M/s. Nulon India Ltd., New Delhi V. ITO, New Delhi

CO 237/DEL/2016

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5453 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 2 month(s) 27 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 25-09-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2011-2012
• Appeal Filed On: 28-06-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: K R MANJARI
• Keywords: Depreciation; Retrospective amendment; Tax effect; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D : NEW DELHI) BEFORE SHRI R.K.PANDA, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO 3316 /DEL./2016 (ASSESSMENT YEAR : 2011-12) ITO, VS. M/S NULON INDIA LTD. WARD 18(4), NULON HOUSE, TRIBHUVAN COMPL EX, NEW DELHI DELHI M ATHURA ROAD, 10 TH MILE STONE, ISHWAR NAGAR, NEW DELHI-110065. (P AN : AAACN0067F) C.O. NO.237 /DEL./2016 (ASSESSMENT YEAR : 2011-12) M/S NULON INDIA LTD. VS. ITO, NULON HOUSE, TRIBHUVAN COMPLEX, WARD 18(4), DELHI MATHURA ROAD, 10 TH MILE STONE, NEW DELHI ISHWAR NAGAR, NEW DELHI-110065. (P AN : AAACN0067F) APPELLANT) (RESPOND ENT) ASSESSEE BY : SH. K.R.MANJARI, ADV. REVENUE BY : SHRI J.K.MISHRA, CIT,DR DATE OF HEARING : 05.09.2019 DATE OF ORDER : 25.09.2019 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : THE APPELLANT, INCOME TAX OFFICER, WARD 18(4), NEW DELHI (HEREINAFTER REFERRED TO AS THE REVENUE) BY FILIN G THE PRESENT APPEAL SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 31/03/2016 ITA NO.3316/DEL./2016 (C.O.NO. 237/DEL/2016) 2 PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS)- 20, NEW DELHI QUA THE ASSESSMENT YEAR 2011-12. THE ASSESSEE ALSO FILED CROSS OBJECTIONS CHALLENGING THE IMPUGNED ORDER PAS SED BY LD. CIT(A), NEW DELHI 2. PERUSAL OF THE AFORESAID APPEAL FILED BY THE RE VENUE APPARENTLY SHOW THAT THE SAME IS HAVING LOW TAX EFF ECT AS PER CBDT CIRCULAR NO.17/2019 DATED 8 TH AUGUST, 2019 VIDE WHICH THE REVENUE HAS BEEN DIRECTED NOT TO PREFER ANY APPEAL IN CASE THE TAX EFFECT IS LESS THAN RS.50,00,000/- AND THIS FACTUAL POSITION HAS BEEN FAIRLY CONCEDED BY THE LD. D.R. THE LD. A.R. CONTE NDED THAT THE APPEAL OF THE REVENUE MAY BE DISMISSED IN THE LIGHT OF CBDT CIRCULAR (SUPRA). 3. WE HAVE HEARD THE PARTIES ON THE ISSUE IN CONTR OVERSY AND PERUSED THE MATERIAL ON RECORD. PERUSAL OF CBDT CIR CULAR (SUPRA) SHOWS THAT MONETARY LIMIT FOR FILING THE APPEAL BY THE DEPARTMENT BEFORE THE TRIBUNAL, HON'BLE HIGH COURT AND HON'BLE SUPREME COURT HAS BEEN REVISED AND THE RELEVANT PORTION OF THE AFORESAID CIRCULAR IS EXTRACTED AS UNDER: SUBJECT : FURTHER ENHANCEMENT OF MONETARY LIMITS FO R FILING OF APPEALS BY THE DEPARTMENT BEFORE INCOME T AX APPELLATE TRIBUNAL, HIGH COURTS AND SLPS/APPEALS BEFORE SUPRE ME COURT - AMENDMENT TO CIRCULAR 3 OF 2018 -MEASURES FOR REDUC ING LITIGATION. ITA NO.3316/DEL./2016 (C.O.NO. 237/DEL/2016) 3 REFERENCE IS INVITED TO THE CIRCULAR NO.3 OF 2018 D ATED 11.07.2018 (THE CIRCULAR) OF CENTRAL BOARD OF DIREC T TAXES (THE BOARD) AND ITS AMENDMENT DATED 20TH AUGUST. 