Madhucon Projects Limited, Hyderabad V. DCIT,Central Circle-4, Hyderabad

MA 172/HYD/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1832 (ITAT-HYDERABAD)
• Duration Of Justice: 10 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-04-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 22-06-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: P MURALI MOHAN RAO
• Keywords: Opportunity of being heard
• Section: 143(3); 153A; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER M.A. NO. 171/HYD/2013 ITA NO. 805/HYD/2010 A.Y. 2005-06 M.A. NO. 172/HYD/2013 ITA NO. 806/HYD/2010 A.Y. 2006-07 M/S. MADHUCON PROJECTS LTD. HYDERABAD PAN: AABCM4757A VS. THE DEPUTY CIT CENTRAL CIRCLE-4 HYDERABAD APPELLANT RESPONDENT APPELLANT BY: SRI P. MURALI MOHAN RAO RESPONDENT BY: SMT. K. HARITHA DATE OF HEARING: 0 4 .04.2014 DATE OF PRONOUNCEMENT: 23.04.2014 ORDER PER CHANDRA POOJARI, A.M.: BY THESE TWO MISCELLANEOUS APPLICATIONS (MAS) THE ASSESSEE SEEKS RECALL OF TRIBUNAL ORDER DATED 28 TH DECEMBER, 2012 IN ITA NOS. 805/HYD/2010 AND 806/HYD/2010, RESPECTIVELY. 2. THE LEARNED AR SUBMITTED THAT THE ASSESSEE CAME IN APPEAL BEFORE THIS TRIBUNAL BY RAISING THE GROUNDS WITH REGARD TO ALLOWABILITY OF DEDUCTION U/S. 80IA OF THE ACT. THE TRIBUNAL DISMISSED THE APPEALS BY OBSERVING IN PARA 45 AND 4 6 AS FOLLOWS: 2 MA NOS. 171 & 172/HYD/2013 M/S. MADHUCON PROJECTS LTD. ======================= '45. ALL THESE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST THE COMMON ORDER OF THE CIT(A) DATED 31.3.2010. IN THESE CASES THE ASSESSING OFFICER PA SSED THE ORDER U/S. 143(3) R.W.S. 153A OF THE INCOME-TAX ACT, 1961. AGAINST THIS THE ASSESSEE WENT IN APPEAL BEF ORE THE CIT(A) FOR ALL THESE A.YS. 2000-01 TO 2006-07. THE CIT(A) DISMISSED THESE APPEALS HOLDING THAT THE ASSESSMENT ORDERS GIVING RISE TO THE APPEALS BEFORE HIM WERE SUBJECT MATTER OF REVISION U/S. 263 OF THE ACT . BEING SO, HE DISMISSED THESE APPEALS. AGAINST THIS , THE ASSESSEE IS IN APPEAL BEFORE US. 46. AFTER HEARING BOTH THE PARTIES, WE ARE OF THE O PINION THAT THESE APPEALS HAVE BECOME INFRUCTUOUS IN VIEW OF OUR FINDINGS IN ITA NO. 668, 669, 676, 677, 682, 68 3 & 702/HYD/2010 WHEREIN WE HAVE MODIFIED THE ORDER OF THE CIT PASSED U/S. 263 OF THE ACT. BEING SO, THER E ARE NO SURVIVING ASSESSMENT ORDERS IN THESE YEARS. ACCORDINGLY, ITA NOS. 800 TO 806/HYD/2010 ARE DISMISSED AS INFRUCTUOUS.' 3. ACCORDING TO THE LEARNED AR, THE GROUNDS RAISED BY THE ASSESSEE ARE REQUIRED TO BE ADJUDICATED INDEPENDENT LY, AS DEDUCTION U/S. 80IA IS NOT AT ALL SUBJECT MATTER OR ISSUE IN THE ORDER PASSED BY THE CIT U/S. 263 OF THE ACT. BEING SO, THE TRIBUNAL IS REQUIRED TO ADJUDICATE THE ISSUE RELATI NG TO DEDUCTION U/S. 80IA INDEPENDENTLY. ACCORDINGLY, HE PRAYED THE BENCH TO RECALL THE ORDER OF THE TRIBUNAL IN RE SPECT OF ITA NOS. 805 AND 806/HYD/2010 FOR A.YS. 2005-06 AND 200 6-07, RESPECTIVELY. 4. ON THE OTHER HAND, THE LEARNED DR SUBMITTED THAT TH E ORDER OF THE TRIBUNAL IS FULLY CORRECT AND DOES NOT REQUIRE ANY INTERFERENCE. