Upkar Infra Projects Pvt.Ltd., Hyd, Hyderabad V. DCIT, Circle-2(1), Hyderabad, Hyderabad

MA 9/HYD/2016

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6202 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 1 month(s) 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 29-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N SWAPNA
• Assessee Lawyers: S RAMA RAO
• Keywords: Depreciation
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B: HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER I.T.A. NO. 1349/HYD/2015 ASSESSMENT YEAR: 2006-07 M/S. UPKAR INFRA PROJECTS PVT. LTD., HYDERABAD [PAN: AABCK4691F] VS DY. COMMISSIONER OF INCOME TAX, CIRCLE-3(3), HYDERABAD (APPELLANT) (RESPONDENT) M.A. NO. ASST. YEAR APPLICANT RESPONDENT 07/H YD/16 (IN ITA NO. 958/HYD/07) 2004-05 UPKAR INFRA PROJECTS PVT. LTD., HYDERABAD [PAN: AABCK4691F] DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-2(1), HYDERABAD 08/HYD/16 (IN ITA NO. 270/HYD/09) 2006-07 09/HYD/16 (IN ITA NO. 560/HYD/06) 2003-04 FOR ASSESSEE : SHRI S. RAMA RAO, AR FOR REVENUE : SMT. N. SWAPNA, DR DATE OF HEARING : 09-02-2018 DATE OF PRONOUNCEMENT : 28-03-2018 O R D E R PER SMT. P. MADHAVI DEVI, J.M. : BRIEF FACTS OF THE CASE ARE THAT ASSESSEE (PREVIOUSLY KNOWN AS KOLAN ENGG. CONSTRUCTION PVT. LTD.,) HAD EARL IER FILED APPEALS FOR THE AYS.2003-04 TO 2006-07 IN ITA ITA. NO. 1349/HYD/2015 MA NOS. 7, 8 & 9/HYD/16 :- 2 - : NOS. 958/HYD/2007, 270/HYD/2009, 560/HYD/2006 AND 1059/HYD/2008 BEFORE THE TRIBUNAL AND VIDE THE COMMON AND CONSOLIDATED ORDER DT. 21-01-2013, WHILE DEALING WITH THE ASSESSEES GROUND WITH REGARD TO ESTIMATION OF PROFIT O N DIFFERENT TYPES OF CONTRACTS EXECUTED BY THE ASSESSEE, HAS SET ASIDE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER (A O), WITH A DIRECTION TO COMPLETE THE ASSESSMENT DENOVO IN RESPECT OF ALL THE ASSESSMENT YEARS BEFORE THE TRIBUNAL, KEEPING IN V IEW THE ORDER PASSED BY THE ITAT IN THE CASE OF M/S. C. ESWAR A REDDY AND CO., IN ITA NOS. 668 TO 670/HYD/2009 DT. 31-01-2 011, AFTER GIVING ASSESSEE A FAIR OPPORTUNITY OF HEARING. CONSEQUENT THERE TO, THE AO PASSED ASSESSMENT ORDER FOR THE AY. 200 6-07 AND HAS ARRIVED AT THE TAXABLE INCOME AT RS. 1,47,37,23 0/- AS AGAINST THE INCOME ARRIVED AT RS. 1,16,96,372/- U/S. 1 43(3) OF THE INCOME TAX ACT. AGGRIEVED BY THE SAME, ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A), WHO CONFIRMED THE ORDER OF AO AND ASSESSEE HAS COME IN SECOND APPEAL BEFORE US IN ITA NO. 1349/HYD/2015. 2. MEANWHILE, THE ASSESSEE HAS ALSO FILED MISCELLANE OUS APPLICATIONS FOR ALL THE ASSESSMENT YEARS SEEKING REC TIFICATION OF THE MISTAKES APPARENT FROM RECORD OF THE DIRECTION OF THE ITAT. