DCIT, New Delhi V. M/s. S.N.C. Lavalin Infrastructure (P) Ltd., New Delhi

CO 12/DEL/2017

AI Insights

The case involves SNC Lavalin Infrastructure (P) Ltd., which filed Cross Objections against the grounds of appeal raised by the Revenue in ITA No.1425/Del/2014 for the Assessment Year 2010-11. The Cross Objections were initially dismissed as time-barred but were later restored for fresh adjudication. The main contention in the Cross Objections was the deduction of Rs. 18,59,657 for GIT Infra expenses, which the assessee argued should be allowed in AY 2010-11 as the expenses were debited in the P&L A/c for AY 2011-12. The Tribunal, however, dismissed the Cross Objections on the grounds that they were not maintainable under the specific provisions of the Income Tax Act, as they were based on an order from a different assessment year (AY 2011-12).

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 115814 (ITAT-DELHI)
• Duration Of Justice: 6 year(s) 2 month(s) 17 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 10-04-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 26-03-2023
• Assessment Year: 2010-2011
• Appeal Filed On: 23-01-2017
• Other Referred Cases: Collector Land Acquisition, Anantnag & Anr. vs Mst. Katiji & Ors
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: S.K. AGGARWAL
• Keywords: Tax effect; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : G : NEW DELHI BEFORE SHRI C.M. GARG, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER CO No.12/Del/2017 (ITA No.1425/Del/2014) Assessment Year: 2010-11 SNC Lavalin Infrastructure (P) Ltd., (earlier known as Span Consultants Pvt. Ltd.), 601, 6 th Floor, DLF Tower, Shivaji Marg, Moti Nagar, New Delhi. PAN: AAACS0950L Vs. DCIT, Circle 9(1), New Delhi. (Cross Objector) (Respondent) Assessee by : Shri S.K. Aggarwal, CA Revenue by : Ms Meenakshi Dohre, Sr. DR Date of Hearing : 27.03.2023 Date of Pronouncement : 11.04.2023 ORDER PER C.M. GARG, JM: This Cross Objection has been filed by the assessee against the grounds of appeal raised by the Revenue in ITA No.1425/Del/2014 for AY 2010-11, which was dismissed vide order dated 13.08.2018 on account of low tax effect. [ 2. First of all, it is relevant to mention that earlier these cross objection was dismissed by the Tribunal in limine treating the same as time barred by order dated 04.09.2018. Subsequently, the assessee filed MA No.830/Del/2019 against the said order and the Cross Objection of the assessee was restored for adjudicating afresh CO No.12//Del/2017 (ITA No.1425/Del/2014) 2 and the Revenue was allowed to raise legal objection regarding time barring issue. Now, this Bench heard the cross objection of the assessee along with the issue of condonation of delay of 311 days. 3. The cross objections of the assessee read as follows:- “1. That on the facts and circumstances of the case and in law, the deduction for Rs. 18,59,657 should be allowed in AY 2010-11, being the monthly/ annual usage charges of internal server/ software on per seat basis etc. (called as GIT Infra expenses) paid to SNC-Lavalin Inc, Canada debited under the head ‘Computer, software, network’ in the P&L A/c for AY 2011-12, since, (i) During AY 2011-12, the assessee received debit notes for GIT Infra expenses of Rs. 18,59,657 pertaining to AY 2010-11, which was debited by the assessee in the P&L A/c for AY 2011-12 as prior period expenses. As the same crystallized during AY 2011-12, it should be allowed as deduction in AY 2010-11; (ii) The Hon’ble CIT(A)-8, New Delhi vide order dated November 11, 2016 for AY 2011-12 has upheld the order the Ld AO and held that GIT Infra expenses of Rs. 18,59,657 is not allowable during AY 2011-12 since it pertains to earlier period. The assessee craves leave to add, supplement, amend, vary, withdraw or otherwise modify the grounds mentioned herein above at or before the time of hearing. The assessee prays for appropriate relief based on the said grounds of appeal and the facts and circumstances of the case.” Issue of condonation of delay 4. As per the affidavit filed by the Director of the assessee company, it is discernible that when the assessee received the order of the ld.CIT(A)-8 dated 11.11.2016 for AY 2011-12, then, it was the suggestion of the tax consultant to file this cross objection and the assessee did file the cross objection on 24.01.2017. The ld. AR submitted that the copy of grounds of appeal filed by the Revenue was CO No.12//Del/2017 (ITA No.1425/Del/2014) 3 obtained by the assessee after receipt of notice dated 19.01.2016, but, the date of receipt of grounds of appeal is not available in the records of the assessee. However, the assessee filed cross objection belatedly by the delay of 311 days. The ld. AR urged that in view of the judgement of the Hon’ble Supreme Court in the case of Collector Land Acquisition, Anantnag & Anr. vs Mst. Katiji & Ors, judgement dated 19 February, 1987, reported in 1987 AIR 1353, the delay of 311 days may kindly be condoned as the delay was caused due to the reasons beyond the control of the assessee. 