M/s Vertex Homes Private Limited, Hyderabad V. Dy. CIT, Circel 3(3), Hyderabad

MA 2/HYD/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2306 (ITAT-HYDERABAD)
• Duration Of Justice: 7 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-08-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 11-12-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: I RAMA RAO

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER M.A. NO. 02/HYD/2014 (IN ITA NO. 119/HYD/2013 ASSESSMENT YEAR: 2009-10) M/S VERTEX HOMES PVT. LTD., APPL ICANT HYDERABAD (PAN AABCV 2364 G) VS. THE DY. COMMISSIONER OF INCOME-TAX, RESPONDENT CIRCLE 3(3), HYDERABAD. APPLICANT BY : SHRI I. RAMA RAO RESPONDENT BY : SHRI R. MOHAN REDDY DATE OF HEARING : 18/07/2014 DATE OF PRONOUNCEMENT : 08/08/2014 ORDER PER SAKTJIT DEY, A.M.: THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASSE SSEE SEEKING VERIFICATION OF PURPORTED MISTAKE IN THE ORDER PASS ED BY THE TRIBUNAL IN ITA NO. 119/HYD/2010, DATED 30/08/2013. 2. IT IS THE CONTENTION OF THE ASSESSEE IN THE MISC ELLANEOUS APPLICATION THAT SINCE THE ASSESSEE HAS FURNISHED T HE DEVELOPMENT AGREEMENT, WHICH DEMONSTRATES THAT THE ASSESSEE HAS UNDERTAKEN THE DEVELOPMENT ACTIVITY AS A DEVELOPER AND NOT WORKS C ONTRACTOR, TRIBUNAL WAS NOT JUSTIFIED IN IGNORING SUCH DOCUMEN TARY EVIDENCE AND REMITTING THE MATTER TO THE AO FOR DECIDING ASSESSE ES CLAIM OF DEDUCTION U/S 80IB(10). SINCE, THE TRIBUNAL COULD H AVE DECIDED THE MATTER ON THE BASIS OF MATERIAL AVAILABLE ON RECORD , THERE IS NO REASON WHY IT SHOULD HAVE BEEN REMITTED TO THE FILE OF THE AO. M.A. NO. 02/HYD/14 M/S VERTEX HOMES PVT. LTD. 2 3. THE LEARNED DR, ON THE OTHER HAND, SUBMITTED THA T AS THE TRIBUNAL HAS DIRECTED THE AO TO CONSIDER ASSESSEES CLAIM OF DEDUCTION U/S 80IB(10) BY FOLLOWING ITS EARLIER ORD ER PASSED IN CASE OF THE SAME ASSESSEE FOR PRECEDING ASSESSMENT YEAR, TH ERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL. 4. WE HAVE HEARD THE PARTIES AND PERUSED THE MATERI ALS ON RECORD. AS WOULD BE EVIDENT FROM THE ORDER OF THE TRIBUNAL AS WELL AS FACTS ON RECORD, THE ISSUE IN DISPUTE BEFORE THE TRIBUNAL WA S IN RESPECT OF ASSESSEES CLAIM OF DEDUCTION U/S 80IB(10). WHEN SI MILAR ISSUE CAME UP BEFORE THE TRIBUNAL FOR THE PRECEDING ASSESSMENT YEAR I.E. 2008- 09, THE TRIBUNAL REMITTED THE ISSUE BACK TO THE FIL E OF THE AO TO DECIDE THE SAME AFRESH AFTER CONSIDERING ALL FACTS AND MAT ERIALS ON RECORD. WHEN THE ISSUE RELATING TO ASSESSEES CLAIM OF DEDU CTION U/S 80IB(10) OF THE ACT FOR THE PRECEDING ASSESSMENT YEAR 2008-0 9 WAS REMITTED BY THE TRIBUNAL TO THE FILE OF THE AO AND IS PENDING B EFORE HIM, THE TRIBUNAL ON MERITS ASSESSEES CLAIM OF DEDUCTION U/ S 80IB(10), IN THE IMPUGNED ASSESSMENT YEARS AS SUCH A DECISION ON MER IT WOULD HAVE EFFECTIVELY PREEMPTED THE AO FROM TAKING AN INDEPEN DENT VIEW IN THE MATTER AS PER THE DIRECTION OF THE TRIBUNAL IN AY 2 008-09. IN THESE CIRCUMSTANCES, THE TRIBUNAL WAS CORRECT IN DIRECTIN G THE AO TO CONSIDER ASSESSEES CLAIM OF DEDUCTION U/S 80-IB(10 ) AFTER EXAMINING ALL FACTS AND MATERIALS ON RECORD. AS CAN BE SEEN, THE ASSESSEE BY FILING THE PRESENT MA IS MERELY TRYING TO REARGUE H IS CASE AND IN THE PROCESS SEEKING A REVIEW OF THE ORDER PASSED BY THE TRIBUNAL, WHICH IS NOT WITHIN THE SCOPE AND AMBIT OF SECTION 254(2) OF THE ACT. IN THE AFORESAID VIEW OF THE MATTER, WE DO NOT FIND ANY ME RIT IN THE MA FILED BY THE ASSESSEE, WHICH IS ACCORDINGLY DISMISSED. M.A. NO. 02/HYD/14 M/S VERTEX HOMES PVT. LTD. 3 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON SD/- SD/- (B. RAMAKOTAIAH) (SA KTIJIT DEY) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATED: 08/08/2014. KV COPY TO:- 1) M/S VERTEX HOMES PVT. LTD., PLOT NO. 8/B, NIZAMP ET ROAD, KUKATPALLY, HYDERABAD. 2) DCIT, CIRCLE 3(3), HYDERABAD. 3) CIT(A)-IV, HYDERABAD 4) THE CIT-III, HYDERABAD 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A .T., HYDERABAD. S.NO. DESCRIPTION DATE INTLS 1. DRAFT DICTATED ON SR.P.S./P.S 2. DRAFT PLACED BEFORE AUTHOR SR.P.S/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR.P.S./PS SR.P.S./P.S 6. KEPT FOR PRONOUNCEMENT ON SR. P.S./P.S. 7. FILE SENT TO THE BENCH CLERK SR.P.S./P.S 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER