Vision 2K+Inc, Hyderabad V. Asst. Commissioner of Income Tax, Circle-4(1), Hyderabad

MA 112/Hyd/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 7135 (ITAT-HYDERABAD)
• Duration Of Justice: 1 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-A
• Assessment Year: 2008-2009
• Appeal Filed On: 30-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R S ARVINDAKSHAN
• Assessee Lawyers: S RAMA RAO
• Keywords: Business income; TDS; Set aside
• Section: 10B; 201; 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A ', HYDERABAD BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER M.A. NO. 112/HYD/2019 (IN I TA NO . 2224 / HYD/201 7 A SSESSMENT Y EAR : 2 008 - 09) VISION 2K + INC., HYDERABAD. PAN A A CFV 4642 H VS. ASST. COMMISSIONER OF INCOME - TAX, CIRCLE 4( 1 ) , HYDERABAD. APPELLANT RESPONDENT ASSESSEE BY: S HRI S. RAMA RAO REVENUE BY: S HRI R.S. ARVINDAKSHAN DATE OF HEARING: 1 8 / 1 0 / 201 9 DATE OF PRONOUNCEMENT: 25 / 1 0 /201 9 O R D E R BY THIS APPLICATION U/S 254(2) OF THE INCOME - T AX ACT, 1961, THE APPLICANT ASSESSEE SEEKS RECTIFICATION/RECALL OF THE ORDER OF THIS TRIBUNAL DATED 24/05/2019 IN ITA NO. 2224/HYD/2017. 2. IN THE M.A., IT WAS STATED THAT THE HONBLE TRIBUNAL DID NOT DECIDE GROUND NO. 3 RAISED BY THE ASSESSEE WITH REGARD TO EXEMPTION U/S 10B OF THE ACT, IN THE SAID ORDER AND, THEREFORE, THERE IS AN ERROR IN THE ORDER OF THE TRIBUNAL IN AS MUCH AS THE HONBLE TRIBUNAL DID NOT CONSIDER THE GROUND RAISED BY THE ASSESSEE. 3. REFERRING TO THE ABOVE FACTUAL BACKGROUND, LD. CO UNSEL FOR THE ASSESSEE REQUESTED THE BENCH TO RECALL THE ORDER AND ADJUDICATION GROUND NO. 3 RAISED IN THE APPEAL. M.A. NO. 112/H/19 & I .T.A. NO. 2224 /HYD/ 201 7 VISION 2K + INC., HYD. 2 4. AFTER HEARING BOTH THE PARTIES, WE FIND THAT THE TRIBUNAL DID NOT CONSIDER GROUND NO. 3 RAISED BY THE ASSESSEE IN THE ORDER(SUPRA), HENC E THE ORDER IS RECALLED FOR THE LIMITED PURPOSE OF ADJUDICATING GROUND NO. 3. ACCORDINGLY, WE DISPOSE OF GROUND NO. 3 AS UNDER: 5. IN THE APPEAL, THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 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 T HE PROVISIONS OF SEC. 194J ARE APPLICABLE TO THE FACTS OF THE CASE AND FURTHER ERRED IN CONFIRMING THE ADDITION OF RS.67,416 / - BY APPLYING THE PROVISIONS OF SEC . 40A (IV) OF THE I.T. ACT. 3) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE C ONSIDERED THE FACT THAT THE APPELLANT IS ENTITLED FOR EXEMPTION U /S 10B OF THE I.T. ACT AND THE ADDITION OF RS.67,416 / - IF ANY MADE WILL ALSO BE ELIGIBLE FOR EXEMPTION U /S 10B OF THE INCOME INCLUDING RS.67,416 / - 4) ANY OTHER GROUND OR GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING. 6. THE FACTS RELATING TO GROUND NO. 3 ARE THAT THE ASSESSEE HAS PAID AUDIT FEE OF RS. 67,416/ - AND THE SAME WAS DISALLOWED BY THE AO ON THE GROUND THAT NO TDS WAS DEDUCTED BY THE AO, WHICH WAS CONFIRMED BY THE CIT(A). 7. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT WHEN THE AUDIT FEE OF RS. 67,416/ - WAS DISALLOWED, THE SAME AMOUNT WAS ADDED TO BUSINESS INCOME WHICH IS TO BE EXEMPTED U/S 10B OF THE ACT. 8. AFTER HEARING THE LD. DR, IT IS OBSERVED THAT ONCE THE AO HAS DISALLOWED THE AUDIT FEE , THE SAME HAS TO BE CONSIDERED M.A. NO. 112/H/19 & I .T.A. NO. 2224 /HYD/ 201 7 VISION 2K + INC., HYD. 3 AS BUSINESS INCOME AND ACCORDINGLY, CLAIM OF DEDUCTION U/S 10B HAS TO BE ALLOWED. I FIND THAT AO AND LD. CIT(A) REJECT ED THE CLAIM OF THE ASSESSEE WITHOUT RECORDING ANY FINDINGS. THEREFORE, I SET ASIDE THE ORDER OF CIT(A) AND DIRECT THE AO TO ALLOW THE AUDIT FEE OF RS. 67,416/ - U/S 10B OF THE ACT, WHICH WAS DISALLOWED ON THE GROUND OF NO TDS WAS DEDUCTED . 9. . IN THE RESULT, MA AND APPEAL OF THE ASSESSEE ARE ALLOWED . PRONOUNCED IN THE OPEN COURT ON 25 TH OCTOBER , 201 9. SD/ - ( V. DURGA RAO ) JUDICIAL MEMBER HYDERABAD, DATED 25 TH OCTOBER , 201 9. KV COPY FORWARDED TO: 1. VISION 2K + INC., H.NO. 6 - 2 - 929/A, BESIDES ZEE TELUGU CHANNEL, KHAIRATHABAD, HYDERABAD. HYDERABAD. 2 . A C IT , CIRCLE 4( 1 ) , IT TOWERS, AC GUARDS, HYDERABAD . 3 . CIT (A) - 1 , HYDERABAD. 4. PR. CIT - 1 , HYDERABAD 5. THE DR, ITAT, HYDERABAD 6. GUARD FILE