M/s Sri Sai Lakshmi Constructions & Co, Vijayawada V. THE DCIT, Circle-2(1), Vijayawada

MA 16/VIZ/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3189 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 9 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-03-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 17-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B RAMA KRISHNA
• Keywords: Depreciation
• Section: 40(b)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . . , BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER& SHRI D.S. SUNDER SINGH, ACCOUNTANT MEMBER M . A .NO. 1 6 /VIZ/2019 (ARISING OUT OF I.T.A NO. 2 6 2 /VIZ/201 5 ) ( / A SSESSMENT Y EAR : 20 0 8 - 09 ) M/S SRI SAI LAKSHMI CONSTRUCTIONS & CO., D.NO.59 - 7 - 11/2, SRI SAI NILAYAM ACHARYA RANGA STREET RAMACHANDRA NAGAR VIJAYAWADA [PAN : AAOFS7183E] ( / APPELLANT) VS. DY.COMMISSIONER OF INCOME TAX CIRCLE - 2(1) VIJAYAWADA ( / RESPONDENT) / APPELLANT BY : SHRI G.V.N.HARI, AR / RESPONDENT BY : SHRI B.RAMA KRISHNA, DR / DATE OF HEARING : 0 6 .0 3 .2020 / DATE OF PRONOUNCEMENT : 06 .0 3 . 20 20 / O R D E R P ER SHRI D.S.SUNDER SINGH, ACCOUNTANT MEMBER : IN THE INSTANT CASE, THE REVENUE HAS FILED MISCELLANEOUS APPLICATION AGAINST THE ORDER OF THE INCOME TAX APPELLATE TRIBUNAL (ITAT) IN ORDER NO.262/VIZ/2015 DATED 06.02.2019 FOR THE ASSESSMENT YEAR (A.Y.) 2008 - 09. 2 M .A. NO . 1 6 /VIZ/201 9 , A.Y.20 0 8 - 09 M/S SRI SAI LAKSHMI CONSTRUCTIONS & CO., VIJAYAWADA 2. IN THE INSTANT CASE, THE DEPARTMENT HAS FI LED APPEAL FOR THE A.Y. 2008 - 09. DURING THE APPEAL HEARING ON 24.01.2019, THE LD.AR SUBMITTED THAT IN THE ASSESSEES OWN CASE FOR THE A.Y.2011 - 12 IN APPEAL NO.523/VIZ/2014, DATED 11.07.2016, THE COORDINATE BENCH HAS CONSIDERED THE ISSUE AND HELD THAT THE ESTIMATION OF NET PROFIT @10% ON MAIN CONTRACTS AND 7% ON SUB CONTRACTS IS REASONABLE AND EXPRESSED NO OBJECTION FOR ESTIMATING THE INCOME AS DECIDED IN ASSESSEES OWN APPEAL IN I.T.A. NO.523/VIZ/2014 DATED 22.07.2016. ACCORDINGLY, THE TRIBUNAL DIRECTED THE AO TO ESTIMATE THE INCOME @10% ON MAIN CONTRACTS AND 7% ON SUB CONTRACTS NET OF ALL EXPENDITURE AND DEPRECIATION SUBJECT TO FURTHER DEDUCTIONS TOWARDS INTEREST ON CAPITAL AND REMUNERATION TO PARTNERS U/S 40(B) OF THE ACT. HOWEVER, THE TRIBUNAL FURTHER HELD THAT THE INCOME AFTER GIVING EFFECT TO THE ORDER OF THIS TRIBUNAL SHOULD NOT BE LESS THAN THE RETURNED INCOME. HOWEVER, WHILE PASSING THE ORDER DECISION, ITAT HAS MENTIONED THE ORDER IN I.T.A NO.262/VIZ/2015 DATED 28.04.2017 INSTEAD OF ORDER NO.523/ VIZ/2014 DATED 22.07.2016. SINCE THERE WAS A MISTAKE APPARENT FROM THE RECORD, THE ASSESSEE FILED MISCELLANEOUS APPLICATION REQUESTING TO RECTIFY THE MISTAKE. 3 M .A. NO . 1 6 /VIZ/201 9 , A.Y.20 0 8 - 09 M/S SRI SAI LAKSHMI CONSTRUCTIONS & CO., VIJAYAWADA 3. WE HAVE GONE THROUGH THE SUBMISSIONS OF THE LD.AR AND THE LD.DR AND FIND THAT THERE WAS A MI STAKE IN THE APPELLATE ORDER. THEREFORE, WE MODIFY THE MISTAKE AS UNDER : THE WORDS I.T.A.NO.262/VIZ/2015 DATED 28.04.2019MENTIONED IN PAGE NO.3 AND IN PAGE NO.6 SHOULD BE READ AS I.T.A. NO.523/VIZ/2014 DATED 22.07.2016. ACCORDINGLY, THE MISCELLANEOUS A PPLICATION OF THE ASSESSEE IS ALLOWED. 4. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH MARCH, 2020. S D/ - S D/ - ( . ) ( . . ) (V. DURGA RAO) ( D.S. SUNDER SINGH ) /JUDICIAL MEMBER /ACCOUNTANT MEMBER /VISAKHAPATNAM /DATED : 06. 0 3 .20 20 L.RAMA, SPS 4 M .A. NO . 1 6 /VIZ/201 9 , A.Y.20 0 8 - 09 M/S SRI SAI LAKSHMI CONSTRUCTIONS & CO., VIJAYAWADA / COPY OF THE ORDER FORWARDED TO: - 1. / THE ASSESSEE - M/S SRI SAI LAKSHMI CONSTRUCTIONS & CO., D.NO.59 - 7 - 11/2, SRI SAI NILAYAM, ACHARYA RANGA STREET, RAMACHANDRA NAGAR, VIJAYAWADA 2 . / THE REVENUE DY.COMMISSIONER OF INCOME TAX, CIRCLE - 2(1), VIJAYAWADA 3. / THE COMMISSIONER OF INCOME TAX , VIJAYAWADA 4. ( ) / THE COMMISSIONER OF INCOME - TAX (APPEALS), VIJAYAWADA 5 . , , / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // SR. PRIVATE SECRETARY ITAT, VISAKHAPATNAM