Quippo Valuers & Auctioneers (P) Ltd., New Delhi V. ACIT, Circle-20(2), New Delhi

CO 100/DEL/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 5163 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s) 13 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 24-09-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Assessment Year: misc
• Appeal Filed On: 11-05-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Depreciation; Set aside
• Section: 143(3)

Judgement Text

C.O. NO.-100/DEL/2018. QUIPPO VALUERS & AUCTIONEERS (P) LTD. PAGE 1 OF 10 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: F: NEW DELHI) (THROUGH VIDEO CONFERENCING) BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER C.O. NO:- 100/DEL/2018 (ARISING OUT OF ITA NO.- 1641/DEL/2018) ( ASSESSMENT YEAR: 2014-15) QUIPPO VALUERS & AUCTIONEERS (P) LTD., NEW DELHI. VS. ACIT, CIRCLE-20(2), NEW DELHI. APPELLANT RESPONDENT PAN NO: AABCH5726J ASSESSEE BY : MS. ALKA ARREN, ADV. REVENUE BY : SHRI SANJAY KAPOOR, CIT( DR) PER ANADEE NATH MISSHRA, AM (A) ASSESSMENT ORDER UNDER SECTION 143(3) OF INCOME TAX ACT, 1961 (I.T. ACT, FOR SHORT) WAS PASSED BY THE ASSESSING OFFICER ON 14.12.2016, WHEREIN TOTAL INCOME WAS ASSESSED AT RS. 107,30,100/- AS AGAINST RETURNED INCOME OF RS. 68,63,340/-. THE ADDITIONS MADE BY THE ASSESSING OFFICER INCLUDED DISALLOWANCE OF RS. 5,62,615/- CLAIMED BY THE ASSESSEE ON ACCOUNT OF LEAVE ENCASHMENT; RS. 79,062/- ON ACCOUNT OF DISALLOWANCE OF EXCESS DEPRECIATION ON COMPUTER SOFTWARE, AND RS. 32,25,000/- ON ACCOUNT OF DISALLOWANCE OF FACILITY SHARING EXPENSES. THE ASSESSEE FILED APPEAL AGAINST THE AFORESAID ASSESSMENT ORDER DATED 14.12.2016 BEFORE THE LD. COMMISSIONER OF C.O. NO.-100/DEL/2018. QUIPPO VALUERS & AUCTIONEERS (P) LTD. PAGE 2 OF 10 INCOME TAX (APPEALS) [LD. CIT(A), FOR SHORT]. THE ASSESSEES APPEAL WAS DECIDED BY THE LD. CIT(A) VIDE APPELLATE ORDER DATED 22.12.2017; WHEREIN THE AFORESAID DISALLOWANCES AMOUNTING TO RS. 79,062/- AND RS. 32,25,000/- WERE DELETED. HOWEVER, LD. CIT(A) CONFIRMED THE AFORESAID DISALLOWANCE OF RS. 5,62,615/-. REVENUE FILED APPEAL IN INCOME TAX APPELLATE TRIBUNAL (ITAT, FOR SHORT) AGAINST THE AFORESAID APPELLATE ORDER DATED 22.12.2017 OF LD. CIT(A), VIDE ITA NO. 1641/DEL/2018. THE PRESENT CROSS OBJECTION (C.O., FOR SHORT) BEFORE US, WAS FILED BY THE ASSESSEE IN RESPECT OF REVENUES AFORESAID APPEAL VIDE ITA NO.- 1641/DEL/2018. VIDE ORDER DATED 24.08.2018 OF CO-ORDINATE BENCH OF ITAT, DELHI, REVENUES APPEAL WAS DISMISSED. HOWEVER, AFORESAID C.O. FILED BY THE ASSESSEE REMAINED TO BE DECIDED. THIS ORDER IS NOW BEING PASSED IN RESPECT OF THE AFORESAID C.O. FILED BY THE ASSESSEE. GROUNDS TAKEN BY THE ASSESSEE IN THIS CROSS OBJECTION ARE AS UNDER: 1.0 THAT ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS [HERE-IN-AFTER REFERRED TO AS LD. CIT(APPEALS) ERRED IN CONFIRMING THE DISALLOWANCE OF PROVISION FOR LEAVE ENCASHMENT OF RS. 5,62,615/- IN COMPUTING TOTAL INCOME UNDER NORMAL PROVISIONS OF THE ACT. 2.0 THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND WITHOUT PREJUDICE TO GROUND NO. 1 TAKEN HERE-IN-ABOVE, THE LD. CIT (APPEALS) FAILED TO ADJUDICATE THE GROUND IN RESPECT OF ALLOWING DEDUCTION OF RS. 3,93,248/- TOWARDS LEAVE ENCASHMENT PAID DURING THE YEAR OUT OF PROVISIONS MADE IN EARLIER YEARS. 