M/s. Super Constructions, Hyderabad V. ACIT, Circle -6(1), Hyderabad

MA 160/HYD/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1392 (ITAT-HYDERABAD)
• Duration Of Justice: 7 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 19-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S J T KOTTARAM
• Assessee Lawyers: R SESHAGIRI RAO
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER MISC. APPLN. NO.160/HYD/2013 (IN ITA NO.1629/HYD/12) : ASSTT. YEAR 2009 - 10 M/S. SUPER CONSTRUCTIONS, HYDERABAD. ( PAN - AAVFS 2242 P) V/S. ASST. COMMISSIONER OF INCOME - TAX L CIRCLE 6(1), HYDERABAD (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI R.SESHAGIRI RAO RESPONDENT BY : SHRI S.J.T.KOTTARAM DR DATE OF HEARING 13.12.2013 DATE OF PRONOUNCEMENT 21.0 1.2014 O R D E R PER SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER: BY THIS APPLICATION, THE APPLICANT SEEKS RECTIFICATION/RECALL OF THE ORDER OF THIS TRIBUNAL DATED 22.2.2013 IN ITA NO.1629/HYD/2012 FOR THE ASSESSMENT YEAR 2009 - 10, ON THE GROUND THAT CERTAIN MISTAKES APPARENT FROM RECORD HAVE CREPT INTO THE SAME. 2. TH E LEARNED COUNSEL FOR THE ASSESSEE, REITERATING THE AVERMENTS MADE IN THE PRESENT APPLICATION, SUBMITTED THAT THE TRIBUNAL, WHILE DIRECTING THE ASSESSING OFFICER TO RECOMPUTE THE INCOME OF THE ASSESSEE IN ACCORDANCE WITH THE DECISIONS OF THE TRIBUNAL IN TH E CASE OF ACIT V/S. TEJA CONSTRUCTIONS (ITA NO.1191/HYD/2011 DATED 17.2.1012) AND IN THE CASE OF M/S.C.EASWARA REDDY & CO., HYDERABAD (ITA N OS.668 AND 670/HYD/2009 DATED 31.1.2011), WITH AN ERRONEOUS OBSERVATION THAT BOTH ARE TO THE SAME EFFECT. THE LEARNE D COUNSEL SUBMITTED THAT THERE IS A SUBTLE DIFFERENCE BETWEEN THESE TWO DECISIONS ON THE ASPECT OF PRECISE RATE TO BE ADOPTED FOR ESTIMATION OF INCOME FROM CONTRACT RECEIPT S, WITH/WITHOUT SEPARATE DEDUCTION TOWARDS DEPRECIATION. MA NO.160/HYD/2013 (IN I TA NO. 1629 / HYD/2012 ) M/S. SUPER CONSTRUCTIONS, HYDERABAD. 2 3. THE LEARNED DEPARTMEN TAL REPRESENTATIVE, ON THE OTHER HAND, STRONGLY SUPPORTING THE ORDER OF THE TRIBUNAL DATED 22.2.2013, SUBMITTED THAT THERE IS NO MISTAKE APPARENT FROM RECORD AND THE PRESENT APPLICATION FOR RECTIFICATION IS LIABLE TO BE REJECTED. 4. WE HEARD BOTH SIDES AND PERUSED OUR ORDER DATED 22 ND FEBRUARY, 2013 . AS CORRECTLY POINTED OUT BY THE LEARNED COUNSEL FOR THE ASSESSEE THERE IS SUBTLE DIFFERENCE BETWEEN THE DECISIONS OF THE TRIBUNAL IN TEJA CONSTRUCTIONS (SUPRA) AND C.EASWARA REDDY (SUPR A), INASMUCH AS WHILE IN THE FORMER, THE RATE PRESCRIBED FOR ESTIMATION, VIZ. 9% , WAS WITH SEPARATE DEDUCTION TOWARDS DEPRECIATION, IN THE LATER CASE , IT WAS 8% WITHOUT ANY SEPARATE DEDUCTION THEREAFTER TOWARDS DEPRECIATION. SINCE IN THE PRE SE N T CA S E, WE HAVE CATEGORICALLY HELD THAT THE INCOME HAS TO BE ESTIMATED AS PER THE DECISION OF THE TRIBUNAL IN THE CASE OF TEJA CONSTRUCTIONS, DATED 17.2 . 