Commissioner of Income Tax -VI vs. M/s. Mythri Constructions,

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH, HYDERABAD

THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE Ms. JUSTICE G. ROHINI

I.T.T.A. No. 598 of 2012

DATE: 17.07.2013

Between:

The Commissioner of Income Tax-VI Hyderabad. … Appellant

And

M/s. Mythri Constructions, Hanamkonda, Warangal. … Respondent

This court made the following:

THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE Ms. JUSTICE G. ROHINI

I.T.T.A. No. 598 of 2012

JUDGMENT: (Per the Hon’ble the Chief Justice Sri Kalyan Jyoti Sengupta) We have heard Sri S.R. Ashok, learned senior counsel for the appellant and gone through the impugned judgment and order of the learned Tribunal. The present appeal is sought to be admitted on the following suggested questions of law. “(A) Whether on the facts and circumstances of the case, the Appellate Tribunal is justified in setting aside the addition of unexplained expenditure under Section 69-C of the Income Tax Act?

(B) Whether the Appellate Tribunal is justified in telescoping the unexplained expenditure into cost of construction, in spite of the cost of construction being determined by the Assessing Officer on the basis of admitted case of the assessee in the course of survey?

(C) Whether telescoping of the unexplained expenditure into cost of construction, in addition to what has been claimed by the assessee, can be said to be based on material on record?”

We have seen the fact finding of the learned Tribunal. The learned Tribunal on fact found as follows:

“On carefully going through the above working made by the A.O. in respect of cost of construction, we find that the A.O. has omitted to consider the expenditure made by the assessee by way of cash to the tune of Rs.27,31,648/-. If the same is taken as cost of construction, the cost and construction per sft., will go up by about Rs.75/- and ultimately the gross profit of the entire construction will

go down. Instead of doing so, the A.O. has considered the unexplained expenditure at Rs.27,31,648/- and added the same under Sec. 69-C.”

Thereafter, the learned Tribunal came to the conclusion, in our considered opinion rightly so, that the Assessing Officer is not right in making the addition of Rs.27,61,648/- under Section 69-C which was restricted to Rs.20,61,648/- by the Commissioner of Income Tax (Appeals). In view of the aforesaid situation, we do not find any merit in the appeal, as no question of law is said to be involved for the decision of this Court, as already on fact the learned Tribunal has found that the Commissioner of Income Tax (Appeals) has rightly applied the law. Accordingly, the appeal is dismissed.

______________________ K.J. SENGUPTA, CJ

_______________ G. ROHINI, J

Date: 17.07.2013 ES