Itta/124/2013 Of The Commissioner Of Income Tax v. M/S Shree Sai Plaza

THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTISENGUPTA AND THE HON’BLE Ms. JUSTICE G. ROHINI INCOME TAX TRIBUNAL APPEAL NO.124 OF 2013 DATED:27.6.2013 Between: The Commissioner of Income TaxAayakar Bhavan22, K.T. RoadTirupati … Appellant And M/s. Shree Sai PlazaFlat No.301, Crescent ClassicNo.105, Wheeler Road Exten.,Opp. ITC FactoryBangalore … Respondent THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTISENGUPTA AND THE HON’BLE Ms. JUSTICE G. ROHINI I.T.T.A NO.124 OF 2013 JUDGMENT:(per the Hon’ble the Chief Justice Sri Kalyan Jyoti Sengupta) This appeal is sought to be admitted on the following suggestedquestions of law. 1.“In the facts and circumstances of the case, whetherthe Tribunal is correct in law to allow the appeal of therespondent assessee by deleting the disallowancemade by the Assessing Officer, in terms of Section40A(3) of Income Tax Act, without due appreciation ofrelevant material facts on record?the Tribunal is correct in law to allow the appeal of therespondent assessee by deleting the disallowancemade by the Assessing Officer, in terms of Section40A(3) of Income Tax Act, without due appreciation ofrelevant material facts on record? 2.In the facts and circumstances of the case, whetherthe disallowance made by the Assessing Officer interms of Section 40A(3) of Income Tax Act, which ismandatory nature, is not sustainable in law aserroneous held by the Tribunal?the disallowance made by the Assessing Officer interms of Section 40A(3) of Income Tax Act, which ismandatory nature, is not sustainable in law aserroneous held by the Tribunal? 3.Whether the order of the Tribunal being contrary tothe material facts on record and section 40A(3) ofIncome Tax Act, is not erroneous and perverse in lawand liable to be set aside?”the material facts on record and section 40A(3) ofIncome Tax Act, is not erroneous and perverse in lawand liable to be set aside?” We have heard the learned counsel for the appellant and gonethrough the impugned judgment and order of the learned Tribunal. In this case the assessing officer has not relied upon books ofaccount to determine the income of the assessee, and assessment hasbeen made on estimate basis. Therefore, deduction under Section 29of the Income Tax Act is deemed to have been made. This legal issuehas been settled by this Court in the case of Indwell Construction v. C.I.T.[[1]]. The learned Tribunal observed that present case is coveredby the decision of this Court in Indwell Construction (supra). However, learned counsel for the appellant, citing the aforesaid decision,contends that the same does not apply to this case. While reiteratingthe fact as recorded by the learned Tribunal, we are of the view that theratio of the said judgment has got full application to the present case. Therefore, the learned Tribunal has not decided the legal issue in awrong way. We do not find any reason to interfere with the impugnedorder. The appeal is accordingly dismissed. No order as to costs. ________________________ K.J. SENGUPTA, CJ ______________________ G. ROHINI, J 27.6.2013 bnr [1][1998] 232 ITR 776