Andhra Pradesh Capital Region Development Authority, Vijayawada V. ACIT, Circle-3(1), Vijayawada

SA 14/VIZ/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3929 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 year(s) 9 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 07-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T S N MURTHY
• Assessee Lawyers: S RAMA RAO
• Keywords: Application of stay
• Section: 143(3)

Judgement Text

SP NOS.11 TO 15 /VIZAG/2017 ANDHRA PRADESH CAPITAL REGION DEVELOPMENT AUTHORITY , VIJAYAWADA 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . . ' , % BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH, ACCOUNTANT MEMBER S.P.NOS.11 TO 15/VIZAG/2017 (ARISING OUT OF ITA NOS.394, 395, 396, 398 & 399/VI ZAG/2017) ( / ASSESSMENT YEARS: 2008-09, 2009-10, 2010-11, 2012-13 & 2013-14 RESPEC TIVELY) ANDHRA PRADESH CAPITAL REGION DEVELOPMENT AUTHORITY VIJAYAWADA ACIT, CIRCLE - 3(1) VIJAYAWADA [PAN NO. AAALV0067E ] ( ' / APPELLANT) ( ()' / RESPONDENT) / APPELLANT BY : SHRI S. RAMA RAO, AR / RESPONDENT BY : SHRI T.S.N. MURTHY, DR / DATE OF HEARING : 25.09.2017 / DATE OF PRONOUNCEMENT : 27.09.2017 / O R D E R PER D.S. SUNDER SINGH, ACCOUNTANT MEMBER: THESE STAY PETITIONS FILED BY THE ASSESSEE ARE DIR ECTED AGAINST ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) { CIT(A)}, VIJAYAWADA DATED 28.2.2017 FOR THE ASSESSMENT YEARS 2008-09, 2009- 10, 2010-11, 2012-13 & 2013-14. SP NOS.11 TO 15 /VIZAG/2017 ANDHRA PRADESH CAPITAL REGION DEVELOPMENT AUTHORITY , VIJAYAWADA 2 2. IN THIS CASE THE ASSESSEE IS AN URBAN DEVELOPMEN T AUTHORITY ESTABLISHED BY THE GOVERNMENT OF ANDHRA PRADESH UND ER ANDHRA PRADESH URBAN AREAS (DEVELOPMENT) ACT, 1975 FOR THE DEVELOPMENT OF URBAN AREAS WITHIN VIJAYAWADA-GUNTUR-TENALI-MANG ALAGIRI. SUBSEQUENTLY AFTER STATE BIFURCATION FOR THE PURPOS E DEVELOPMENT OF CAPITAL CITY FOR THE STATE OF ANDHRA PRADESH THE GOVERNMENT PROMULGATED ANDHRA PRADESH CAPITAL REGION DEVELOPME NT AUTHORITY ACT 2104 AND SEVERAL URBAN AREAS WERE ALLOTTED TO T HE AUTHORITY FOR UNDERTAKING THE DEVELOPMENTAL ACTIVITIES IN THE REG ION. THE SAID ACT PROVIDES FOR LEVY AND RECOVERY OF DEVELOPMENT F EE FROM THE PLOT OWNERS AND THE RESPONSIBILITY OF RECOVERY IS E NTRUSTED TO THE ASSESSEE. ACCORDING TO THE GOVERNMENT ORDER I.E, GO MS NO.530 MA&UD (H) DEPT. DATED 28-09-1998, THE ASSESSEE HAS TO RECOVER THE FEE LEVIED IN ACCORDANCE WITH THE PROVISIONS OF THE SAID ACT AND OUT OF THE AMOUNT SO RECOVERED, 85% OF THE AMOUNT I S TO BE EARMARKED FOR DEVELOPMENT OF THE URBAN AREAS AND 15 % CAN BE SPENT BY IT FOR ADMINISTRATION PURPOSES. FOR THIS PURPOSE , A SEPARATE ACCOUNT IS TO BE MAINTAINED AND THE AMOUNT HAS TO BE UTILIS ED ONLY FOR THE PURPOSE OF THE ACT. THE SAID GOVERNMENT ORDER ALSO PROVIDES THAT THE BALANCE OF 15% CAN BE UTILISED BY THE ASSESSEE AUTH ORITY FOR THE PURPOSE OF ADMINISTERING THE DEVELOPMENT AUTHORITY. SP NOS.11 TO 15 /VIZAG/2017 ANDHRA PRADESH CAPITAL REGION DEVELOPMENT AUTHORITY , VIJAYAWADA 3 3. IN VIEW OF THE GOVERNMENT ORDER ISSUED BY THE ST ATE GOVERNMENT, THE ASSESSEE HAS OFFERED 15% AS ITS INC OME AND SET APART 85% FOR THE DEVELOPMENT OF URBAN AREAS. THE A SSESSING OFFICER WHILE COMPLETING THE REGULAR ASSESSMENT AFT ER DULY CONSIDERING THE FACTS OF THE CASE ALLOWED THE CLAIM MADE BY THE ASSESSEE THAT THE AMOUNT SET APART DOES NOT REPRESE NT THE INCOME AND IS TO BE DEDUCTED BEFORE THE ACTUAL INCOME IS A RRIVED AT. THE ASSESSING OFFICER ORIGINALLY COMPLETED THE ASSESSME NT U/S 143(3) WITHOUT MAKING ANY SUCH ADDITION. 