2018 VI DE WHICH MONETARY LIMITS FOR FILING OF INCOME TAX APPEALS BY THE DEPARTMENT BEFORE INCOME TAX APPELLATE TRIBUNAL. HI GH COURTS AND SLPS/APPEALS BEFORE SUPREME COURT HAVE BEEN SPE CIFIED. REPRESENTATION HAS ALSO BEEN RECEIVED THAT AN ANOMALY IN THE SAID CIRCULAR AT PARA 5 MAY BE REMOVED. 2. AS A STEP TOWARDS FURTHER MANAGEMENT OF LITIGAT ION. IT HAS BEEN DECIDED BY THE BOARD THAT MONETARY LIMITS FOR FILING OF APPEALS IN INCOME-TAX CASES BE ENHANCED FURTHER THR OUGH AMENDMENT IN PARA 3 OF THE CIRCULAR MENTIONED ABOVE AND ACCORDINGLY, THE TABLE FOR MONETARY LIMITS SPECIFIE D IN PARA 3 OF THE CIRCULAR SHALL READ AS FOLLOWS: S. NO. APPEALS/SLPS IN INCOME -TAX MATTERS MO NETARY LIMIT (IN RS) 1 BEFORE APPELLATE TRIBUNAL 50,00,000/- 2 BEFORE HIGH COURT 1,00,00,000/- 3 BEFORE SUPREME COURT 2,00,00,000/- 3. FURTHER, WITH A VIEW TO PROVIDE PARITY IN FILIN G OF APPEALS IN SCENARIOS WHERE SEPARATE ORDER IS PASSED BY HIGH ER APPELLATE AUTHORITIES FOR EACH ASSESSMENT YEAR VIS-A-VIS WHER E COMPOSITE ORDER FOR MORE THAN ONE ASSESSMENT YEARS IS PASSED. PARA 5 OF THE CIRCULAR IS SUBSTITUTED BY THE FOLLOWING PARA: '5. THE ASSESSING OFFICER SHALL CALCULATE THE TAX E FFECT SEPARATELY FOR EVERY ASSESSMENT YEAR IN RESPECT OF THE DISPUTED ISSUES IN THE CASE OF EVERY ASSESSEE. IF, IN THE CASE OF AN ASSESSEE, THE DISPUTED ISSUES ARISE IN M ORE THAN ONE ASSESSMENT YEAR, APPEAL CAN BE FILED IN RESPECT OF SUCH ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFE CT IN RESPECT OF THE DISPUTED ISSUES EXCEEDS THE MONETARY LIMIT SPECIFIED IN PARA 3. NO APPEAL SHALL BE FILED IN RE SPECT OF AN ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IS LESS THAN THE MONETARY LIMIT SPECIFIED IN PARA 3. FURTHE R, EVEN IN THE CASE OF COMPOSITE ORDER OF ANY HIGH COURT OR APPELLATE AUTHORITY WHICH INVOLVES MORE THAN ONE ASSESSMENT YEAR AND COMMON ISSUES IN MORE THAN ONE ASSESSMENT YEAR, NO APPEAL SHALL BE FILED IN RESPEC T OF AN ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IS LESS THAN THE MONETARY LIMIT SPECIFIED IN PARA 3. IN CAS E WHERE A COMPOSITE ORDER/ JUDGMENT INVOLVES MORE THAN ONE ASSESSEE. EACH ASSESSEE SHALL BE DEALT WITH SEPARAT ELY.' ITA NO.3316/DEL./2016 (C.O.NO. 237/DEL/2016) 4 4. IN VIEW OF THE CBDT CIRCULAR NO.17/2019 DATED 8 TH AUGUST, 2019 HAVING RETROSPECTIVE EFFECT AS COORDINATE BENC H OF THE TRIBUNAL IN CASE OF DINESH MADHAVLAL PATEL [TS-469-ITAT- 2019(AHD)] 2019-TIOL-1556-ITAT-AHM DATED 14 TH AUGUST, 2019 HAS ALREADY DECIDED THE ISSUE AS TO THE APPLICABILI TY OF THE CAPTIONED CIRCULAR TO THE PENDING APPEALS IN AFFIRM ATIVE AND WHAT HAS BEEN DISCUSSED ABOVE, WE ARE OF THE CONSIDERED VIEW THAT THE AFORESAID APPEAL IS NOT MAINTAINABLE BECAUSE OF LOW TAX EFFECT I.E. LESS THAN RS.50,00,000/- HENCE, THE AFORESAID APPEA L FILED BY THE REVENUE IS HEREBY DISMISSED HAVING BEEN BECOME INFR UCTUOUS. 