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED MATERIAL ON RECORD. IN THIS CASE, ORIGINALLY THE AO PASSED SEPARATE 3 MA NOS. 171 & 172/HYD/2013 M/S. MADHUCON PROJECTS LTD. ======================= ASSESSMENT ORDERS FOR THESE ASSESSMENT YEARS U/S. 1 43(3) R.W.S. 153A OF THE ACT VIDE ORDER DATED 31.1.2007. THESE TWO ORDERS FOR THE ABOVE ASSESSMENT YEARS ARE SUBJECT MATTER O F REVISION ORDER U/S. 263 OF THE ACT DATED 30.3.2010. ACCORDI NGLY, THE CIT IN HIS ORDER SET ASIDE THE ORDER OF THE AO PASSED U /S. 143(3) R.W.S. 153A DATED 31.12.2007 OF THE ACT FOR BOTH TH E ASSESSMENT YEARS. FOR CLARITY WE REPRODUCE THE REL EVANT PORTION OF THE CIT ORDER AS FOLLOWS: '10. TO SUM UP, IT IS SEEN THAT THE AO HAS NOT MAD E PROPER ENQUIRY AND WITHOUT ANY SUPPORTING MATERIAL HAS ACC EPTED ASSESSEE'S CLAIM AND HE HAS ALSO PASSED ORDERS WHIC H IS AGAINST THE DECISION OF JURISDICTIONAL HIGH COURT T HEREBY MAKING THE ORDERS UNSUSTAINABLE IN LAW. THEREFORE, I HOLD THAT THE ORDERS PASSED BY THE AO ARE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE LIABLE FOR R EVISION U/S. 263. I, THEREFORE, SET ASIDE THE ORDERS PASSED U/S . 143(3) R.W.S. 153A ON 31.12.2007 FOR THE ASST. YEARS 2001- 01 TO 2006-07 AND DIRECT THE ASSESSING OFFICER TO PASS AS SESSMENT ORDERS AFRESH AS PER LAW AFTER MAKING PROPER ENQUIR Y. HE IS DIRECTED TO ALLOW AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE PASSING ASSESSMENT ORDERS AFRESH.' 6. AS SEEN FROM THE ABOVE ORDER, THERE IS NO SURVIVAL OF THE ASSESSMENT ORDER PASSED BY THE AO FOR THE ABOVE TWO ASSESSMENT YEARS. THE CIT WHILE EXERCISING POWERS U/S. 263 OF THE ACT CATEGORICALLY SET ASIDE THE ORDER PASSED U/ S. 143(3) R.W.S. 153A OF THE ACT FOR THESE TWO ASSESSMENT YEA RS AND DIRECTED THE AO TO PASS FRESH ASSESSMENT ORDER AS P ER LAW AFTER MAKING PROPER ENQUIRY. SETTING ASIDE THE ASSESSMEN T BY THE CIT(A) MEANS THAT HE HAD ANNULLED THE ASSESSMENT AN D GIVEN CERTAIN DIRECTION TO REDO THE ASSESSMENT. 7. AS PER BLACK'S LAW DICTIONARY, SIXTH EDITION AT PAGE 1372, THE WORDS 'SET ASIDE' MEANS: 4 MA NOS. 171 & 172/HYD/2013 M/S. MADHUCON PROJECTS LTD. ======================= 'TO REVERSE, VACATE, CANCEL, ANNUL OR REVOKE A JUDG EMENT, ORDER, ETC.' FURTHER THE MEANING OF THE WORD 'ANNUL' AT PAGE 90 OF THE BLACK'S LAW DICTIONARY HAS BEEN GIVEN AS UNDER: 'TO REDUCE TO NOTHING; ANNIHILATE; OBLITERATE, TO M AKE VOID OR OF NO EFFECT; TO NULLIFY; TO ABOLISH, TO DO AWAY WI TH. TO CANCEL, DESTROY; ABROGATE. TO ANNUL A JUDGEMENT OR JUDICIAL PROCEEDING IS TO DEPRIVE IT OF ALL FORCE AND OPERAT ION, EITHER AB INITIO OR PROSPECTIVELY AS TO FUTURE TRANSACTION.' 8. BEING SO, THE CONTENTION OF THE LEARNED AR THAT THE GROUNDS RAISED BY THE ASSESSEE WITH REGARD TO DEDUC TION U/S. 80IA IN ITS APPEAL IS TO BE ADJUDICATED INDEPENDENT LY DOES NOT HOLD ANY MERIT AS THE ORIGINAL ORDER PASSED BY THE AO U/S. 143(3) R.W.S. 153A OF THE ACT HAS ALREADY GOT VACAT ED BY THE ORDER OF THE CIT U/S. 263 OF THE ACT DATED 30.3.201 0. BEING SO, WE ARE INCLINED TO DISMISS THE GROUNDS RAISED BY TH E ASSESSEE IN THESE MAS. 9. IN THE RESULT, BOTH THE MAS ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 23 RD APRIL, 2014 SD/- (ASHA VIJAYARAGHAVAN) JUDICIAL MEMBER SD/- (CHANDRA POOJARI) ACCOUNTANT MEMBER HYDERABAD, DATED THE 23 RD APRIL, 2014 TPRAO COPY TO: 1. M/S. MADHUCON PROJECTS LTD., MADHUCON HOUSE, PLOT N O. 1129/A, ROAD NO. 36, JUBILEE HILLS, HYDERABAD. 2. THE DEPUTY CIT, CENTRAL CIRCLE-4, HYDERABAD. 3. THE CIT(A)-I, HYDERABAD. 4. THE CIT (CENTRAL), HYDERABAD 5. THE DR, A BENCH, ITAT, HYDERABAD.