2012 IN ITA NO.1191/HYD/2011 FOR THE ASSESSMENT YEAR 2006 - 07, OBVIOUSLY APPLYING A RATE OF 9%, AND NOT 8% WITHO UT ANY FURTHER DEDUCTION TOWARDS DEPRECIATION, AS HELD IN THE CA S E OF C.EASWARA REDDY. THAT BEING SO, HAVING FOLLOWED THE RATE PRESCRIBED IN THE CASE OF TEJA CONSTRUCTIONS, IN THIS CASE ALSO ASSESSEE SHOULD HAVE BEEN ALLOWED SEPARATE DEDUCTION TOWARDS DEP RECIATION, AS DIRECTED IN THE CASE OF M/S. TEJA CONSTRUCTIONS. IN THIS VIEW OF THE MATTER, WE RECTIFY THE CONCLUDING PART OF PENULTIMATE SENTENCE OF PARA 6 (CONTAINED IN LINES 10 TO 12 THEREOF), OF OUR ORDER DATED 22.2.2013 , BY DELETING THE BAR ON ALLOWAN CE OF DEPRECIATION, VIZ. THE WORDS BUT NOT DEPRECIATION UNDER S.32 OF THE ACT AND INSERTING THE WORD DEPRECIATION, BEFORE THE WORDS INTEREST AND REMUNERATION TO THE PARTNERS , THEREBY SPECIFICALLY DIRECTING ALLOWANCE OF DEPRECIATION, IN ADDITION TO INTEREST AND REMUNERATION TO THE PARTNERS IN TERMS OF S.40(B). THE CONCLUDING PORTION OF PENULTIMATE SENTENCE OF PARA 6, AS RECTIFIED, SHOULD BE READ AS FOLLOWS - 6. CONSIDERING TOTALITY OF FACTS AND CIRCUMSTANCES OF THE PRESENT CASE. WITH A DIRECTION TO RECOMPUTE THE INCOME OF THE ASSESSEE APPLYING THE RATES MENTIONED IN THE MA NO.160/HYD/2013 (IN I TA NO. 1629 / HYD/2012 ) M/S. SUPER CONSTRUCTIONS, HYDERABAD. 3 ORDER OF THIS TRIBUNAL DATED 17.2.2012 IN ITA NO.1191/HYD/2011 FOR THE ASSESSMENT YEAR 2006 - 07, AND THEREAFTER ALLOW DEPRE CIATION, INTEREST AND REMUNERATION TO THE PARTNERS IN TERMS OF S.40(B) OF THE ACT. WE DIRECT ACCORDINGLY, AND RECTIFYING OUR ORDER DATED 22.2.2013, ALLOW THE PRESENT APPLICATION OF THE ASSESSEE, 5. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE AS SESSEE IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 21 ST JANUARY, 2014 SD/ - SD/ - (CHANDRA POOJARI ) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER DT/ - 21 ST JANUARY, 2014 COPY FORWARDED TO: 1. SUPER CONSTRUCTIONS, C/O. SHRI S.RAMA RAO, FLAT NO.102, SHIRYA'S ELEGANCE, NO.3 - 6 - 643, STREET NO.9, HIMAYATNAGAR, HYDERABAD 500029 2 . ASST. COMMISSIONER OF INCOME - TAX, CIRCLE 6 (1), HYDERABAD 3. COMMISSIONER OF INCOME - TAX(APPEALS) I V , HYDERABAD 4. COMMISSIONER OF INCOME - TAX II I HYDERABAD 5. DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S