Dr.R.Sudha Rani, Tirupathi V. Asst. Commissioner of Income Tax, Circle-(1), Tirupathi

MA 69/Hyd/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 8246 (ITAT-HYDERABAD)
• Duration Of Justice: 8 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-A
• Next Hearing Date: 01-03-2019
• Assessment Year: 2009-2010
• Appeal Filed On: 13-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V RAJITHA
• Assessee Lawyers: S RAMA RAO
• Keywords: Unexplained investment; Depreciation; Opportunity of being heard; Revised return
• Section: 69; 10; 2

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A , HYDERABAD BEFORE S MT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S . RIFAUR RAHMAN , ACCOUNTANT MEMBER M.A.NO S . 69 & 70 /HYD/2018 (IN ITA NO S . 3 71 & 372 /HYD/201 4 AND CO NOS. 33 & 34/HYD/2015) ASSESSMENT YEAR S : 2009 - 10 & 20 10 - 11 ) DR. R. SUDHA RANI , TIRUPATI PAN A FEPR 8106B VS. ASST. COMMISSIONER OF INCOME - TAX , CIRCLE 1(1), TIRUPATI (APP LICA NT) (RESPONDENT) M.A.NO S . 16 & 17 /HYD/201 9 (IN ITA NO S . 3 71 & 372 /HYD/201 4 AND CO NOS. 33 & 34/HYD/2015) ASSESSMENT YEAR S : 2009 - 10 & 2010 - 11) ASST. COMMISSIONER OF INCOME - TAX , CIRCLE 1(1), TIRUPATI VS. DR. R. SUDHA RANI , TIRUPATI PAN A FEPR 8106B (APPLICANT) (RESPONDENT) ASSESSEE BY : SHRI S. RAMA RAO REVENUE BY : S MT. V. RAJITHA DATE OF HEARING : 01 - 0 3 - 201 9 DATE OF PRONOUNCEMENT : 12 - 0 4 - 201 9 O R D E R PER S . RIFAUR RAHMAN, A .M.: TH E S E MISCELLANEOUS APPLICATION ARE FILED BY THE ASSESSEE AS WELL AS REVENUE U/S 254(2) OF THE INCOME TAX ACT SEEKING RECTIFICATION/MODIFICATION OF PARA 4.1 OF THE ORDER OF THE TRIBUNAL DATED 21 /0 3 /201 8 IN ITA NO. 371 & 372/HYD/2014. 2 M.A. NO S . 69 & 70/H/18 AND 16 & 17 /HYD/201 9 DR. R. SUDHA RANI 2. IN MA 69/HYD/201 8 , ASSESSEE FILED A PETITION SEEKING RECTIFICATION IN THE ORDER PASSED IN ITA NO. 371/HYD/2014 IN THE FOLLOWING MANNER: I) IN PARA 5.4, IN THE MA, HE BROUGHT TO THE NOTICE OF THE BENCH THAT IN THE ORDER AT 8.1 PARA, THE HONBLE BENCH HAS OBSERVED AS SUBSEQUENT AY INSTEAD OF PREVIOUS AY, WHICH MAY BE RECTIFIED. II) FURTHER, HE SOUGHT RECTIFICATION BY BRINGING THE MISTAKE IN GROUNDS RAISED BY THE DEPARTMENT BY SUBMITTING THAT THE ASSESSEE HAS FILED EVIDENCE ON 09/10/20 17, WHICH IS NOT A FRESH EVIDENCE, THEREFORE, THE REVENUE IS NOT CORRECT IN STATING IN ITS GROUNDS OF APPEAL THAT FRESH EVIDENCE FOR SOURCE OF RS. 19,72,731/ - HAS BEEN PRODUCED BY THE ASSESSEE FOR THE AY 2009 - 10 THAT SUCH AFRESH EVIDENCE IS THE BASIS FOR G RANTING RELIEF BY THE LD. CIT(A). III) FURTHER, HE STATED THAT FIXED ASSETS AND INVESTMENTS WERE MADE IN PY 2006 - 07 RELEVANT TO AY 2007 - 08 AND ADDITION MADE FOR THE YEAR STOOD DELETED ACCEPTING THE EVIDENCE PRODUCED BY THE ASSESSEE AND THE SAME COULD NOT BE MADE IN THE AY UNDER CONSIDERATION. FOR THIS PROPOSITION, HE STATED THAT PROVISIONS OF SECTION 69 ARE APPLICABLE ONLY TO THE YEAR IN WHICH INVESTMENTS ARE FOUND TO HAVE BEEN MADE AND NOT TO EVERY SUBSEQUENT AY. THEREFORE, HE CONTENDED THAT THERE IS A MI STAKE OF LAW COMMITTED BY THE ITAT AND THIS IS THE REASON THE CROSS OBJECTION IS DISMISSED. 2.1 LD. AR MADE ELABORATE SUBMISSIONS RELATING TO GROUND NO. 2 ON OUTSTANDING EXPENSES OF RS. 7,76,562/ - AND RS. 2,50,000/ - ON ACCOUNT OF MEDICINES AND SALARIES, W HICH WAS REMITTED TO AO FOR FURTHER VERIFICATION. HE OBJECTED TO SUCH REFERENCE TO AO FOR FURTHER VERIFICATION. 3 M.A. NO S . 69 & 70/H/18 AND 16 & 17 /HYD/201 9 DR. R. SUDHA RANI 3. LD. DR OBJECTED TO THE ABOVE SUBMISSION OF THE LD. AR AND SUBMITTED THAT THERE IS NO MISTAKE APPARENT FROM RECORD EXCEPT THE SUBMISSION RELATING TO SUBSEQUENT AYS. 4. CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED MATERIAL ON RECORD. WE OBSERVE THAT THERE IS A MISTAKE APPARENT IN PARA 8.1 OF THE ORDER. THEREFORE, WE REPRODUCE PARA 8.1 BY RECTIFYING THE MISTAKE AS PREVIOUS YEAR : 8.1. AFTER CONSIDERING THE SUBMISSIONS, WHICH ARE PLACED ON RECORD, IN OUR CONSIDERED VIEW, ASSESSEE HAS REVISED THE OPENING WDV OF THE ASSETS VIZ., EQUIPMENT AND GENERATOR TO THE EXTENT OF RS. 19,72,731/ - . IT IS THE DUTY OF ASSESSEE TO EXPLAIN PROPERLY THE DIFFERENCE IN CARRYING FORWARD OF WDV VALUE AS ON 01 - 04 - 2008. ASSESSEE HAS REVISED THIS VALUE ONLY IN THE REVISED RETURN OF INCOME FILED. IT WAS MERELY CLAIMED THAT ASSESSEE HAS NOT CLAIMED ANY DEPRECIATION. HOWEVER, THE EXPLANATION OFFERED FOR THE ABOVE ADDITIONS THAT IT WAS ALREADY EXPLAINED DURING AY. 2007 - 08, IN WHICH SUCH ADDITIONS WERE MADE, IS NO T ENOUGH. IT COULD BE, ASSESSEE MIGHT HAVE PURCHASED THOSE ASSETS BY AVAILING PROPER LOANS FROM FINANCIAL INSTITUTIONS BUT SHE HAD CHOSEN NOT TO CAPITALIZE THOSE ASSETS OR SHE HAD CAPITALIZED THOSE ASSETS DURING THE AY. 2007 - 08 BUT WHY THE OPENING WDV WAS DECLARED AS LESSER VALUE IN THE ORIGINAL RETURN OF INCOME. THESE ARE GENUINE EXPLANATIONS ASSESSEE HAS TO OFFER BEFORE THE ASSESSING AUTHORITIES. LD. CIT(A) HAS DELETED THE ADDITION MERELY BECAUSE THESE ADDITIONS WERE MADE IN THE PREVIOUS AS SES SMENT YEAR , THE SAME CANNOT BE ADDED IN THIS ASSESSMENT YEAR AS UNEXPLAINED INVESTMENT, WHICH