M/s GSR Hotels & Estates Pvt Ltd., Hyderabad V. DCIT, Circle-2(2), Hyderabad

MA 94/HYD/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2296 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-08-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 27-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: I RAMA RAO
• Keywords: Reopening of assessment
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B', HYDERABAD BEFORE SHRI B.RAMAKOTAIAH, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER MISC. APPLN. NO.94/HYD/2014 (IN ITA NO.1254/HYD/13) : ASSESSMENT YEAR 2004 - 05 M/S. G.S.R.HOTELS & ESTATES PVT. LTD., HYDERABAD ( PAN - AAACG 7386 C ) V/S. DY. COMMISSIONER OF INCOME - TAX, CIRCLE 2(2), HYDERABAD (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI I.RAMA RAO RESPONDENT BY : SHRI SOLGY JOSE T.KOTTARAM DR DATE OF HEARING 04.07.2014 DATE OF PRONOUNCEMENT 28.08.2014 O R D E R PER SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER: BY THIS APPLICATION UNDER S.254(2) OF THE INCOME TAX ACT,1961 THE APPLICANT - ASSESSEE SEEKS RECTIFICATION/RECALL OF THE ORDER OF THIS TRIBUNAL DATED 7.3.2014 IN ITA NO.1254/HYD/2013 FOR ASSESSMENT YEAR 2004 - 05, ON THE GROUND THAT CERTAIN MISTAKES APPARENT FROM RECORD HAVE CREPT INTO THE SAME. 2. LEARNED COUNSEL FOR THE ASSESSEE, REITERATING THE AVERMENTS MADE IN THE PRESENT APPLICATION, SUBMITTED THAT THE TRIBUNAL WHILE DISPOSING OFF THE APPEAL OF THE ASSESSEE VIDE ITS ORDER DATED 7.3.2014 HAS NOT ADJUD ICATED UPON CERTAIN GROUNDS, MORE IMPORTANTLY GROUND NO.2 RELATING TO LEGALITY AND VALIDITY OF REOPENING OF THE ASSESSMENT, RAISED BY THE ASSESSEE IN THE APPEAL. HE SUBMITTED THAT THE TRIBUNAL HAS NOT GIVEN FINDING WITH REGARD TO THE PLEADINGS PUT FORTH BY THE ASSESSEE DURING THE COURSE OF HEARING OF THE APPEAL THAT THE ASSESSING OFFICER HAD NOT MADE CLEAR WHETHER THE SAME ASSESSING OFFICER, WHO RECOR4DED THE REASONS U/S. 148 OF THE ACT, ONLY ISSUED NOTICE UNDER S.147 OF THE ACT OR NOT WHETHER THE PROVISI ONS OF S.151 OF THE ACT WERE COMPLIED WITH OR MA NO.9 4/HYD/14 (IN ITA NO. 1 2 54 /HYD/201 3 ) M/S. G.S.R.HOTELS & ESTATES PVT. LTD., HYDERABAD 2 NOT. HE FURTHER SUBMITTED THAT THE TRIBUNAL HAD NOT ADJUDICATED UPON ALTERNATIVE PLEAS ADVANCED DURING THE COURSE OF HEARING OF THE APPEAL THAT COST INCURRED ON COMMON AREA SHOULD BE ALLOWED AS DEDUCTION UNDE R S.37(1) OF THE ACT, IF NOT, AS COST OF CONSTRUCTION OF SOLD AREA. 3. THE LEARNED DEPARTMENTAL REPRESENTATIVE ON THE CONTRARY, OPPOSED THE ABOVE CONTENTIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD, IN THE LIGHT OF THE AVERMENTS MADE IN THE PRESENT APPLICATION AND THE ORDER OF THE TRIBUNAL DATED 7.3.2014. WE FIND MERIT IN THE CONTENTIONS OF THE ASSESSEE DISCUSSED ABOVE, INASMUCH AS CERTAIN FACTUAL ASPECTS CANVASSED BY THE ASSESSEE AT THE TIME OF APPEAL HEARING NOT ONLY WITH REGARD TO REOPENING OF ASSESSMENT, BUT ALSO WITH REGARD TO TREATMENT TO BE GIVEN FOR THE COST INCURRED ON COMMON AREAS, MORE PARTICULARLY THE ALTERNATIVE PLEAS OF THE ASSESSEE FOR DEDUCTION UNDER S.37(1), IF NOT AS COST OF CONSTRUCTION OF SOLD AREA, HAVE NOT BEEN CONSIDERED. WE ACCORDINGLY RECALL THE EARLIER ORDER OF THE TRIBUNAL DATED 7.3.2014, AND DIRECT THE REGISTRY TO POST THE APPEAL OF THE ASSESSEE, ITA N O.1254/HYD/2013 FOR FRESH HEARING AND DISPOSAL. 5. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 28 TH AUG U S T, 2 014 SD/ - SD/ - (B.RAMAKOTAIAH) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER DT/ - 28 TH AUGUST, 2014 COPY FORWARDED TO: 1. M/S. G.S.R.HOTELS & ESTATES PVT. LTD., C/O. M/S. BRAHMAYYA & CO., CHARTERED ACCOUNTANTS, FLAT NOS.403 & 404, GOLDEN GREEN APARTMENTS, ERRAMANZIL COLONY, HYDERABAD 500082. MA NO.9 4/HYD/14 (IN ITA NO. 1 2 54 /HYD/201 3 ) M/S. G.S.R.HOTELS & ESTATES PVT. LTD., HYDERABAD 3 2. DY. COMMISSIONER OF INCOME - TAX CI RCLE 2(2), HYDERABAD 3. COMMISSIONER OF INCOME - TAX(APPEALS) III HYDERABAD 4. COMMISSIONER OF INCOME - TAX II, HYDERABAD 5 DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S