4. SUBSEQUENTLY, THE ASSESSMENTS WERE RE-OPENED AND COMPLETED U/S 143(3) R.W.S. 147 OF THE ACT AND RAISED THE FOLLOWI NG DEMANDS: ASSESSMENT YEAR INCOME ADMITTED (RS.) INCOME ASSESSED (RS.) TAX DETERMINED (RS.) 2008-09 NIL 14,84,59,690 9,30,06,391 2009-10 NIL 7,88,31,310 3,48,36,277 2010-11 NIL 10,06,26,340 4,13,15,403 2011-12 (-) 17,29,46,639 (-) 5,08,25,301 NIL 2012-13 (-) 4,51,09,451 9,05,94,066 3,80,68,480 2013-14 4,91,05,933 21,23,08,791 7,47,21,750 TOTAL 28,19,48,301 5. OUT OF THE TOTAL DEMAND OF RS.28,19,48,301/-, THE T AX COLLECTED/PAID WAS RS.16,25,70,272/- LEAVING BALANC E OF RS.11,93,78,029/-. THE ASSESSEE REQUESTED STAY OF THE DEMAND STATING THAT ASSESSEE IS HAVING FAIR CHANCES OF SUCCEEDING IN APPEAL. THE LD. A.R. FURTHER STATED THAT THE ASSESSEE IS A STATE GO VERNMENT ORGANISATION SP NOS.11 TO 15 /VIZAG/2017 ANDHRA PRADESH CAPITAL REGION DEVELOPMENT AUTHORITY , VIJAYAWADA 4 AND THE ASSESSEE HAS TO TAKE UP DEVELOPMENTAL WORK AS PER THE GO MS NO.530 MA &UD (H) DATED 28.9.1998. THEREFORE, IF T HE TAXES ARE PAID, THE ASSESSEE WOULD FACE SERIOUS HARDSHIP FOR IMPLEM ENTATION OF THE PROGRAMMES. THE LD. A.R. FURTHER ARGUED THAT THE A SSESSEE HAS ALREADY PAID MORE THAN 50% OF THE DEMAND AND BALANCE REQUES TED TO STAY. 6. ON THE OTHER HAND, THE LD. D.R. OPPOSED FOR THE STAY OF THE DEMAND. 7. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATER IALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHOR ITIES BELOW. WE HAVE CONSIDERED THE FACTS OF THE CASE. THE ASSESSE E IS AN AUTHORITY ESTABLISHED UNDER GOVERNMENT OF ANDHRA PRADESH FOR THE PURPOSE OF DEVELOPMENT OF THE URBAN AREAS. IN THIS CASE, OUT OF RS.28.19 CRORES OF DEMAND, A SUM OF RS.16.25 CRORES WAS ALREADY COLLEC TED/PAID BY THE ASSESSEE AND LEAVING BALANCE OF RS.11.93 CRORES. T HE ASSESSEE SUBMITTED THAT THE ASSESSEE IS HAVING FAIR CHANCES FOR SUCCEEDING IN APPEAL. CONSIDERING THE SUBMISSIONS MADE BY THE LD . A.R. AND THE FACT THAT ASSESSEE HAD ALREADY PAID 53% OF THE DEMAND, W E HOLD THAT THIS IS A FIT CASE FOR GRANT OF STAY, ACCORDINGLY, THE DEMA ND IS KEPT IN ABEYANCE FOR THE PERIOD OF 90 DAYS FROM THE DATE OF THIS ORD ER OR TILL DISPOSAL OF THE APPEAL, WHICHEVER IS EARLIER. SP NOS.11 TO 15 /VIZAG/2017 ANDHRA PRADESH CAPITAL REGION DEVELOPMENT AUTHORITY , VIJAYAWADA 5 8. THE APPEAL HEARING IS FIXED ON 30.11.2017 AND TH E A.R. OF THE ASSESSEE IS ADVISED NOT TO TAKE ANY ADJOURNMENT OF HEARING. IN CASE THE ASSESSEE TAKES THE ADJOURNMENT, THE STAY GRANTED WO ULD BE AUTOMATICALLY VACATED AND THE DEPARTMENT IS FREE TO COLLECT THE REVENUE ENFORCING THE PROVISIONS OF THE ACT. ACCORDINGLY, THE ASSESSEES REQUEST FOR STAY OF DEMAND IS CONSIDERED AND THE CASE IS FI XED FOR HEARING ON 30.11.2017. SINCE THE DATE OF HEARING IS PRONOUNCE D IN THE OPEN COURT, NOTICE TO BOTH PARTIES IS WAIVED. 9. IN THE RESULT, THE STAY PETITIONS FILED BY THE A SSESSEE ARE ALLOWED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT O N 27 TH SEPT17. SD/- SD/- ( . ) ( . . ' ) (V. DURGA RAO) (D.S. SUNDER SINGH) /JUDICIAL MEMBER /ACCOUNTANT MEMBER ! /VISAKHAPATNAM: % /DATED : 27.09.2017 VG/SPS )! *! /COPY OF THE ORDER FORWARDED TO:- 1. / THE APPELLANT ANDHRA PRADESH CAPITAL REGION DE VELOPMENT AUTHORITY, (FORMERLY VGTM URBAN DEVELOPMENT AUTHORI TY), UDA COMPLEX, LENIN CENTRE, GOVERNORPET, VIJAYAWADA-520 002. 2. / THE RESPONDENT ACIT, CIRCLE-3(1), VIJAYAWADA 3. + / THE CIT, VIJAYAWADA 4. + ( ) / THE CIT (A), VIJAYAWADA SP NOS.11 TO 15 /VIZAG/2017 ANDHRA PRADESH CAPITAL REGION DEVELOPMENT AUTHORITY , VIJAYAWADA 6 5. ! . , . , ! / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // SR. PRIVATE SECRETARY ITAT, VISAKHAPATNAM