3.0 THAT THE RESPONDENT CRAVES LEAVE, TO ADD, TO AMEND, MODIFY, RESCIND, SUPPLEMENT OR ALTER ANY OF THE GROUNDS STATED HERE- IN-ABOVE EITHER BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. C.O. NO.-100/DEL/2018. QUIPPO VALUERS & AUCTIONEERS (P) LTD. PAGE 3 OF 10 (C) ON THE DATE OF HEARING ON 22.09.2021, A REQUEST WAS MADE FROM THE REVENUES SIDE TO ADJOURN THE HEARING ON THE GROUND THAT THE LD. SR. DR MR. AVIKAL MANU, WHO WAS TO REPRESENT FOR REVENUE FOR ASSISTING THE BENCH WAS NOT AVAILABLE ON ACCOUNT OF LEAVE. HOWEVER, THE LD. COUNSEL FOR ASSESSEE OPPOSED THE REQUEST FOR ADJOURNMENT MADE FROM THE REVENUES SIDE. THE LEARNED COMMISSIONER OF INCOME TAX (DEPARTMENTAL REPRESENTATIVE) [LD. CIT(DR), FOR SHORT] WHO WAS PRESENT , AGREED TO ASSIST THE BENCH ON BEHALF OF REVENUE. THEREFORE, REVENUES REQUEST FOR ADJOURNMENT WAS REJECTED AND THE HEARING WAS PROCEEDED WITH. (D) AT THE TIME OF HEARING, THE LD. COUNSEL FOR ASSESSEE SUBMITTED THAT GROUND NO. 1 OF THE CROSS OBJECTION WAS NOT PRESSED. ACCORDINGLY, THE FIRST GROUND IN THIS CROSS OBJECTION IS HEREBY DISMISSED, BEING NOT PRESSED. (D.1) IN RESPECT OF THE 2 ND GROUND IN THIS CROSS OBJECTION, THE LD. COUNSEL FOR ASSESSEE REFERRED TO THE AFORESAID APPELLATE ORDER DATED 22.12.2017 OF THE LD. CIT(A); AND DREW OUR ATTENTION TO THE FACT THAT THE ISSUE REGARDING ALLOWABILITY OF RS. 3,93,248/- WAS SPECIFICALLY RAISED IN GROUND 3 OF APPEAL IN THE APPEAL FILED BY THE ASSESSEE BEFORE LD. CIT(A). SHE FURTHER DREW OUR ATTENTION TO THE FACT THAT LD. CIT(A) DID NOT DECIDE THIS ISSUE, DESPITE SPECIFIC GROUND BEING RAISED TO THAT EFFECT. THE LD. COUNSEL FOR ASSESSEE SUBMITTED BEFORE US THAT THIS ISSUE SHOULD BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO ALLOW THIS AMOUNT ON PAYMENT BASIS. THE LD. COUNSEL FOR ASSESSEE FURTHER SUBMITTED THAT THE PAYMENT OF THE AMOUNT OF RS. 3,93,248/- BY THE ASSESSEE HAS ALREADY BEEN REPORTED BY THE AUDITOR IN THE AUDIT REPORT, WHICH WAS BEFORE THE ASSESSING OFFICER. C.O. NO.-100/DEL/2018. QUIPPO VALUERS & AUCTIONEERS (P) LTD. PAGE 4 OF 10 (D.1.1) THE LD. CIT(DR) AGREED WITH THE SUBMISSION MADE BY THE LD. COUNSEL THAT THE ISSUE SHOULD BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ORDER. HOWEVER, HE SUBMITTED THAT NO SPECIFIC DIRECTIONS SHOULD BE ISSUED FOR ALLOWING THE AMOUNT. HE SUBMITTED THAT THE ASSESSING OFFICER MAY BE DIRECTED TO PASS A FRESH ORDER IN ACCORDANCE WITH LAW AFTER VERIFICATION OF THE FACTS. (D.2) WE HAVE HEARD BOTH SIDES. WE HAVE PERUSED THE MATERIALS AVAILABLE ON RECORD, PERTAINING TO THE PRESENT CROSS OBJECTION. THERE IS NO DISPUTE THAT THE ASSESSEE HAD RAISED SPECIFIC GROUND REGARDING ALLOWABILITY OF AFORESAID AMOUNT OF RS. 3,93,248/-, IN APPEAL FILED BY THE ASSESSEE BEFORE THE LD. CIT(A). THERE IS ALSO NO DISPUTE THAT THIS GROUND REGARDING ALLOWABILITY OF AFORESAID RS. 3,93,248/- WAS NOT DECIDED BY THE LD. CIT(A). FOR EASE OF REFERENCE, THE RELEVANT PORTION OF THE AFORESAID ORDER DATED 22.12.2017 OF THE LD. CIT(A) IS REPRODUCED AS UNDER: C.O. NO.