M/s Tirumala Constructions, Tirupathi V. DCIT, Circle-2(1), Hyderabad

MA 189/HYD/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0822 (ITAT-HYDERABAD)
• Duration Of Justice: 2 month(s) 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-09-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 11-07-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUNIL BABU
• Assessee Lawyers: V RAGHAVENDRA RAO

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER M.A.NO.189/HYD/2013 (IN ITA NO.1644/HYD/12) : ASSESSMENT YEAR 2009 - 10 M/S. TIRUMALA CONSTRUCTIONS, TIRUPATI (PAN AADFT 9134 F) V/S. DY. COMMISSIONER OF INCOME - TAX CIRCLE 2(1), TIRUPATI (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI V.RAGHAVENDRA RAO RESPONDENT BY : SHRI SUNIL BABU DR DATE OF HEARING 30.08.2013 DATE OF PRONOUNCEMENT 27.09.2013 O R D E R PER SAKTIJIT DEY, JUDICIAL MEMBER: BY THIS APPLICATION UNDER S.254(2) OF THE INCOME - TAX ACT, 1961, ASSESSEE SEEKS RECTIFICATION/RECALL OF THE ORDER OF THIS TRIBUNAL DATED 21.6.2013 ON THE APPEAL OF THE REVENUE, BEING ITA N O.1644/HYD/2012 FOR THE ASSESSMENT YEAR 2009 - 10, ON THE GROUND THAT CERTAIN MISTAKES APPARENT FROM RECORD HAVE CREPT INTO THE SAME. 2. THE LEARNED COUNSEL FOR THE ASSESSEE, TAKING US THROUGH THE OPERATIVE PORTION OF THE O R DER OF THE TRIBUNAL DATED 21.6.2013, WHEREBY THE ASSESSING OFFICER WAS DIRECTED TO ESTIMA T E PROFIT AT 8% ON R S .8,45,04,695 AND THEREAFTER ALLOW DEDUC T ION TOWARDS IN T ER E ST AND REMUNERATION PAYMENT TO THE PARTNERS UNDER S.40B OF THE ACT . HE ALSO TOOK US THROUGH THE WRITTEN SUBMISSION S OF THE ASSESSEE FILED BEFORE THE TRIBUNAL IN THE COU R SE OF APPEAL HEAR ING, AND SUBMITTED THAT THE LEARNED COUNSEL FOR THE ASSESSEE RELIED ON THE DECISION OF THE TRIBUNAL IN TH E CA S E OF VISHAL INFRASTRUCTURE LTD. V/S. ACIT, A COPY OF WHICH WAS FURNISHED AT PAGE 7 OF THE PAPER - BOOK, WHERE IN IT S HELD THAT BOOK S OF ACCOUNT CAN NOT B E REJECTED SIMPLY B E CAU S E VOU C HERS WERE SELF - MADE. IT WAS ULTIMATELY MA NO.189/YD/2013 (IN ITA NO. 1644 / HYD/201 2 ) M/S. TIRUMALA CONSTRUCTIONS, TIRUPATI 2 SUBMITTED BY THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE DIRECTION OF THE TRIBUNAL IN THE ORDER DATED 21.6.2013 TO ESTIMATE THE INCOME OF THE ASSESSEE AT 8% WAS CONTRARY TO THE IM PRESSION GIVEN BY THE BENCH AT THE TIME OF HEARING THAT 5% OF THE LABOU R EXPEN S ES WOULD BE DISALLOWED AS AGAINS T 1% DISALLOWED BY THE CIT(A); AND THAT THE PLEA OF THE COUNSEL THAT INT E REST AND REMUNERATION TO PARTNERS BE ALLOWED, WOULD ALSO BE CONSIDERED. IT IS THEREFORE, SUBMITTED THAT THERE IS A MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL, AND IT IS THEREFORE PRAYED THAT THE ORDER OF THE TRIBUNAL DATED 21.6.2013 BE RECALLED/RECTIFIED. IN SUPPORT OF THE PRAYER FOR RECTIFICATION/RECALL OF TH E SAID ORDER, RELIANCE IS PLACED ON THE DECISION OF THE DELHI HIGH COURT IN THE CASE OF CIT V/S. G.SAGAR SURI AND SONS(185 ITR 484), WHEREIN IT WAS HELD AS FOLLOWS - ONCE AN ANNOUNCEMENT IS MADE IN THE OPEN COURT, THEN THAT IS THE ORDER OF THE T RIBUNAL AN D THE O R DER WHICH IS WRITTEN SUBSEQUENTLY MERELY CONTAINS THE REASON FOR IT TO COME TO THE CONCLUSION WHICH IT DID. IF THE WRITTEN ORDER IS A T VARIANCE WITH THE ANNOUNCEMENT THE RE I S A MISTAKE IN TH E WRITTEN ORDER WHICH CAN BE RECTIFIED. 