ITO, Ward-2, Mahabubnagar V. Sri Begari Yadaiah,

MA 135/HYD/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2507 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-10-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 18-07-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B RAMA KRISHNA
• Keywords: Additional evidence; Tax effect
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A', HYDERABAD BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER M.A. NO. 135/HYD/2014 ARISING OUT OF ITA NO. 893/HYD/2010 ASSESSMENT YEAR 2006-07 THE INCOME TAX OFFICER WARD-2 MAHABUBNAGAR VS. SHRI BEGARI YADAIAH KOTHUR PAN: AGXPB4324M APPELLANT RESPONDENT APPELLANT BY: SRI B. RAMAKRISHNA RESPONDENT BY: SRI MOHD. AFZAL DATE OF HEARING: 17 . 1 0.201 4 DATE OF PRONOUNCEMENT: 29.10.2014 O R D E R PER ASHA VIJAYARAGHAVAN, JM: BY THIS MISCELLANEOUS APPLICATION (MA) THE REVENUE IS SEEKING RECALL OF ORDER OF THE TRIBUNAL DATED 29 TH NOVEMBER, 2010 IN ITA NO. 893/HYD/2010 FOR A.Y. 2006-07. 2 FACTS OF THE CASE ARE THAT THE SCRUTINY ASSESSMENT IN THE CASE OF SRI BEGARI YADAIAH, THE ASSESSEE, WAS COMPL ETED U/S 143(3) R.W.S 147 ON 29-8-2008 DETERMINING THE TOTAL INCOME AT RS. 5,42,786/-. THE ASSESSEE HAD CLAIMED AN EXPENDI TURE OF RS. 8,56,916/- UNDER THE HEAD 'PF & ESI'. HOWEVER, IN THE SCRUTINY ASSESSMENT, AN EXPENDITURE OF RS. 3,59,416/- WAS DI SALLOWED UNDER THIS HEAD, AS THE SAME WAS PERSONAL OBLIGATIO N OF THE EMPLOYEE MET BY EMPLOYER (ASSESSEE). THE ASSESSEE P REFERRED AN APPEAL BEFORE THE CIT(A) AND THE CIT(A)-V, HYDERABA D VIDE HIS ORDER IN ITA NO. 057/ITO-W-2, MBNR/CIT(A)-V/08-09 D ATED 19- 3-2010 GRANTED RELIEF TO THE ASSESSEE AND DELETED T HE ENTIRE ADDITION OF RS. 3,59,416/-. IN THE APPELLATE PROCE EDINGS, THE MA NO. 135/HYD/2014 SRI BEGARI YADAIAH ================= 2 ASSESSEE'S AR HAD RAISED A NEW ISSUE STATING THAT I NSTEAD OF DEBITING GROSS WAGES TO THE P&L A/C, ONLY NET WAGES , [I.E. GROSS WAGES (-) EMPLOYEES CONTRIBUTION TOWARDS PF & ESI] WAS DEBITED TO THE P&L A/C AND EXPENDITURE OF RS. 3,59,416/- DI SALLOWED IS NOTHING BUT PART OF GROSS WAGES, WHICH IS OTHERWISE INCLUDED UNDER THE HEAD PF & ESI. 3 AGAINST THE SAID ORDER OF THE CIT(A), THE DEPARTMEN T PREFERRED AN APPEAL BEFORE THE ITAT. THE ITAT VIDE ITS ORDER IN ITA NO. 893/HYD/10 DATED 29-11-2010 HAD DISMISSED T HE APPEAL OF DEPARTMENT WITH THE FOLLOWING OBSERVATION S: 'WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT THE TAX EFFECT IN THIS CASE IS LESS TH AN RS. 2 LAKHS. WE FIND THAT IN VIEW OF THE INSTRUCTIO N NO. 2 OF 2005 DATED 24-10-2005 ISSUED BY THE CBDT, THE PRESENT APPEAL FILED BY THE REVENUE INVOLVING T AX EFFECT OF LESS THAN RS. 2 LAKHS IS NOT MAINTAINABLE BEFORE THE TRIBUNAL. ACCORDINGLY, THE APPEAL OF REVENUE IS DISMISSED IN LIMINE. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISS ED. 4 THE DEPARTMENT HAS NOW FILED THIS MA STATING THAT T HE TRIBUNAL HAS DISPOSED OF THE APPEAL AGAINST THE REV ENUE ON TECHNICAL GROUNDS AND WITHOUT CONSIDERING THE GROUN DS OF APPEAL FILED BY THE DEPARTMENT. THE GROUNDS OF APPE AL RAISED BY THE DEPARTMENT BEFORE THIS TRIBUNAL ARE AS FOLLOWS: 1. THE ORDER OF CIT(A) IS ERRONEOUS IN LAW OR FACTS OR BOTH. 2. THE CIT(A) HAS ERRED IN ADMITTING THE ADDITIONAL EVIDENCE WITHOUT GIVING OPPORTUNITY TO THE ASSESSING OFFICER AND WITHOUT CALLING FOR REPORT FROM THE ASSESSING OFFICER, WHICH IS CONTRARY TO THE PROVISIONS OF RULE 46A OF THE IT RULES. MA NO. 135/HYD/2014 SRI BEGARI YADAIAH ================= 3 3. THE CASE IS COVERED BY EXCEPTIONS MENTIONED IN PARA 8 OF INSTRUCTION NO. 5/2008 AS RAP OBJECTION IN THE CASE HAS BEEN ACCEPTED BY THE DEPARTMENT. 4. ANY OTHER GROUND THAT MAY BE URGED AT THE TIME OF HEARING. 5 WE HAVE HEARD BOTH THE PARTIES AND PERUSED MATERIAL ON RECORD. WE ARE OF THE OPINION THAT THE APPEAL OF T HE DEPARTMENT HAD BEEN DECIDED BY THE TRIBUNAL WITHOUT TAKING INT O CONSIDERATION THE GROUNDS OF APPEAL FILED BY THE DE PARTMENT. HENCE THE MATTER REQUIRES RECONSIDERATION. ACCORDI NGLY, THE ORDER OF THE TRIBUNAL DATED 29 TH NOVEMBER, 2010 IN ITA NO. 893/HYD/ 2010 FOR A.Y. 2006-07 IS HEREBY RECALLED A ND THE APPEAL OF THE REVENUE IS RESTORED ON THE FILE OF TH E TRIBUNAL. THE REGISTRY IS DIRECTED TO POST THE CASE AGAIN FOR FRESH HEARING ON 3.3.2015. NO NOTICE SHALL BE SENT TO THE PARTIE S AND THIS ORDER ITSELF WOULD SERVE AS A NOTICE OF HEARING ON THE PARTIES. 6 IN THE RESULT, MA BY THE DEPARTMENT IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH OCTOBER, 2014. SD/ - (P.M. JAGTAP) ACCOUNTANT MEMBER SD/ - (ASHA VIJAYARAGHAVAN) JUDICIAL MEMBER HYDERABAD, DATED THE 29 TH OCTOBER, 2014 TPRAO COPY FORWARDED TO: 1 . THE INCOME TAX OFFICER, WARD - 2, MAHABUBNAGAR. 2 . SRI BEGARI YADAIAH, H. NO. 4 - 5, RAILWAY STATION, K O THUR VILLAGE, MAHABUBNAGAR DISTRICT. 3. THE CIT(A) - V, HYDERABAD. 4 . THE CIT - IV , HYDERABAD. 5 . THE DR A BENCH, ITAT, HYDERABAD