AUTOZILLA SOLUTIONS PRIVATE LIMITED,,HYDERABAD vs. INCOME TAX OFFICER, WARD-1(2) , HYDERABAD

We notice at the outset that assessee’s instant appeal suffers from 31 days delay in filing before the ITAT. In this connection, the assessee has filed a petition for condonation along with an affidavit, wherein, inter-alia, it was submitted that since there was an ambiguity in the order of the CIT(A) in adjudicating the grounds of appeal, caused the impugned delay in filing the appeal belatedly. We rely on Case law Collector Land Acquisition Vs. Mst. Katiji & Ors, 1987 AIR 1353 (SC) and University of Delhi Vs. Union of India, Civil Appeal No. 9488 & 9489/2019 dated 17 December, 2019, hold that such a delay; supported by cogent reasons, deserves to be condoned so as to make way for the cause of substantial justice. We

Briefly the facts of the case are that the assessee company engaged in the business of automobiles and auto parts, filed its return of income for the AY 2016-17 on 17/10/2016 declaring total loss of Rs. 21,22,104/- under normal provisions and deemed total loss u/s 115JB at Rs. 19,49,531/-. Subsequently, the case was selected for limited scrutiny under CASS and notice u/s 143(2) was issued to the assessee on 18/07/2017 and other statutory notices were also issued to the assessee.

Aggrieved by the order of the AO, the assessee preferred an appeal before the CIT(A) by raising the following grounds of appeal: 1. The order of the AO is contrary to the law, facts and circumstances of the case.

The CIT(A) adjudicated the appeal of the assessee in respect of ground No. 3 and allowed the appeal of the assessee, but, did not discuss ground No. 2 raised before him.

Aggrieved by the order of the CIT(A), the assessee is in appeal before the ITAT by way of raising a ground that Ground No. 2 raised before the CIT(A) has not been adjudicated by him.

Before us, the ld. AR submitted that ground No. 2 raised before the CIT(A), has not been adjudicated by him and vehemently argued the case.

The ld. DR, on the other hand, relied on the order of the AO.

After hearing both the parties and perusing the material on record as well as the orders of revenue authorities, it is observed that the AO disallowed the share premium raised by the assessee u/s 56(2)(viib), while, the same was also added to the income of the assessee u/s 68 of the Act. We are of the view that once the addition made under one section of the IT Act, the same addition cannot be made under another section, which lead to double addition, which cannot be permissible in the IT Act. The CIT(A) has deleted the addition of Rs. 79,72,460/- u/s 56(2)(viib) by holding that the DCF method followed the assessee is correct. Therefore, it will be presumed that the addition deleted by the CIT(A) under one section out of two sections is accepted. When the Bench asked the ld. DR that whether any appeal filed against the order of CIT(A) and the ld. DR replied that the revenue has not filed any appeal against the order of CIT(A). The total amount received by the assessee was towards share capital including share premium and once the revenue has allowed/accepted the valuation method adopted by the assessee, then, the total amount received by the assessee is acceptable. Therefore, allowing part amount out of total amount is not correct. For this proposition, we rely on the decision of the ITAT,

In the result, appeal of the assessee is allowed in above terms. Pronounced in the open court on 12th January, 2022.