Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, HYDERABAD BENCHES “B”: HYDERABAD
Before: SMT. P. MADHAVI DEVI & SHRI B. RAMAKOTAIAH
PER Smt. P. MADHAVI DEVI, J.M. :
Brief facts of the case are that assessee (previously known as Kolan Engg. Construction Pvt. Ltd.,) had earlier filed appeals for the AYs.2003-04 to 2006-07 in ITA
ITA. No. 1349/Hyd/2015 :- 2 -: MA Nos. 7, 8 & 9/Hyd/16
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 assessee’s ground with regard to estimation of profit on different types of contracts executed by the assessee, has set aside the issue to the file of the Assessing Officer (AO), with a direction to complete the assessment Denovo in respect of all the assessment years before the Tribunal, keeping in view the order passed by the ITAT in the case of M/s. C. Eswara Reddy and Co., in ITA Nos. 668 to 670/Hyd/2009 dt. 31-01-2011, after giving assessee a fair opportunity of hearing. Consequent there to, the AO passed assessment order for the AY. 2006-07 and has arrived at the taxable income at Rs. 1,47,37,230/- as against the income arrived at Rs. 1,16,96,372/- u/s. 143(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.
Meanwhile, the assessee has also filed Miscellaneous Applications for all the assessment years seeking rectification of the mistakes apparent from record of the direction of the ITAT. The Ld. Counsel for the assessee submitted that the AO, while completing the assessment u/s. 143(3) of the Act had allowed the depreciation after estimation of income which has resulted in net income being arrived at Rs. 1,04,15,255/- and after giving effect to the order of ITAT, the net income has been arrived at Rs.1,47,37,230/-, which, according to him, is nothing but enhancement of income by the ITAT. He submitted
ITA. No. 1349/Hyd/2015 :- 3 -: MA Nos. 7, 8 & 9/Hyd/16
that u/s. 254 of the Act, the Tribunal cannot take away the benefit granted to assessee by the AO. In support of this contention, he placed reliance upon the decision of the Hon'ble Supreme Court of India in the case of MCorp Global (P.) Ltd., Vs. CIT (2009) [309 ITR 434] (SC). Ld. Counsel therefore prayed that the order of the Tribunal dt. 31-01-2011 be rectified and suitable direction may be given.
Ld.DR was also heard.
Having regard to the rival contentions and material on record, we find that the AO has allowed depreciation after arriving at the gross income by estimating the income, but while giving effect to the order of the ITAT, the income of the assessee has got enhanced. The Hon'ble Supreme Court 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 following the said decision, we modify the order of the Tribunal dt. 31-01-2011 by adding the following sentence to para 7 :
“….The consequential assessed income shall, however, be restricted to the assessed income u/s. 143(3) of the Act…..”
All the Miscellaneous Applications filed by assessee are thus allowed.
In view of the order even dated in Miscellaneous Application No.08/Hyd/2016, the appeal of the assessee
ITA. No. 1349/Hyd/2015 :- 4 -: MA Nos. 7, 8 & 9/Hyd/16
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, assessee’s appeal in ITA No. 1349/Hyd/2015 is treated as allowed for statistical purposes.
In the result, the Miscellaneous Applications are allowed and the assessee’s appeal is treated as allowed for statistical purposes.
Order pronounced in the open court on 28th March, 2018
Sd/- Sd/- (B. RAMAKOTAIAH) (P. MADHAVI DEVI) ACCOUNTANT MEMBER JUDICIAL MEMBER
Hyderabad, Dated 28th March, 2018 TNMM
ITA. No. 1349/Hyd/2015 :- 5 -: MA Nos. 7, 8 & 9/Hyd/16
Copy to :
M/s. Upkar Infra Projects Pvt. Ltd., C/o. S. Rama Rao, Advocate, Flat No. 102, Shriya’s Elegance, 3-6-643, Street No. 9, Himayat Nagar, Hyderabad.
Dy. Commissioner of Income Tax, Circle-3(3), Hyderabad.
Dy. Commissioner of Income Tax, Circle-2(1), Hyderabad.
CIT(A)-5 , Hyderabad.
Pr.CIT-5, Hyderabad.
D.R. ITAT, Hyderabad.
Guard File.