5. The ld. CIT-DR strongly opposed the condonation of delay. 6. On careful consideration of the Cross Objections raised by the assessee as well as the factual position noted by us hereinabove, it is clear that the assessee received notice dated 19.01.2016 issued by the Registry of this Tribunal and till date he was not in receipt of grounds of the Revenue and Form No.36. Finally, it is noted that the assessee received notice of hearing pertaining to the Revenue appeal on 19.01.2016. The Cross Objection should have been filed within the prescribed time limit, but, the assessee could file the same on 24.01.2017 by the delay of 311 days. From the construction of cross objections of the assessee as noted above, it is clearly discernible that the assessee on receipt of order of CIT(A) for AY 2011-12, on 23.12.2016 decided to file Cross Objections for present AY 2010-11. Therefore, under the totality of the facts and circumstances as noted above, which has not been controverted by the ld. Sr. DR, we find that there is sufficient cause for filing delayed cross objection, therefore, respectfully following the proposition rendered by the Hon’ble Supreme Court in the case of Collector Land Acquisition, Anantnag & Anr. vs CO No.12//Del/2017 (ITA No.1425/Del/2014) 4 Mst. Katiji & Ors (supra), the delay of 311 days in filing cross objection by the assessee before this Tribunal is condoned and the Cross Objections are admitted for adjudication. 7. The ld. AR, pressing into service the Cross Objections of the assessee, submitted that the ld.CIT(A)-8, New Delhi, vide order dated 11.11.2016 for AY 2011- 12, has upheld the order of the AO and recorded a finding that GIT Infra expenses of Rs.18,59,657/- is not allowable during AY 2011-12 since it pertained to earlier assessment period, i.e., present AY 2010-11, the same may kindly be allowed in the present assessment year. 8. Replying to the above, the ld. Sr. DR strongly opposed the consideration of cross objection of the assessee and submitted that in view of the provisions of sub- section (4) of section 253 of the Act, the cross objection of the assessee are not maintainable in the present AY 2010-11. 9. On careful consideration of the above submissions, first of all, we find that the legislature in its wisdom has allowed opportunity to the assessee a well as the AO to file a memorandum of cross objection, verified in the prescribed manner against any part of the order of the CIT(A) and it has been provided that such memorandum shall be disposed of by the Tribunal as if it were an appeal presented within time specified in sub-section (3) of section 253. For the sake of completeness of this order, we find it necessary to reproduce sub-section (4) of section 253 of the Act which reads as follows:- “(4) The Assessing Officer or the assessee, as the case may be, on receipt of notice that an appeal against the order of the Commissioner (Appeals), has been preferred under sub-section (1) or sub-section (2) by the other CO No.12//Del/2017 (ITA No.1425/Del/2014) 5 party, may, notwithstanding that he may not have appealed against such order or any part thereof, within thirty days of the receipt of the notice, file a memorandum of cross-objections, verified in the prescribed manner, against any part of the order of the Commissioner (Appeals), and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (3).” 10. When we consider the cross objection of the assessee as has been reproduced hereinabove, then, we clearly find that the cross objection raised by the assessee has arisen from the order of the ld.CIT(A)-8, New Delhi dated 11.11.2016 for AY 2011-12 and not from the impugned first appellate order dated 19.12.2013 for AY 2010-11. Therefore, the cross objections of the assessee do not fall within the four corners of the provisions of sub-section (4) of section 253 of the Act and, thus, are not maintainable in the present case which have been filed in response to notice of the Revenue Appeal No.1425/Del/2017. Therefore, the cross objections of the assessee are dismissed being not maintainable. 11. In the result, the Cross Objections filed by the assessee are dismissed. Order pronounced in the open court on 11.04.2023. Sd/- Sd/- (PRADIP KUMAR KEDIA) (C.M. GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 11 th April, 2023. dk CO No.12//Del/2017 (ITA No.1425/Del/2014) 6 Copy forwarded to : 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asstt. Registrar, ITAT, New Delhi