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT T HE AO, WHILE COMPLETING THE ASSESSMENT U/S. 143(3) OF THE AC T HAD ALLOWED THE DEPRECIATION AFTER ESTIMATION OF INCOME WHIC H HAS RESULTED IN NET INCOME BEING ARRIVED AT RS. 1,04,15,25 5/- AND AFTER GIVING EFFECT TO THE ORDER OF ITAT, THE NET INCO ME HAS BEEN ARRIVED AT RS.1,47,37,230/-, WHICH, ACCORDING TO HIM , IS NOTHING BUT ENHANCEMENT OF INCOME BY THE ITAT. HE SUB MITTED ITA. NO. 1349/HYD/2015 MA NOS. 7, 8 & 9/HYD/16 :- 3 - : THAT U/S. 254 OF THE ACT, THE TRIBUNAL CANNOT TAKE AWAY TH E BENEFIT GRANTED TO ASSESSEE BY THE AO. IN SUPPORT OF THIS CONTENTION, HE PLACED RELIANCE UPON THE DECISION OF TH E HON'BLE SUPREME COURT OF INDIA IN THE CASE OF MCORP GLOBAL (P .) LTD., VS. CIT (2009) [309 ITR 434] (SC). LD. COUNSEL THERE FORE PRAYED THAT THE ORDER OF THE TRIBUNAL DT. 31-01-2011 BE RECTIFIED AND SUITABLE DIRECTION MAY BE GIVEN. 3. LD.DR WAS ALSO HEARD. 4. HAVING REGARD TO THE RIVAL CONTENTIONS AND MATERIAL ON RECORD, WE FIND THAT THE AO HAS ALLOWED DEPRECIATION A FTER ARRIVING AT THE GROSS INCOME BY ESTIMATING THE INCOME, BUT WHILE GIVING EFFECT TO THE ORDER OF THE ITAT, THE INCO ME OF THE ASSESSEE HAS GOT ENHANCED. THE HON'BLE SUPREME COUR T IN THE CASE OF MCORP GLOBAL (P.) LTD., VS. CIT (SUPRA) HAS HELD THAT THE TRIBUNAL CANNOT TAKE BACK THE BENEFIT GRANTED TO THE ASSESSEE BY THE AO. THE ASSESSEE CANNOT BE WORSE OF BY COMING IN APPEAL TO THE TRIBUNAL. RESPECTFULLY FOLLO WING THE SAID DECISION, WE MODIFY THE ORDER OF THE TRIBUNAL DT. 31-01-2011 BY ADDING THE FOLLOWING SENTENCE TO PAR A 7 : .THE CONSEQUENTIAL ASSESSED INCOME SHALL, HOWEVER , BE RESTRICTED TO THE ASSESSED INCOME U/S. 143(3) OF TH E ACT.. 5. ALL THE MISCELLANEOUS APPLICATIONS FILED BY ASSE SSEE ARE THUS ALLOWED. 6. IN VIEW OF THE ORDER EVEN DATED IN MISCELLANEOUS APPLICATION NO.08/HYD/2016, THE APPEAL OF THE ASSES SEE ITA. NO. 1349/HYD/2015 MA NOS. 7, 8 & 9/HYD/16 :- 4 - : AGAINST THE CONSEQUENTIAL ORDER OF THE AO IS SET ASIDE TO THE FILE OF AO FOR RE-COMPUTATION OF INCOME IN ACCORDANCE WITH THE MODIFIED ORDER IN MA NO. 8/HYD/2016. THEREFORE, ASSESSEES APPEAL IN ITA NO. 1349/HYD/2015 IS TREATED AS ALLOWE D FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE MISCELLANEOUS APPLICATIONS ARE A LLOWED AND THE ASSESSEES APPEAL IS TREATED AS ALLOWED FOR S TATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH MARCH, 2018 SD/- SD/- (B. RAMAKOTAIAH) (P. MADHAVI DE VI) ACCOUNTANT MEMBER JUDICIAL MEM BER HYDERABAD, DATED 28 TH MARCH, 2018 TNMM ITA. NO. 1349/HYD/2015 MA NOS. 7, 8 & 9/HYD/16 :- 5 - : COPY TO : 1. M/S. UPKAR INFRA PROJECTS PVT. LTD., C/O. S. RAM A RAO, ADVOCATE, FLAT NO. 102, SHRIYAS ELEGANCE, 3-6-643, STREET NO. 9, HIMAYAT NAGAR, HYDERABAD. 2. DY. COMMISSIONER OF INCOME TAX, CIRCLE-3(3), HYD ERABAD. 3. DY. COMMISSIONER OF INCOME TAX, CIRCLE-2(1), HYD ERABAD. 4. CIT(A)-5 , HYDERABAD. 5. PR.CIT-5, HYDERABAD. 6. D.R. ITAT, HYDERABAD. 7. GUARD FILE.