Income Tax Appellate Tribunal - Hyderabad
Modi Shelters Pvt. Ltd., Hyderabad, ... vs Ito, Ward-16(1), Hyderabad, Hyderabad on 3 August, 2017
IN THE INCOME TAX APPELLATE TRIBUNAL
HYDERABAD BENCHES "B" : HYDERABAD
BEFORE SHRI D. MANMOHAN, VICE PRESIDENT
AND
SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER
ITA.No.672/Hyd/2015
Assessment Year 2011-2012
M/s. Modi Shelters Pvt Ltd., vs. Income Tax Officer,
8-2-120/76/A/B/16,17,18, Ward-16(1),
4th Floor, Ashoka Hitech Hyderabad.
Chambers, Road No.2,
Baniara Hills, Hyderabad-34.
PAN:AADCM8355N
(Appellant) (Respondent)
ITA.No.1159/Hyd/2015
Assessment Year 2011-2012
Income Tax Officer, vs. M/s. Modi Shelters Pvt Ltd,
Ward-16(4), 5-4-187/3&4, Soham Mansion,
Hyderabad. 3rd Floor, M.G. Road,
Secunderabad.
(Appellant) (Respondent)
For Assessee: Shri S. Rama Rao
For Revenue : Dr. L. Ramji Rao, DR
Date of Hearing : 03.08.2017
Date of Pronouncement : 03.08.2017
ORDER
PER D. MANMOHAN, VP.
These cross appeals arise out of the order passed by the Ld. CIT(A)-4, Hyderabad and they pertain to the assessment year 2011-2012. The appeal filed by the Revenue is barred by limitation by 101 days. At the time of hearing, Ld Counsel appearing for the assessee submitted that the tax effect being less than Rs. 10 lakhs, the Department is bound by Circular issued by the CBDT and ought not have preferred an appeal. At this juncture, Ld DR submitted that he has instructions from the 2 Assessing Officer to state that the appellant i.e., ITO, Ward-16(4), Hyderabad, seeks permission to withdraw the appeal filed by the Revenue. Under these circumstances, we permit the Revenue to withdraw its appeal and accordingly dismiss the same. Since the appeal is withdrawn, we are not going into the reasons for the delay in filing the appeal.
2. In so far as the appeal filed by the assessee, though there are six grounds, the issues involved therein pertain to the eligibility to claim exemption u/s 80IB(10) and applicability of the provisions of section 14A of the Act.
3. During the course of assessment proceedings the A.O., upon detailed examination, disallowed the claim of exemption u/s 80IB(10) of the Act, with regard to the income earned from Emerald Park Annex Project, on the ground that each unit exceeded the area of 1500 sq. ft. In fact, the A.O. relied upon the order of the ITAT in the assessee's own case for the assessment year 2008-2009. For the same reasons, Ld. CIT(A) confirmed the order passed by the A.O. and thus the assessee is in further appeal before the Tribunal.
4. At the time of hearing, Ld Counsel for the assessee fairly admitted that the issue is squarely covered by the orders passed by the ITAT in assessee's own case for the earlier assessment years 2008-09 to 2010-2011. Under these circumstances, we do not find any reason to interfere with the order passed by the Ld. CIT(A) and accordingly reject the grounds urged by the assessee.
5. With regard to the application of provisions of section 14A of the Act, the Ld Counsel's contention is that it had not earned any income, which do not form part of total income, from the investment during the year. He relied upon the order of the ITAT, Hyderabad Benches on this issue wherein it was held that in the absence of any exempt income, the provisions of section 14A r.w. Rule 8D cannot be made applicable in view the expression "in relation to income which does not form part of total income". The provisions of section 14A of the Act implies that earning of income in the year under consideration is a pre-requisite for application of provisions of section 14A of the Act. Ld DR fairly admitted that there are several decisions of the ITAT, Hyderabad Bench wherein, a similar view is taken. Ld Counsel relied upon the recent decision of 3 the Hon'ble Delhi High Court in the case of Cheminvest Limited vs. CIT (ITA No.749/2014, dated 02.09.2015). No contrary decision could be placed by the Ld DR. Under these circumstances, we are of the view that the Ld. CIT(A) erred in applying the provisions of section 14A in the instant case despite the fact that there is no exempt income earned by the assessee. Accordingly, Grounds no. 4 and 5 urged by the assessee are allowed.
6. In the result, as pronounced in the open court, the appeal filed by the assessee- company is partly allowed whereas, the appeal filed by the Revenue is dismissed as withdrawn.
7. Order pronounced in the open court on 03rd of August, 2017.
Sd/- Sd/- (CHANDRA POOJARI) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT Hyderabad, Dated: 03rd August, 2017 OKK, Sr.PS Copy to 1. Sri S. Ramarao, Advocate, Flat No.102,
Shriya's Elegance, 3-6-643, Street No.9, Himayatnagar, Hydrabad-500029.
2. Income Tax Officers, Ward-16(1) & 16(4), Hyderabad.
3. CIT(A)-4, Hyderabad.
4. Addl./ JCIT-16, Hyderabad.
5. D.R. ITAT "B" Bench, Hyderabad.
6. Guard File