DCIT, Cir-16(3), Hyderabad V. Ongole Educational Academy Pvt.Ltd., Hyderabad

MA 47/HYD/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6370 (ITAT-HYDERABAD)
• Duration Of Justice: 1 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-04-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 03-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V RAGHAVENDRA RAO
• Assessee Lawyers: K V N CHARYA
• Keywords: Depreciation

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD A BENCH, HYDERABAD BEFORE SHRI G.C. GUPTA, VICE PRESIDENT AND SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER MA NO.47/H/2011 ARISING OUT OF ITA NO.288/H/2009 ASSESSMENT YEAR 2005-06 THE DCIT, 16(3), HYDERA BAD VS M/S ONGOLE EDUCATIONAL ACADEMY (P) LTD. HYDERABAD (PAN AAACO 2388 Q) APPELLANT RESPONDENT APPELLANT BY : SHRI K.V.N. CHARYA RESPONDENT BY : SHRI V. RAGHAVENDRA RAO ORDER PER CHANDRA POOJARI, ACCOUNTANT MEMBER: THIS MISCELLANEOUS APPLICATION FILED BY THE ASSES SEE IS DIRECTED AGAINST THE ORDER OF THIS TRIBUNAL DATED 30.10.2010 AND PERTAINS TO THE ASSESSMENT YEAR 2005-06 WHEREIN THE ASSESSEE HAS ST ATED THAT THE ASSESSEE RAISED THE GROUND NO.2 IN ITS ABOVE CROSS OBJECTION THAT THE CIT(A) ERRED IN NOT GRANTING THE CURRENT YEAR DEPRECIATION , THE UNABSORBED DEPRECATION AND THE EXPENDITURE ON REPAIRS AND MAIN TENANCE ARE ALLOWABLE U/S 57(II) R.W.S. 30(A)(II), 30(C ) AND 31 OF THE I T ACT. 2. ACCORDING TO LEARNED AUTHORIZED REPRESENTATIV E FOR THE ASSESSEE, THE TRIBUNAL VIDE ITS ORDER DATED 30/12/2 010 HAS NOT DEALT THE ISSUE RELATING TO ALLOWABILITY OF EXPENDITURE ON RE PAIRS AND MAINTENANCE U/S 57(II) R.W. SECTIONS 30(A)(II) AND 31 OF THE INCOME TAX ACT, 1961 AND PRAYED TO GIVE SUITABLE DIRECTIONS ON THIS ISSUE. 3. THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS S UBMITTED THAT THERE IS NO MISTAKE APPARENT ON RECORD AND DOES NOT WARRANT RECALL OF THE ORDER OF THE TRIBUNAL. MA NO.47 OF 2011 (ITA 288 OF 2009) ONGOLE EDUCATIONAL ACADEMY P LTD., HYD. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED TH E MATERIAL AVAILABLE ON RECORD. ADMITTEDLY, THE ASSESSEE HAS RAISED THE GROUND RELATING TO ALLOWABILITY OF EXPENDITURE ON REPAIRS AND MAINT ENANCE AS ALLOWABLE U/S 57(II) R.W.S. 30(A)(II) AND 31 OF THE IT ACT IN GRO UND NO.2 OF ITS CROSS OBJECTION. THE TRIBUNAL IN PARA NO.24 OF ITS ORDER HAS DEALT THE ISSUE RELATING TO ALLOWABILITY OF EXPENDITURE U/S 57(III) OF THE ACT. HOWEVER, INADVERTENTLY, THE TRIBUNAL HAS NOT GIVEN ITS FINDI NGS WITH REGARD TO ALLOWABILITY OF EXPENDITURE ON REPAIRS AND MAINTENA NCES WHICH ARE ALLOWABLE U/S 57(II) R.W.S. 30(A)(II), 30(C ) AND 31 OF THE I T ACT. IN OUR OPINION, WHAT WAS EXPRESSED WITH REGARD TO EXPENDITURE U/S 57(III ) IN PARA 24 OF THE TRIBUNAL ORDER, THE SAME IS APPLICABLE TO THIS ISSU E ALSO. ACCORDINGLY, IF THE ASSESSEE PROVES THE EXPENDITURE WITH PROPER EVIDENC E, THE SAME HAS TO BE CONSIDERED BY THE ASSESSING OFFICER IN ACCORDANCE W ITH LAW AS HELD IN PARA 24 OF THE TRIBUNAL ORDER DATED 30.12.2010. THE MA FILED BY THE ASSESSEE IS DISPOSED OFF ACCORDINGLY. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSE E IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT O N: 21.4. 2011 SD/- SD/- G.C. GUPTA CHANDRA POOJARI VICE PRESIDENT ACCOUNTANT MEMBER DATED THE 21.4.2011 COPY FORWARDED TO: 1. THE DCIT, CIRCLE 16(3), HYDERABAD 2. M/S ONGOLE EDUCATIONAL ACADEMY (P) LTD., 11-5-764, RED HILLS, HYDERABAD 3. THE CIT(A) V HYDERABAD 4. THE CIT, HYDERABAD 5. THE DR, ITAT, HYDERABAD NP