-100/DEL/2018. QUIPPO VALUERS & AUCTIONEERS (P) LTD. PAGE 5 OF 10 C.O. NO.-100/DEL/2018. QUIPPO VALUERS & AUCTIONEERS (P) LTD. PAGE 6 OF 10 C.O. NO.-100/DEL/2018. QUIPPO VALUERS & AUCTIONEERS (P) LTD. PAGE 7 OF 10 C.O. NO.-100/DEL/2018. QUIPPO VALUERS & AUCTIONEERS (P) LTD. PAGE 8 OF 10 (D.2.1) THUS, THERE IS NO DISPUTE THAT THE ISSUE REGARDING ALLOWABILITY OF AFORESAID AMOUNT OF RS. 3,93,248/- WAS NOT CONSIDERED OR DECIDED BY THE LD. CIT(A). FROM PERUSAL OF RECORDS, WE FIND THAT THERE IS NOTHING TO SHOW THAT THE ISSUE REGARDING ALLOWABILITY OF AFORESAID AMOUNT OF RS. 3,93,248/- WAS DECIDED OR EVEN CONSIDERED BY THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS. THUS, IT SEEMS THAT NEITHER THE LEGAL ASPECTS NOR THE FACTUAL ASPECTS REGARDING ALLOWABILITY OF AFORESAID RS. 3,93,248/- HAS BEEN CONSIDERED OR DECIDED BY EITHER THE ASSESSING OFFICER OR THE LD. CIT(A). ALTHOUGH, THE LD. COUNSEL FOR ASSESSEE HAS SUBMITTED THAT THE PAYMENT OF RS. 3,93,248/- HAS BEEN REPORTED BY THE AUDITOR IN THE AUDIT REPORT, WE FIND THAT THE COPY OF THE AUDIT REPORT HAS NOT BEEN FILED IN INCOME TAX APPELLATE TRIBUNAL (ITAT, FOR SHORT) BY EITHER SIDE; AND THUS, IT IS NOT AVAILABLE ON THE RECORDS OF ITAT. IN THE SPECIFIC FACTS AND CIRCUMSTANCES OF THE CASE, THEREFORE, AND IN VIEW OF THE FOREGOING; WE ARE INCLINED TO AGREE WITH THE SUBMISSION OF THE LD. CIT(DR) TO SET ASIDE THE ISSUE IN DISPUTE TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ORDER IN ACCORDANCE WITH LAW, AFTER VERIFICATION OF FACTS, ON THE SPECIFIC ISSUE REGARDING ALLOWABILITY OF AFORESAID AMOUNT OF RS. 3,93,248/-. ACCORDINGLY, WE SET ASIDE THE ISSUE REGARDING ALLOWABILITY OF RS. 3,93,248/-, RAISED BY THE ASSESSEE IN THE SECOND GROUND IN THE PRESENT CROSS OBJECTION BEFORE US, TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ORDER IN ACCORDANCE WITH LAW, AFTER VERIFICATION OF FACTS, ON THE SPECIFIC ISSUE REGARDING ALLOWABILITY OF AFORESAID AMOUNT OF RS. 3,93,248/-. THE ASSESSING OFFICER IS DIRECTED TO PROVIDE REASONABLE OPPORTUNITY TO THE ASSESSEE BEFORE PASSING FRESH ORDER ON THIS ISSUE. ALL LEGAL AND FACTUAL ISSUES ARE LEFT OPEN FOR BOTH SIDES. THE SECOND GROUND RAISED IN THIS CROSS OBJECTION IS DECIDED IN ACCORDANCE WITH THE AFORESAID DIRECTIONS. FOR STATISTICAL PURPOSES, THIS GROUND IS PARTLY ALLOWED. C.O. NO.-100/DEL/2018. QUIPPO VALUERS & AUCTIONEERS (P) LTD. PAGE 9 OF 10 IN THE RESULT, THIS CROSS OBJECTION BY ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 24.09.2021. SD/- SD/- (AMIT SHUKLA) (ANADEE NATH MISSHRA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 24.09.2021 (POOJA) COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI C.O. NO.-100/DEL/2018. QUIPPO VALUERS & AUCTIONEERS (P) LTD. PAGE 10 OF 10 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER