M/s. SGE Advisors (India) Pvt. Ltd., New Delhi V. ITO, New Delhi

CO 306/DEL/2016

• Counselvise Citation: [2017] 123 COUNSELVISE.COM (IT) 3340 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 2 month(s) 23 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 05-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 28-06-2017
• Assessment Year: 2003-2004
• Appeal Filed On: 12-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAUSHLENDRA TIWARI
• Keywords: Opportunity of being heard; Validity of assessment; Assessment record

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G : NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA NO. 2112/DEL/2014 ASSESSMENT YEAR: 2003-04 INCOME TAX OFFICER, VS. M/S SGE ADVISORS WARD 8(1), (INDIA) PVT. LTD. NEW DELHI 9 TH FLOOR, MERIDIAN ROOM NO. 225-F, COMMERCIAL TOWER, C.R. BUILDING, RAISANA ROAD, NEW DELHI NEW DELHI 110 001 (PAN:- AAACS8138C) (APPELLANT) (RESPONDENT) AND CROSS OBJECTION NO. 306/DEL/2016 (IN ITA NO. 2112/DEL/2014) ASSESSMENT YEAR: 2003-04 M/S SGE ADVISORS VS. ITO, WARD 8(1), (INDIA) PVT. LTD. NEW DELHI 9 TH FLOOR, MERIDIAN COMMERCIAL TOWER, RAISANA ROAD, NEW DELHI 110 001 (PAN:- AAACS8138C) (APPELLANT) (RESPONDENT) REVENUE BY : SH. KAUSHLENDRA TIWARI, SR . DR ASSESSEE BY : SH. DINESH GUPTA, CA ORDER PER H.S. SIDHU, JM THIS APPEAL HAS BEEN FILED BY THE REVENUE AND CROS S OBJECTION FILED BY THE ASSESSEE AGAINST THE IMPUGNED ORDER DATED 21.1.2014 OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XI, NEW DELHI 2 RELEVANT TO ASSESSMENT YEAR 2003-04. SINCE THE ISS UES INVOLVED IN THE APPEAL & CROSS OBJECTION ARE INTER-CONNECTED, HENCE, THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY TH IS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE GROUNDS RAISED IN THE REVENUES APPEAL READ AS UNDER:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITIONS OF RS. 1,29,52,731/- MADE BY THE AO ON ACCOUNT OF ONGOING EXPENSES. 2. THE APPELLANT CRAVES TO AMEND, MODIFY, ALTER, ADD OR FORGO ANY GROUND(S) OF APPEAL AT ANY TIME BEFORE OR DURING THE HEARING OF THIS APPEAL. 3. THE GROUNDS RAISED IN THE ASSESSEES CROSS OBJEC TION READ AS UNDER:- 1.1 THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE ASSESSEE COMPANYS CASE THE LD. CIT(A) ERRED IN DISMISSING THE GROUND OF APPEAL OF THE ASSESSEE COMPANY RAISED BEFORE HIM W.R.T. VALIDITY OF ASSESSMENT EVEN WHEN THE AO HAD ERRED IN LAW AND HAD EXCEEDED HIS JURISDICTION IN TERMS OF SECTION 153(2A) OF THE ACT IN MAKING AN ORDER OF FRESH ASSESSMENT FOR GIVING EFFECT TO THE ORDER OF THE ITAT, MUMBAI DATED 15.09.2010, WITH RESPECT TO ONGOING EXPENSES AMOUNTING TO RS. 1,29,52,731/- BY PASSING AN ORDER IN TERMS OF SECTION 143(3)/254 OF THE INCOME TAX ACT, 1961 VIDE HIS ORDER DATED 17.2.2012, ON 3 WHICH DATE THE PROCEEDINGS TO GIVE EFFECT TO THE SAID ORDER OF THE ITAT ON THE ABOVE ISSUE WERE ALREADY BARRED BY LIMITATION OF TIME AND AS SUCH THE SAID ORDER OF THE AO ON THE ABOVE SAID ISSUE WAS BAD IN LAW. 1.2 THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE ASSESSEE COMPANYS CASE THE ORDER DATED 17.2.2012 MADE BY THE AO IN TERMS OF SECTION 143(3)/254 OF THE ACT, ON THE ISSUE OF ONGOING EXPENSES AMOUNTING TO RS. 1,29,52,731/-, BEING BAD IN LAW, HE BE DIRECTED TO ACCEPT AND ALLOW THE SAID EXPENSES WHILE CALCULATING THE TOTAL INCOME OF THE ASSESSEE COMPANY. 4. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF BREVITY. SINCE THE CROSS OBJECTION HAS INVOLVED THE LEGAL ISSUE, HENCE, WE FIRST DEAL WITH THE CROSS OBJECTION FILED BY THE ASSESSEE IN THE FORGOING PARAGRAPHS. 