3. THE LEARNED DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND, OPPOSED THE ABOVE CONTENTION S OF THE ASSESSEE AND SUBMITTED THAT THERE IS NO MISTAKE APPARENT FROM RECORD, AND ALL THAT THE ASSESSEE IS SEEKING IS A MERE REVIEW OF THE ORDER OF THE TRIBUNAL. 4. W E H AVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD, IN THE LIGHT OF THE CONTENTIONS OF THE ASSESSEE IN THE PRESENT PETITION AND THE ORDER OF THE TRIBUNAL DATED 21.6.2013. THE RELEVANT PORTION OF THE PRESENT MISCELLANEOUS APPLICATION, W HICH BRINGS OUT THE ALLEGED MISTAKE IN THE ORDER APPARENT FROM RECORD SOUGHT TO BE RECTIFIED - 7. THE COUNSEL OF THE ASSESSEE, THE ATUHORIZED REPRESENTATIVE INFORMED THE ASSESSEE HAT AFTER ARGUMENTS FROM THE DEPARTMENTAL REPRESENTATIVE AND THE AUTHORISED REPRESENTATIVE ENDED, THE HONBLE BENCH SPEAKING THROUGH THE HONBLE SENIOR ACCOUNTANT MEMBER STATED THAT % OF THE LABOUR EXPENSES WOULD BE DISALLOWED AS AGAINST 1% DISALLOWED MA NO.189/YD/2013 (IN ITA NO. 1644 / HYD/201 2 ) M/S. TIRUMALA CONSTRUCTIONS, TIRUPATI 3 BY THE LEARNED CIT(A). THE COUNSEL FOR THE AUTHORISED REPRESENTATIVE INFORMED THE APPLICANT/ ASSESSEE HEREIN THAT HE THEN PRAYED THE HONBLE BENCH THAT THE INTER E ST AND REMUNERATION TO PARTNERS BE ALLO W ED AND THAT THE HONBLE BENCH CLOSED THE HEARING WITH THE HONBLE SENIOR ACCOUNTANT MEMBER SAYING WE WILL CONSIDER . 8. HOWEVER, I N THE APPELL A TE ORDER THE HONBLE BENCH DIRECTED THE PROFITS BE ESTIM A TED @ 8% AS IN THE CASE OF ONE SRI C.ISWAR REDDY AND OTHERS IN ITA NO.668 AND 670/HYD/09 DATED 31.01.2011 AS HELD BY THE COORDINATE BENCH. EVEN THOUGH WE DO NOT FIND ANYTHING ON RECORD IN RELATION TO THE ABOVE CLAIM OF THE ASSESSEE OF HAVING GIVEN ANY IMPRESSION THAT WAS STATED TO HAVE BEEN GIVEN AT THE CONCLUSION OF HEARING, AS TO THE ORDER THAT WOULD BE PASSED BY US ON THE APPEAL IN QUESTION, CONSIDERING TOTALITY OF FACTS AND CIRCUMST ANCES OF THE CASE, WE DEEM IT JUST AND FAIR TO RECALL OUR ORDER DATED 21.6.2013. THE SAME IS ACCORDINGLY RECALLED AND THE APPEAL OF THE REVENUE, BEING ITA NO.1644/HYD/2012, IS POSTED FOR FRESH HEARING AND DISPOSAL ON 23.12.2013, FOR WHICH NO SEPARATE NOTI CE OF HEARING WOULD BE ISSUED AND THIS ORDER ITSELF SHOULD BE TREATED AS SUCH A NOTICE OF HEARING. PARTIES ARE DIRECTED NOT TO SEEK UNNECESSARY ADJOURNMENTS AND COOPERATE IN THE EARLY DISPOSAL OF APPEAL. 5. BEFORE PARTING, IT IS HOWEVER, CLARIFIED THAT NEITHER THE SO CALLED IMPRESSION CARRIED BY THE LEARNED COUNSEL FOR THE ASSESSEE AND CONVEYED TO THE ASSESSEE AT THE CONCLUSION OF EARLIER ROUND OF APPEAL HEARING, NOR THE FINDING OR OBSERVATIONS OF THE TRIBUNAL IN ITS ORDER DATED 21.6.2013, HAVE NO BINDI NG EFFECT ON THE FRESH DISPOSAL OF THE APPEAL, AND THE PARTIES HAVE TO PUT FORTH THEIR ARGUMENTS AFRESH AND SEEK FRESH ADJUDICATION ON THE ISSUES IN DISPUTE IN THE APPEAL. 6. IN THE RESULT, ASSESSEES MI S CELLANEOUS APPLICATION IS TREATED AS PARTLY ALL OWED. MA NO.189/YD/2013 (IN ITA NO. 1644 / HYD/201 2 ) M/S. TIRUMALA CONSTRUCTIONS, TIRUPATI 4 ORDER PRONOUNCED IN THE COURT ON 27.9.2013 SD/ - SD/ - (CHANDRA POOJARI) ( SAKTIJIT DEY ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED/ - 27 TH SEPTEMBER, 2013 COPY FORWARDED TO: 1 M/S. TIRUMALA CONSTRUCTIONS, 18 - 4 - 111/2, RAILWAY COLONY, TIRUPATI 2 DY. COMMISSIONER OF INCOME - TAX CIRCLE 2 ( 1 ), TIRUAPTI 3 COMMISSIONER OF INCOME - TAX(APPEALS), GUNTUR 4 COMMISSIONER OF INCOME - TAX , GUNTUR 5 DEPARTMENTAL REPRESENTATIVE ITAT, HYDERABAD B.V.S