ACIT, New Delhi V. M/s. NHK Spring India Ltd., Gurgaon

ITA 285/DEL/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65327 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-08-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 02-08-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 18-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R S NEGI
• Keywords: Revised return

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES: E NEW DELHI BEFORE SHRI J.SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI C.M.GARG, JUDICIAL MEMBER ITA NO: 285/DEL/2012 ASSESSMENT YEAR : - 2007-08 ACIT, CIRCLE 13(1) VS. M/S NHK SPRING INDIA LTD. NEW DELHI PLOT NO.31, SECTOR 3, IMT MANESAR GURGAON, HARYANA 12050 PAN: AAACN 3501 G (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R.S.NEGI, SR.D.R. RESPONDENT BY : SHRI SANDEEP SAPRA, ADV. O R D E R PER J.SUDHAKAR REDDY, ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XVI, NEW DELHI DT. 14.08.2011 PERTAINING TO THE ASSESSMENT YEAR 2007-08 ON THE FOLLOWING GROUND. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN A LLOWING RELIEF OF RS.12,23,979/- ON ACCOUNT OF ALLOWABLE EX PENSES UNDER SECTION 40(A)(IA) IGNORING THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF GEOTZE (INDIA) LTD. VS CIT (20 06) 284 ITR 323 (SC) THAT HELD THAT THE ASSESSING OFFICER HAD NO PO WER TO ENTERTAIN A CLAIM MADE OTHERWISE THAN BY FILING OF A REVISED RETURN OF INCOME. 2. THE ASSESSEE IS A COMPANY AND IS A SUBSIDIARY OF M/S NHK SPRING CO.LTD. JAPAN. IT IS ENGAGED IN THE BUSINESS OF T HE BUSINESS OF MANUFACTURING AND MARKETING OF THE AUTOMOBILE SUSPE NSION PARTS VIZ., ITA 285/DEL/2012 PAGE 2 OF 5 ASSESSMENT YEAR 2007-08 M/S NHK SPRING INDIA LTD. GURGAON COIL SPRING, STABILIZERS BARS AND TORSION BARS ETC. THE ISSUE BEFORE US IS WHETHER THE COMMISSIONER OF INCOME TAX (APPEALS) WA S RIGHT IN ALLOWING DEDUCTION OF EXPENSES WHICH WERE DISALLOWED IN THE EARLIER YEAR UNDER SECTION 40A(I)(A), AS THE TAX WAS DEDUCTED AT SOURC E AND PAID DURING THE YEAR. THE A.O. APPLIED THE DECISION OF THE HONBL E SUPREME COURT IN THE CASE OF GOETZ INDIA LTD. VS CIT 284 ITR 323 AND H ELD THAT A CLAIM CANNOT BE MADE BY WAY OF A LETTER, THOUGH THE CLAIM OF DEDUCTION OF THE ASSESSEE APPEARS TO BE JUSTIFIED KEEPING IN VIEW TH E RELEVANT PROVISIONS OF S.40A(I)(A) OF THE INCOME TAX ACT, 1961. HE WAS OF THE OPINION THAT THE ASSESSEE SHOULD HAVE FILED A REVISED RETURN. BEFOR E THE COMMISSIONER OF INCOME TAX (APPEALS) THE ASSESSEE HAD MADE A FRESH CLAIM. THE COMMISSIONER OF INCOME TAX (APPEALS) ALLOWED THE CL AIM. AGGRIEVED THE REVENUE IS IN APPEAL BEFORE US. 3. LD.D.R.MR.R.S.NEGI CONTENDS THAT THE A.O. WAS NO T WRONG IN APPLYING THE JUDGEMENT OF THE HONBLE SUPREME COURT IN GOETZ INDIA LTD. VS CIT (SUPRA). HE REFERRED TO THE GROUNDS OF APPE AL RAISED BY THE ASSESSEE BEFORE THE COMMISSIONER OF INCOME TAX (APP EALS) AND SUBMITTED THAT THE COMMISSIONER OF INCOME TAX (APPE ALS) WAS WRONG IN HOLDING THAT THE A.O. SHOULD HAVE ALLOWED THE CLAI M. HE EMPHASIZED THAT THE ASSESSEE HAS NOT RAISED A FRESH CLAIM BEFO RE THE COMMISSIONER OF INCOME TAX (APPEALS). 4. LD.COUNSEL FOR THE ASSESSEE MR.SANDEEP SADRA ON THE OTHER HAND POINTED OUT THAT THE ASSESSEE HAS MADE A FRESH CLAI M BEFORE THE ITA 285/DEL/2012 PAGE 3 OF 5 ASSESSMENT YEAR 2007-08 M/S NHK SPRING INDIA LTD. GURGAON COMMISSIONER OF INCOME TAX (APPEALS) AND AS ALL THE FACTS ARE ON RECORD AND AS THE ASSESSING OFFICER HAS HIMSELF RECORDED THAT THE CLAIM IS CORRECT, THE COMMISSIONER OF INCOME TAX (APPEALS) W AS RIGHT IN ALLOWING THE CLAIM. 