5. BRIEFLY STATED THAT FACTS NECESSARY FOR ADJUDICA TION OF THE CONTROVERSY AT HAND ARE : ASSESSING OFFICER HAS DIS ALLOWED AN AMOUNT OF RS. 9,37,389/- CLAIMED BY THE ASSESSEE AS DEDUCTION ON ACCOUNT OF TRAVELLING EXPENSES ON FOREIGN TOUR ON T HE GROUND THAT THE ASSESSEE HAS FAILED TO PROVE THAT THE EXPENSES ON ACCOUNT OF FOREIGN TOURS RELATES TO BUSINESS. AO ALSO DISALLOW ED AN AMOUNT OF RS. 12,56,520/- ON ACCOUNT OF DEPRECIATION OF BUILD ING ON THE GROUND THAT THE ASSESSEE HAS FAILED TO FURNISH THE DETAILS OF LOCATION OF FACTORY BUILDINGS 67, FACTORY BUILDING-05 AND FACTORY BUILDING K. ASSESSING OFFICER ALSO DISALLOWED OF RS. 2,89, 687/- BEING OF THE VEHICLE EXPENSES OF RS. 11,58,747/- ON THE G ROUND THAT THERE ITA NO.3316/DEL./2016 (C.O.NO. 237/DEL/2016) 5 IS PERSONAL ELEMENT IN VEHICLE USES AND THEREBY DIS ALLOWED 25% OF THE EXPENSES. 6. ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) WH O HAS PARTLY ALLOWED APPEAL. FEELING AGGRIEVED THE REVENU E AS WELL AS ASSESSEE HAVE COME UP BY WAY OF FILING APPEAL AS WE LL AS CROSS OBJECTIONS RESPECTIVELY. APPEAL FILED BY THE REVENU E STANDS DISMISSED ON ACCOUNT OF LOW TAX EFFECT IN VIEW OF C BDT CIRCULAR NO. 17/2019 DATED 8 TH AUGUST, 2019. HOWEVER, CROSS OBJECTION FILED BY THE ASSESSEE ARE BEING DISPOSED OF ON MERIT. 7. THE LD. AR FOR THE ASSESSEE BROUGHT ON RECORD COPY OF ORDER DATED 25.06.2018 PASSED BY CO-ORDINATE BENCH OF TRIBUNAL IN ITA NO. 1908/DEL/2016 AND ITA NO. 2264/DEL/2016. BA RE PARUSAL OF THE ORDER (SUPRA) GOES TO PROVE THAT THE ISSUES RAISED IN THE CROSS OBJECTIONS HAVE ALREADY BEEN DECIDED BY THE TRIBUNA L IN ITA NO. 2264/DEL/2016, A.Y. 2011-12 VIDE ORDER DATED 25.06. 2018 AND IN VIEW OF THE MATTER PRESENT CROSS OBJECTIONS ARE NOT MAINTAINABLE AS THE ASSESSEE IS NOT ENTITLED TO RE-AGITATE THE MATT ER UNDER THE GARB OF PRESENT CROSS OBJECTION WHEN ITS APPEAL HAS ALREADY BEEN DECIDED BY THE TRIBUNAL. CONSEQUENTLY, CROSS OBJECTIONS FIL ED BY THE ASSESSEE ARE DISMISSED BEING NOT MAINTAINABLE. ITA NO.3316/DEL./2016 (C.O.NO. 237/DEL/2016) 6 8. IN VIEW OF THE MATTER THE APPEAL FILED BY THE REVENUE HAS BEEN DISMISSED ON ACCOUNT OF LOW TAX EFFECT AND CR OSS OBJECTION FILED BY THE ASSESSEE ARE ALSO DISMISSED BEING NOT MAINTAINABLE. 9. HOWEVER, IN CASE, THE PRESENT APPEAL FILED BY TH E REVENUE IS FOUND TO BE MAINTAINABLE AT ANY STAGE FOR ANY TECHN ICAL REASONS, THE DEPARTMENT SHALL BE AT LIBERTY TO SEEK RECALL OF TH IS ORDER UNDER RELEVANT PROVISIONS OF LAW. ORDER PRONOUNCED IN OPEN COURT ON THIS 25 TH DAY OF SEPTEMBER, 2019. SD/- SD/- (R.K.PANDA) (KUL DIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 25 TH DAY OF SEPTEMBER, 2019 BR COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-20, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DEL HI. ITA NO.3316/DEL./2016 (C.O.NO. 237/DEL/2016) 7 DATE OF DICTATION 05/09/2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 05/09/2019 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