5. DURING THE HEARING, LD. COUNSEL OF THE ASSESSEE HAS DRAWN OUR ATTENTION TOWARDS THE ISSUE INVOLVED IN THE CROSS O BJECTION AND STATED THAT THE ASSESSEE HAS RAISED THIS ISSUE BEFO RE THE LD. CIT(A), WHO VIDE HIS IMPUGNED ORDER 21.1.2014 HAS DECIDED T HE ISSUE VIDE PARA NO. 13.1 & 13.2 AT PAGE NO. 18 & 19 OF THE IMP UGNED ORDER AND DISMISSED THE APPEAL OF THE ASSESSEE, BY PASSING A NON-SPEAKING ORDER. THEREFORE, HE REQUESTED THAT THE ISSUE INVO LVED IN THE CROSS OBJECTION MAY BE SET ASIDE TO THE FILE OF THE LD. CIT(A) WITH THE 4 DIRECTION TO DECIDE THE SAME AFRESH, AS PER LAW AND PASS A SPEAKING ORDER ON THE SAME. 5.1 ON THE CONTRARY, LD. DR RELIED UPON THE ORDER O F THE AO, BUT HAS NOT RAISED ANY SERIOUS OBJECTION ON THE AFORESA ID REQUEST OF THE ASSESSEES COUNSEL. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS AND ALSO PERUSED THE ISSUES IN DISPUTE RAISED IN THE RE VENUES APPEAL AS WELL AS IN ASSESSEES CROSS OBJECTION. WE FIND THAT LD. CIT(A) HAS PASSED THE ORDER ON THE ISSUE INVOLVED IN THE CROSS OBJECTION VIDE PARA NO. 13.1 & 13.2 AT PAGE NO. 18 & 19 OF THE IMP UGNED ORDER. FOR THE SAKE OF CONVENIENCE, THE RELEVANT FINDING OF TH E LD. CIT(A) IS REPRODUCED BELOW:- 13.1 THE FACTS OF THE CASE AND THE SUBMISSIONS OF THE APPELLANT HAVE BEEN CAREFULLY CONSIDERED. GROUND NO. 1 OF THE APPEAL IS AGAINST THE AOS ACTION IN COMPLETING THE ASSESSMENT U/S. 143(3)/254 OF THE ACT ON 27.02.2012 CLAIMING THAT THE SAID ORDER DATED 15.09.2010 OF HONBLE ITAT MUST HAVE BEEN SERVED ON THE COMMISSIONER SOME TIME IN FY 2010-11. IT WAS ARGUED THAT THE LIMITATION FOR COMPLETING THE ASSESSMENT EXPIRED ON 31.12.2011 AND THEREFORE, THE ASSESSMENT ORDER GIVING EFFECT OF THE ORDER OF HONBLE ITAT IS BARRE D BY LIMITATION. 5 13.2 ON EXAMINING THE FACTS OF THE CASE, IT IS OBSERVED THAT THE APPELLANTS CASE HAS BEEN TRANSFERRED FROM MUMBAI TO DELHI. THE APPELLANT FAILED TO ESTABLISH THAT THE ORDER OF HONBLE ITAT WAS SERVED DURING THE FY 2010-11 AND IT IS OBSERVED THAT THE ENTIRE ARGUMENT OF THE APPELLANT IS BASED ON A PRESUMPTION. THEREFORE, THE APPELLANTS ARGUMENT IS NOT MAINTAINABLE IN ABSENCE OF ESTABLISHING THE DEFINITE DATE OF RECEIP T OF THE ORDER OF HONBLE ITAT. GROUND NO. 1 OF THE APPEAL IS DISMISSED. 6.1 AFTER GOING THROUGH THE AFORESAID FINDING GIVEN BY THE LD. CIT(A) ON THE LEGAL ISSUE WHICH IS INVOLVED IN THE CROSS OBJECTION FILED BY THE ASSESSEE, WE ARE OF THE VIEW THAT LD. CIT(A) HAS PASSED A NON-SPEAKING ORDER WITHOUT CONSULTING THE ASSESSM ENT RECORDS. THEREFORE, IN THE INTEREST OF JUSTICE, WE ASIDE THE ISSUES INVOLVED IN THE CROSS OBJECTION TO THE FILE OF THE LD. CIT(A) WITH THE DIRECTIONS TO DECIDE THE SAME AFRESH, AS PER LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND AFTE R CONSULTING THE ASSESSMENT RECORDS AND THEN PASS A SPEAKING ORDER . IT IS MADE CLEAR THAT WE ARE NOT COMMENTING UPON THE MERITS OF THE CASE. 7. AS FAR AS REVENUES APPEAL IS CONCERNED, SINCE W E HAVE ALREADY SET ASIDE THE ISSUES INVOLVED IN THE CROSS OBJECTIO N FILED BY THE ASSESSEE, THEREFORE, THE ISSUES INVOLVED IN THE REV ENUES APPEAL ARE 6 ALSO SET ASIDE TO THE FILE OF THE LD. CIT(A) WITH T HE SIMILAR DIRECTIONS, AS INDICATED ABOVE IN PARA NO. 6.1. 8. IN THE RESULT, BOTH THE ASSESSEES CROSS OBJECT ION AS WELL AS REVENUES APPEAL STAND ALLOWED FOR STATISTICAL PURP OSES. ORDER PRONOUNCED ON 05-12-2017. SD/- SD/- (L.P. SAHU) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 05-12-2017 SR BHATANGAR COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.