IS, ACCORDING TO US NOT PROPER. WHEN ASSESSEE CLAIMS DIFFERENTLY IN THE REVISED RETURN OF INCOME, IT IS THE DUTY OF ASSESSEE TO EXPLAIN PROPERLY THE SOURCE OF SUCH INVESTMENT . THEREFORE, FOR THE SAKE OF JUSTICE, WE ARE REMITTING BACK THIS ISSUE OF UNEXPLAINED INVESTMENT TO THE FILE OF AO TO VERIFY THE SOURCES OF INVESTMENT WITH A PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4.1 WITH REGARD TO OTHER SUBMISSION OF THE L D. AR, WE ARE IN AGREEMENT WITH THE SUBMISSION OF THE LD. DR. THE ASSESSEE HAS MADE ELABORATE OBJECTIONS AND OBJECTS TO REMITTANCE OF THE ISSUE TO THE FILE OF AO FOR FURTHER VERIFICATION. WE DO NOT SEE ANY REASON TO RECTIFY AS THERE IS NO MISTAKE APPARENT ON RECORD. ACCORDINGLY, THE MA FILED BY THE ASSESSEE IS PARTLY ALLOWED. 4 M.A. NO S . 69 & 70/H/18 AND 16 & 17 /HYD/201 9 DR. R. SUDHA RANI M.A. NO. 70/HYD/201 8 5. LD. AR MADE SEVERAL SUBMISSIONS, WHICH ARE SIMILAR TO THE SUBMISSIONS MADE IN MA NO. 69/HYD/2019 AND OBJECTS TO REMITTANCE OF THE ISSUE BACK TO THE FILE OF AO . 6. IN OUR CONSIDERED VIEW, THERE IS NO MISTAKE APPARENT ON RECORD AND M.A. FILED BY THE ASSESSEE IS DISMISSED. M.A. NOS. 16 & 17/HYD/2019 BY THE REVENUE 7. REVENUE FILED THESE MAS THAT THERE IS MISTAKE APPARENT ON RECORD THAT THE HONBLE BENCH WHILE DISPOSING OF APPEAL IN ITA NO. 371/HYD/14 RELATING TO AY 2009 - 10, FAILED TO ADJUDICATE GROUND NO. 5 OF GROUNDS OF APPEAL, SIMILARLY, IN APPEAL NO. 372/HYD/14, TH E BENCH HAS NOT ADJUDICATED GROUND NO.1 OF GROUND OF APPEAL, FILED BY THE REVENUE. 8. CONSIDERED THE SUBMISSIONS AND NOTICED THAT WE HAVE NOT ADJUDICATED THE ABOVE GROUNDS INADVERTENTLY. THEREFORE, GROUND NO. 5 IN AY 2009 - 10 AND GROUND NO. 1 IN AY 2010 - 11 ARE REFIXED FOR HEARING. ACCORDINGLY, THE REGISTRY IS DIRECTED TO POST THESE APPEALS ONLY ON THE ABOVE GROUNDS IN DUE COURSE ON APPROPRIATE DATES AVAILABLE BY SENDING NOTICE OF HEARING TO BOTH THE PARTIES. 9 . IN THE RESULT, MA NO. 69/HYD/2019 IS PARTLY A LLOWED, MA NO. 70/HYD/14 IS DISMISSED AND THE MA NOS. 16 & 17/HYD/2019 FILED BY THE REVENUE ARE ALLOWED. PRONOUNCED IN THE OPEN COURT ON 12 TH A PRIL , 2019. SD/ - SD/ - ( P. MADHAVI DEVI ) (S . RIFAUR RAHMAN ) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDERABAD, DATED: 12 TH APRIL , 2 01 9 KV 5 M.A. NO S . 69 & 70/H/18 AND 16 & 17 /HYD/201 9 DR. R. SUDHA RANI COPY TO: - 1. DR. R. SUDHA RANI, SAI SUDHA HOSPITALS, 513C, REDDY & REDDY COLONY, TIRUPATHI. 2. ACIT, CIRCLE - (1), TIRUPATI. 3. CIT(APPEALS) , GUNTUR . 4. CIT , TIRUPATI. 5. D.R. ITAT, HYDERABAD. 6. GUARD FILE.