5. RIVAL CONTENTS HEARD. BEFORE THE LD.CIT(A) BY W AY OF WRITTEN SUBMISSIONS THE ASSESSEE PLEADED AS FOLLOWS:- AS PER THE SAID JUDGEMENT, IT HAS NOT IN ANY WAY CU RTAINED THE AUTHORITY OF THE APPELLATE AUTHORITIES TO ENTERTAIN A CLAIM WHICH IS OTHERWISE ALLOWABLE AS PER THE LAW. IN VIEW OF THI S, IT IS HUMBLY SUBMITTED THAT THE CLAIM WHICH IS ADMITTED BY THE A SSESSING OFFICER HIMSELF ALSO, AS PER HIS OWN ORDER, IS A JU STIFIED CLAIM BUT THE SAME CAN ONLY BE CLAIMED BEFORE HIM ON THE BAS IS OF REVISED RETURN AND HENCE DISALLOWED, MAY PLEASE BE ENTERTAI NED BEING A VALID ALLOWANCE AS PER THE INCOME TAX ACT, 1961. T HE SAID FACT WAS ALSO ON RECORD SINCE IN THE TAX AUDIT REPORT DA TED 22 ND OCTOBER, 2007 VIDE ANNEXURE 6, THE AMOUNT ALLOWABLE IS CERTIFIED BY THE TAX AUDITOR. FROM THE ABOVE IT IS CLEAR THAT THE ASSESSEE HAS RE QUESTED THAT THE COMMISSIONER OF INCOME TAX (APPEALS) SHOULD HAVE EN TERTAINED A FRESH CLAIM AS THE FACTS ARE ON RECORD. 7. S.40A(IA) HAS BEEN AMENDED BY INSERTION OF A PRO VISO WHICH READS AS FOLLOWS. S.40 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTIONS 30 TO 38, THE FOLLOWING AMOUNTS SHALL NOT BE DEDUCTED IN COMPUTIN G THE INCOME CHARGEABLE UNDER THE HEAD PROFITS AND GAINS OF BUS INESS OR PROFESSION- ITA 285/DEL/2012 PAGE 4 OF 5 ASSESSMENT YEAR 2007-08 M/S NHK SPRING INDIA LTD. GURGAON (A) IN THE CASE OF ANY ASSESSEE (I) (IA) ANY INTEREST, COMMISSION OR BROKERAGE, FEES FO R PROFESSIONAL SERVICES OR FEES FOR TECHNICAL SERVICES PAYABLE TO A RESIDENT, OR AMOUNTS PAYABLE TO A CONTRACTOR OR SUB-CONTRACTOR, BEING RESIDENT, FOR C ARRYING OUT ANY WORK (INCLUDING SUPPLY OF LABOUR FOR CARRYING OUT ANY WO RK), ON WHICH TAX IS DEDUCTIBLE AT SOURCE UNDER CHAPTER XVII-B AND SUCH TAX HAS NOT BEEN DEDUCTED OR, AFTER DEDUCTION HAS NOT BEEN PAID DURI NG THE PREVIOUS YEAR, OR IN THE SUBSEQUENT YEAR BEFORE THE EXPIRY OF THE TIME PRESCRIBED UNDER SUB-SECTION (1) OF SECTION 200. PROVIDED THAT WHERE IN RESPECT OF ANY SUC H SUM TAX HAS BEEN DEDUCTED IN ANY SUBSEQUENT YEAR OR, HAS BEEN DEDUCT ED IN THE PREVIOUS YEAR BUT PAID IN ANY SUBSEQUENT YEAR AFTER THE EXPI RY OF THE TIME PRESCRIBED UNDER SUB-SECTION (1) OF SECTION 200, SU CH SUM SHALL BE ALLOWED AS A DEDUCTION IN COMPUTING THE INCOME OF THE PREVI OUS YEAR IN WHICH SUCH TAX HAS BEEN PAID . 8. AS THE STATUTE PROVIDES FOR A DEDUCTION AND AS T HE FACTS HAVE NOT BEEN DISPUTED BY THE LD.D.R., AND AS THE HONBLE SU PREME COURT IN THE CASE OF GOETZ INDIA LTD. HAS STATED THAT THE JUDGE MENT DOES NOT EFFECT THE POWERS OF THE APPELLATE AUTHORITY, WE UPHOLD TH E ORDER OF THE LD.CIT(A). 9. IN THE RESULT THE APPEAL OF THE REVENUE IS DISMI SSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH AUGUST, 2012. SD/- SD/- (C.M.GARG) (J.SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBE R DATED: THE 29 TH AUGUST, 2012 *MANGA ITA 285/DEL/2012 PAGE 5 OF 5 ASSESSMENT YEAR 2007-08 M/S NHK SPRING INDIA LTD. GURGAON COPY OF THE ORDER FORWARDED TO: 1. APPELLANT; 2.RESPONDENT; 3.CIT; 4.CIT (A); 5.DR; 6.GUARD FILE BY ORDER DY. REGISTRAR 1. DATE OF DICTATION: 07/8 2. DRAFT PLACED BEFORE THE AUTHOR ON:27/8 3. DRAFT PROPOSED AND PLACED BEFORE SECOND MEMBER ON: 4. DRAFT DISCUSSED/APPROVED BY THE SECOND MEMBER ON: 5. APPROVED DRAFT CAME TO SR.P.S. ON: 6. DATE OF PRONOUNCEMENT : 7. FILE SENT TO BENCH CLERK ON : 8. DATE ON WHICH FILE GIVEN TO HEAD CLERK ON: 9. DATE OF DISPATCHING THE ORDER ON :