Hyderabad Bottling Company Ltd, Hyderabad, Hyderabad V. ACIT, Circle-2(2), Hyderabad, Hyderabad

MA 94/HYD/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3614 (ITAT-HYDERABAD)
• Duration Of Justice: 2 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-11-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 27-11-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 08-09-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B KURMI NAIDU
• Assessee Lawyers: V SIVA KUMAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORESHRI B.RAMAKOTAIAH, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER MA NO.94/HYD/2015 (IN WTA NO.29/HYD/2013) : ASSESSMENT YEAR 2003-04 MA NO.95/HYD/2015 (IN WTA NO.30/HYD/2013) : ASSESSMENT YEAR 2004-05 M/S. HYDERABAD BOTTLING COMPANY LTD., HYDERABAD (PAN - AAACH 2680 L) V/S ASST. COMMISSIONER OF WEALTH TAX, CIRCLE 2(2), HYDERABAD (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI V.SIVA KUMAR RESPONDENT BY : SHRI B.KURMI NAIDU DATE OF HEARING 27.11.015 DATE OF PRONOUNCEMENT 27.11.2015 O R D E R PER SAKTIJIT DEY, JUDICIAL MEMBER : IN THESE APPLICATIONS, THE ASSESSEE SEEKS RECTIFI CATION OF MISTAKES STATED TO HAVE CREPT INTO THE ORDER DATED 29.4.2015 PASSED BY THIS TRIBUNAL IN WTA NOS.29 AND 30/HYD/2013 FOR ASSESSMENT YEARS 20 03-04 AND 2004-05. 2. AS COULD BE SEEN FROM THE PERUSAL OF THE MISCE LLANEOUS APPLICATIONS, GRIEVANCE OF THE ASSESSEE IS AGAINST THE OBSERVATION MADE BY THIS TRIBUNAL IN PARA 11 OF ITS ORDER DATED 29.4.2015 TH AT THERE IS NO APPROVAL BY THE APPROPRIATE AUTHORITY FOR THE CONSTRUCTION TO T AKE AWAY THE ASSET IN QUESTION FROM THE PURVIEW OF URBAN LAND IN TERMS O F EXPLANATION TO S.2(EA) OF EH WEALTH TAX ACT. IT IS THE CONTENTION OF THE LEAR NED AUTHORISED REPRESENTATIVE THAT THIS PARTICULAR OBSERVATION OF THE TRIBUNAL CONSTITUTES A MISTAKE APPARENT FROM RECORD, AS THE TRIBUNAL RENDE RED SUCH FINDING OVERLOOKING THE RELEVANT MATERIAL ON RECORD. IN TH IS CONTEXT, ASSESSEE HAS PLACED RELIANCE UPON A DECISION OF THE TRIBUNAL MUM BAI BENCH IN THE CASE OF MA NOS.94-95/HYD/2015 (IN WTA NOS.29 & 30/HYD/2013) M/S. HYDERABAD BOTTLING COMPANY LTD., HYDERABAD 2 GRASIM INDUSTRIES LTD. (MA NO.247/MUM/2010(ARISING OUT OF ITA NO.6253/MUM/99) DATED 25.3.2011). CONTINUING FUR THER, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED, SINCE THE ASSESSEE IS NOT ABLE TO OBTAIN ANY INFORMATION FROM THE BUILDER/DEVELOPER WITH REGARD TO THE APPROVAL OBTAINED , THE TRIBUNAL COULD HAVE DIRECTED THE ASSESSING OFFI CER TO VERIFY THIS FACT FROM THE CONCERNED ASSESSING OFFICER HAVING JURISDICTION OVER THE BUILDER/DEVELOPER. 3. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON TH E OTHER HAND, SUBMITTED THAT AS THERE IS NO MISTAKE APPARENT FROM THE FACE OF THE RECORD, THE APPLICATIONS FILED BY THE ASSESSEE ARE NOT MAINTAIN ABLE. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF THE PART IES AND PERUSED THE MATERIALS ON RECORD. AS COULD BE SEEN, THE ASSE SSEE IS AGGRIEVED BY THE OBSERVATIONS OF THE TRIBUNAL THAT IN THE ABSENCE OF ANY APPROVAL FROM THE APPROPRIATE AUTHORITY FOR THE CONSTRUCTION OF THE B UILDING, IT CANNOT BE EXCLUDED FROM THE DEFINITION OF URBAN LAND UNDER S.2(EA) EXP LANATION 1(B) OF WT ACT. ON A CAREFUL READING OF THE OBSERVATION OF THE TRI BUNAL IN PARA 11 OF THE ORDER, IT IS PERTINENT TO OBSERVE THAT NEITHER BEFO RE THE DEPARTMENTAL AUTHORITIES NOR BEFORE THE TRIBUNAL, AT THE TIME OF HEARING OF APPEALS, THE ASSESSEE WAS ABLE TO FURNISH ANY EVIDENCE TO DEMONS TRATE THAT THE CONSTRUCTION MADE WAS ON THE APPROVAL OF THE APPROP RIATE AUTHORITY. IN FACT, THE TRIBUNAL HAD RECORDED A SPECIFIC FINDING OF FAC T THAT ON A SPECIFIC QUERY FROM THE BENCH, THE LEARNED COUNSEL APPEARING FOR T HE ASSESSEE HAS ADMITTED THAT THERE WAS NO SUCH APPROVAL FROM THE APPROPRIAT E AUTHORITY. CONSIDERING SUCH SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSE SSEE AS WELL AS THE MATERIAL AVAILABLE ON RECORD, NO MISTAKE APPARENT FROM RECO RD CAN BE ATTRIBUTED TO THE OBSERVATION OF THE TRIBUNAL. WHEN THE ASSESSEE CLAI MS A PARTICULAR DEDUCTION, ONUS IS ON IT TO BRING FACTS AND MATERIAL ON RECORD TO SUBSTANTIATE SUCH CLAIM. THUS, SINCE THE ADMITTED FACTUAL POSITION AS EMERGI NG FROM RECORD IS THAT THE ASSESSEE HAS FAILED TO DEMONSTRATE THAT APPROPRIATE AUTHORITY HAS GRANTED APPROVAL TO THE CONSTRUCTION MADE BY FURNISHING ANY DOCUMENTARY EVIDENCE, MA NOS.94-95/HYD/2015 (IN WTA NOS.29 & 30/HYD/2013) M/S. HYDERABAD BOTTLING COMPANY LTD., HYDERABAD 3 EVEN AT THIS STAGE, WE DO NOT FIND ANY MISTAKE APPA RENT FROM RECORD IN THE ORDER OF THE TRIBUNAL. IN THE CIRCUMSTANCES, WE FIN D THESE APPLICATIONS OF THE ASSESSEE TO BE DEVOID OF MERIT, AND ACCORDINGLY DIS MISS THE SAME. 5. IN THE RESULT, THESE TWO APPLICATIONS OF THE A SSESSEE ARE DISMISSED. PRONOUNCED IN THE COURT ON 27 TH NOVEMBER, 2015 SD/- SD/- (B.RAMAKOTAIAH) (SAKTIJIT DEY) ACCOUNTANT MEMBER. JUDICIAL MEMBER DT/- 27 TH NOVEMBER, 2015 COPY FORWARDED TO: 1. M/S. HYDERABAD BOTTLING COMPANY LTD., PLOT NO.40, I DA BALANAGAR, HYDERABAD 2. ASST. COMMISSIONER OF WEALTH TAX CIRCLE 2(2), HYDER ABAD 3. 4. COMMISSIONER OF WEALTH TAX (APPEALS) III, HYDERABAD COMMISSIONER OF WEALTH-TAX-II, HYDERABAD 5. DEPARTMENTAL REPRESENTATIVE ITAT, HYDERABAD B.V.S.