9911796707
TMI Blog2012 (11) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... e is no clarity as to what additional evidence has been entertained by the CIT(A) in violation of Rule 46A and such evidence relates to which of the issues - matter remanded to the file of the CIT(A) for fresh adjudication - Revenue's appeal allowed for statistical purposes - IT APPEAL NOS. 920 & 921 (HYD.) OF 2009 - - - Dated:- 18-5-2012 - D. KARUNAKARA RAO, SAKTIJIT DEY, JJ. V. Srinivas for the Appellant. N. Poornachandra Rao for the Respondent. ORDER D. Karunakara Rao, Accountant Member These two appeals by the Revenue are directed against similar but separate orders of the Commissioner of Income-tax (Appeals)-II, Hyderabad dated 29.5.2009 for assessment year 2005-06 and dated for assessment year 2006-07. Since t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's own case for the assessment year 2004-05, directed the assessing officer to adopt net profit at 8% on gross receipts, and determine assessable income without granting any further allowance therefrom. 5. Aggrieved by the relief granted by the CIT(A), Revenue is in appeal before us. 6. We heard both the parties and perused the material on record, including the orders of the lower authorities. We find that the CIT(A), while directing the assessing officer to determine the income of the assessee applying a rate of 8% on the gross receipts, followed the order of the Tribunal in assessee's own case for the assessment year 2004-05. A copy of the order of the Tribunal dated 24.10.2008, in ITA No. 522/Hyd/2008 of the Revenue and ITA No. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee failed to furnish the said evidence in spite of giving sufficient opportunities. 3. The CIT(A) having found that the disallowance was justified erred in restricting the disallowance to 10% from 20%." 9. Facts of the case in brief are that the assessee, filed return of income for the assessment year 2006-07, declaring a total income of Rs. 16,75,700. During the course of assessment proceedings the assessing officer called for various details, and after examining the same, assessing officer completed the assessment on a total income of Rs. 80,22,872, after making additions aggregating to Rs. 63,47,189 in the following manner- (Amount in Rupees) Total Income re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not fatal to the grant of depreciation on car. He observed that even a temporary registration would be good enough to claim depreciation on asset owned by the assessee and used in the business. He accordingly deleted the disallowance of depreciation on car made by the assessing officer. 11. Aggrieved by the reliefs granted by the CIT(A), Revenue is in appeal before us. 12. The Learned Departmental Representative submitted that there is violation of the provisions of S. 40(a)(ia) of the Act. If the same is considered, the percentage of profit for taxation must be much higher as assessed by the assessing officer. This aspect was not appreciated by the CIT(A). 13. On the other hand, the learned counsel for the assessee strongly sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing officer are inter-linked, and need to be examined together and on consideration of totality of facts and circumstances of the case. So far as disallowance under S. 40(a)(ia) is concerned, it is a case where payments have already been made, and that being so, the matter requires a relook in view of the recent binding decision of the Special Bench of the Tribunal (Visakhapatnam Bench) in the case of Merilyn Shipping Transports v. Addl. CIT [2012] 136 ITD 23/20 taxmann.com 244 (Visakh.) (SB), which was not available at the relevant point of time when the CIT(A) has passed the impugned order. So far as other two disallowances are concerned, the learned CIT(A) has given relief considering the disallowance sustained in terms of S. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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