TO BY THE ASSESSING OFFICER AFTER STATUTORY PERIOD OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR AND THAT TOO, WITHOUT INDICATING IN THE REASONS RECORDED AS TO WHETHER THIS TAX PAYER HAS DISCLOSED FULLY AND TRULY ALL THE RELEVANT PARTICULARS IN THE FORMER ROUND OF ASSESSMENT. WE QUOTE AMIYA SALE INDUSTRIES LTD . VS. ACIT 274 ITR 25 (KOL); WELL INTERADE PVT. LTD. VS. ITO (2009) 308 ITR 22 (DEL) AND CIT VS. ELGI ULTRA INDUSTRIES LIMITED 286 ITR 674 (MAD) THAT SUCH A FAILURE ON ACCOUNT OF THE ASSESSING OFFICER RENDERED 148/147 NOTICE AS NOT SUSTAINABLE IN LAW. COUPLED WITH THIS, HONBLE BOMBAY HIGH COURT IN HINDUSTAN LEVER LTD. VS. ACIT 268 ITR 332 (BOM) ALSO HOLDS THAT AN ASSESSING OFFICERS REOPENING REASONS HAVE TO BE READ AS IT IS WITHOUT ANY SCOPE OF AN ADDITION OR SUBSTITUTION OR DELETION THEREIN; AS THE CASE MAY BE. 4 ITA NO. 884/HYD/2018 4. WE CONCLUDE THE FOREGOING FACTUAL AND LEGAL BACKGROUND THAT THE ASSESSING OFFICER HEREIN HAS ERRED IN LAW AND ON FACTS IN INVOKING 148/147 PROCEEDINGS WITHOUT RECORDING THE ASSESSEE'S FAILURE IN FULLY AND TRULY DISCLOSING ALL THE RE LEVANT PARTICULARS IN THE FORMER ROUND OF REGULAR ASSESSMENT. THE SAME STANDS QUASHED THEREFORE. ALL OTHER PLEADINGS ON MERITS ARE RENDERED ACADEMIC. 5. WE LASTLY ACKNOWLEDGE THAT ALTHOUGH THE INSTANT APPEALS ARE BEING DECIDED AFTER A PERIOD O F 90 DAYS FROM THE DATE OF HEARING AS PER RULE 34(5) OF THE IT(AT) RULES 1963, THE SAME HOWEVER, DOES NOT APPLY IN THE COVID LOCKDOWN SITUATION AS PER HON'BLE APEX COURT'S RECENT DIRECTIONS DATED 27 - 04 - 2021 IN M.A.NO.665/2021 IN SM(W)C NO.3/2020 'IN RE COG NIZANCE FOR EXTENSION OF LIMITATION' MAKING IT CLEAR THAT IN SUCH CASES WHERE THE LIMITATION PERIOD (INCLUDING THAT PRESCRIBED FOR INSTITUTION AS WELL AS TERMINATION) SHALL STAND EXCLUDED FROM 14TH OF MARCH, 2021 TILL FURTHER ORDERS. 5 ITA NO. 884/HYD/2018 7 . THIS ASSESSEE'S APPEAL IS ALLOWED IN ABOVE TERMS. ORDER PRONOUNCED IN THE OPEN COURT ON 18TH AUG. , 2021. SD/ - SD/ - (L .P. SAHU) (S.S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DT. 18 .0 8 .2021. * REDDY GP COPY TO : 1. M/S. LANCO HILLS TECHNOLOGY PARK PVT. LTD., LNACO HOUSE, PLOT NO.4, SOFTWARE LAYOUT (UNITS), HITECH CITY, MADHAPUR, HYDERABAD. 2. DCIT, CIRCLE 16(1), HYDERABAD. 3. PR. C I T - 4 , HYDERABAD. 4. CIT(APPEALS) - 4, HYDERABAD. 5. DR, ITAT, HYDERABAD. 6. GUARD FILE. BY ORDER SR. PVT. SECRETARY, ITAT, HYDERABAD.
