ACIT, New Delhi V. M/s. Spice Jet Ltd., Gurgaon

ITA 1298/DEL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 81643 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 5 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-08-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 20-08-2014
• Assessment Year: misc
• Appeal Filed On: 06-03-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAMESH CHANDRA
• Assessee Lawyers: RUPESH J AIN
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

ITA NOS.1298-1299/DEL/2013 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI BEFORE SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER AND SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A. N OS. 1298 & 1299/DEL/2013 A.Y RS . : 2009 - 10 & 2010-11 ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 51(1), R.NO. 508, AAYAKAR BHAVAN, LAKSHMI NAGAR, NEW DELHI VS. M/S SPICE JET LTD., 319, UDHOG VIHAR, PHASE-IV, GURGAON, HARYANA (PAN: AACCR1459F) (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) DEPARTMENT BY : SH. RAMESH CHANDR A , CIT(DR) ASSESSEE BY : SH. RUPESH JAIN, ADV. DATE OF HEARING : 20 DATE OF HEARING : 20 DATE OF HEARING : 20 DATE OF HEARING : 20- -- -8 88 8- -- -2014 2014 2014 2014 DATE OF ORDER : DATE OF ORDER : DATE OF ORDER : DATE OF ORDER : 22 2222 22- -- -8 88 8- -- -2014 2014 2014 2014 ORDER ORDER ORDER ORDER PER PER PER PER H.S. SIDHU H.S. SIDHU H.S. SIDHU H.S. SIDHU : : : : J JJ JM MM M THESE APPEALS BY THE REVENUE ARE DIRECTED AGAINST THE COMMON ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XXX, NEW DELHI DATED 21.12.2012 PERTAINI NG TO ASSESSMENT YEARS 2009-10 AND 2010-11. SINCE THE ISS UES INVOLVED IN THESE APPEALS ARE COMMON, WE ARE THEREFORE, PROCEED ING TO DISPOSE THEM OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. ITA NOS.1298-1299/DEL/2013 2 2. THE GROUNDS RAISED IN THE APPEAL READ AS UNDER: - 1. THE LD. CIT(A) HAS GROSSLY ERRED IN LAW AND ON FACTS IN DELETING THE DEMAND ON THE GROUND THAT TDS PROVISI ONS ARE NOT ATTRACTED ON THE PAYMENT OF PASSENGER SERVI CE FEE (PSF). 2. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT COMPREHENDING THE FINDINGS OF THE HONBLE HIGH COU RT WHO HAD RESERVED ALL THE RIGHTS AND CONTENTIONS OF THE REVENUE AND ASSESSEE BEFORE THE APPELLATE AUTHORITY WHILE CLARIFYING THE REMARK INITIALLY GIVEN ON TH E ISSUE OF APPLICABILITY OF TDS ON PSF WHICH WAS ONLY PRIMA FACIE BY NOT CONCLUSIVE. 3. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT GRANTING AN OPPORTUNITY OF BEING HEARD TO THE ASS ESSING OFFICER BEFORE ADJUDICATING THE APPEAL IN FAVOR OF THE ASSESSEE COMPANY, THROUGH SUCH OFFICIAL REQUEST WAS TWICE MADE TO THE LD. CIT(A) VIDE LETTER DATED 19.1 0.2012 AND 1.11.2012. 4. THE LD. CIT(A) WHILE HOLDING THAT THE PAYMENT OF PSF IS NOT SUBJECT TO TDS, HAS ERRED IN LAW AND ON FACTS I N NOT APPRECIATING THE FACT OF DEDUCTING TAX U/S. 194J OF THE ACT ITA NOS.1298-1299/DEL/2013 3 BY THE ASSESSEE COMPANY ITSELF ON THE PAYMENT OF PS F FROM FY 2009-10. 5. THE REVENUE CRAVES LEAVE TO ADD, ALTER OR AMEND ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING. 3. THE FACTS OF THE CASE ARE NOT IN DISPUTE BY BO TH THE PARTIES, THEREFORE, NEED NOT REPEATED HERE FOR THE SAKE OF C ONVENIENCE. 4. AT THE TIME OF HEARING SHRI RAMESH CHANDRA, LD. CIT(DR) DRAW OUR ATTENTION TOWARDS THE ISSUE RAISED IN GROUND NO . 3 REGARDING NOT GRANTING THE OPPORTUNITY OF HEARING BY THE LD. CI T(A) TO THE AO, BEFORE ADJUDICATING THE APPEAL IN FAVOR OF THE ASSE SSEE COMPANY. HE ALSO DRAW OUR ATTENTION TO SECTION 250(2)(B) OF THE INCOME TAX ACT, 1961 AND REQUESTED THAT THE ORDER PASSED BY TH E FIRST APPELLATE AUTHORITY IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE AND THE ISSUES IN DISPUTE MAY BE SET ASIDE TO THE FILE OF THE CIT(A) TO DECIDE THE ISSUES AFRESH, AFTER GIVING ADEQUATE OPP ORTUNITY TO THE PARTIES, AS REQUIRED UNDER SECTION 250(2)(B) OF THE INCOME TAX ACT, 1961. 4.1 ON THE CONTRARY, LD. AUTHORISED REPRESENTATIVE , SHRI RUPESH JAIN, HAS NOT RAISED ANY OBJECTION ON THE REQUEST OF THE LD. CIT(DR). 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE O RDERS PASSED BY THE LOWER AUTHORITIES ALONGWITH THE PROVI SION OF SECTION ITA NOS.1298-1299/DEL/2013 4 250(2)(B) OF THE I.T. ACT, 1961. FOR THE SAKE OF C ONVENIENCE SECTION 250(2)(B) IS REPRODUCED AS UNDER:- (2) THE FOLLOWING SHALL HAVE THE RIGHT TO BE HEARD AT THE HEARING OF THE APPEAL (A) THE APPELLANT, EITHER IN PERSON OR BY AN AUTHORISED REPRESENTATIVE; (B) THE ASSESSING OFFICER, EITHER IN PERSON OR BY A REPRESENTATIVE. 5.1 IN VIEW OF THE ABOVE, IT IS AMPLY CLEAR THAT TH E AO SHOULD BE PROVIDED AN OPPORTUNITY OF BEING HEARD, WHICH WAS NOT PROVIDED BY THE LD. CIT(A) TO THE AO. THEREFORE, THE IMPUGNED ORDER IS CONTRARY TO THE PRINCIPLES OF NATURAL JUSTICE AS WELL AS THE PROVISIONS OF SECTION 250(2)(B) OF THE I.T. ACT, 1961, THUS, IT IS LIAB LE TO BE CANCELLED AND WE CANCEL THE IMPUGNED ORDER AND ALSO DIRECT THE L D. FIRST APPELLATE AUTHORITY TO DECIDE THE ISSUES IN DISPUTE IN ACCORD ANCE WITH LAW, AFTER GIVING THE ADEQUATE OPPORTUNITY TO THE AO IN TERMS OF SECTION 250(2)(B) OF THE INCOME TAX ACT, 1961. 6. IN THE RESULT, BOTH THE APPEALS FILED BY THE R EVENUE STAND ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 22/8/2014. SD/- SD/- [ [[ [S.V. MEHROTRA S.V. MEHROTRA S.V. MEHROTRA S.V. MEHROTRA] ]] ] [ [[ [H.S. SIDHU H.S. SIDHU H.S. SIDHU H.S. SIDHU] ]] ] ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR ITA NOS.1298-1299/DEL/2013 5 COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES ITA NOS.1298-1299/DEL/2013 6