ACIT, Coy. Circle-13(1), V. Nokia India Ltd.,

ITA 2897/DEL/2004

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 52751 (ITAT-DELHI)
• Duration Of Justice: 7 year(s) 3 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2000-2001
• Appeal Filed On: 15-06-2004
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y KAKKAR
• Assessee Lawyers: SALIL KAPUR
• Keywords: Gift; Depreciation; Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E NEW DELHI BEFORE SHRI R.P. TOLANI AND SHRI K.G. BANSAL ITA NOS. 2781 & 5151/DEL/2004 ASSTT. YR: 2000-01 & 2001-02 M/S NOKIA INDIA PVT. LTD., VS. INCOME-TAX OFFICE R, (FORMERLY NOKIA INDIA LTD.), WARD 13(3), NEW DELH I. COMMERCIAL PLAZA, RADISON COMPLEX, NATIONAL HIGHWAY-8, MAHIPALPUR, NEW DELHI. ITA NOS. 2897 & 5411/DEL/2004 ASSTT. YR: 2000-01 & 2001-02 INCOME-TAX OFFICER, VS. M/S NOKIA INDIA PVT. LTD. , WARD 13(3), NEW DELHI. MAHIPALPUR, NEW DELHI. (APPELLANT ) ( RESPONDENT ) ASSESSEE BY : SHRI SALIL KAPUR ADV. REVENUE BY : MS. Y. KAKKAR SR. DR O R D E R PER R.P. TOLANI, J.M : THESE CROSS APPEALS FOR A.Y. 2000-01 AND 2001-02 HA VE BEEN LISTED FOR HEARING BY THE REGISTRY CONSEQUENT TO THE CONSOLIDA TED ORDER DATED 14-7- 2009, OF THE HONBLE DELHI HIGH COURT, SETTING ASID E TO ITAT THE GROUNDS RELATING TO (I) NON-ALLOWANCE OF MARKETING EXPENDITURE NAMED AS COM MERCIAL GIFTS INCURRED ON ACCOUNT OF CELLULAR PHONES/ HANDS ETS ISSUED TO DEALERS AND EMPLOYEES; (II) WITHOUT PREJUDICE, TO ALLOW DEPRECIATION @ 35% THER EON; AND (III) MARKETING EXPENDITURE (TREATED AS PRODUCTS FOR OWN USE), INCURRED BY THE ASSESSEE IN RESPECT OF CELLULAR PHONES/ HAND SETS ISSUED TO DEALERS AND AFTER MARKETING SERVICE CENTERS (AMSC), WHICH WERE RAISED BY WAY OF GROUND NOS. 3,4 & 5 IN APPEAL FOR A.Y. 2000-01 AND GROUND NOS. 4 & 5 FOR A.Y. 2001-02. 2. BOTH THE PARTIES AGREED THAT SINCE THE ISSUES IN QUESTION REQUIRE FURTHER INVESTIGATION OF FACTS, WHICH ARE NOT EMERGENT FROM THE RECORD, IT WILL BE DESIRABLE THAT THESE ISSUES ARE SET ASIDE BACK TO T HE FILE OF AO TO DECIDE THE SAME AFRESH. 3. WE FIND MERIT IN THE PROPOSITION AND SET ASIDE THESE ISSUES BACK TO AO WHO WILL VERIFY THE RELEVANT FACTS ABOUT THE CE LLULAR PHONES/ HANDSETS AND DECIDE THEM AFRESH AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD. 4. IN VIEW THEREOF, GROUND NOS. 3,4 & 5 RAISED BY T HE ASSESSEE IN A.Y. 2000-01 AND GROUND NO. 4 RAISED BY THE ASSESSEE IN A.Y. 2001-02 ON THE ABOVE ISSUES ARE RESTORED BACK TO THE FILE OF AO TO DECIDE THE SAME AFRESH IN ACCORDANCE WITH LAW, AS MENTIONED ABOVE. IT MAY BE PERTINENT TO MENTION THAT ASSESSEES GROUND NO. 5 IN A.Y. 2001-02 IS BEI NG DEALT SEPARATELY BY THE ORDER OF EVEN DATE IN M.A. NO. 391/DEL/09IT MAY BE FURTHER ADDED THAT THERE WILL BE NO EFFECT ON THE OUTCOME OF TWO REVENUES A PPEALS INASMUCH AS THE CIT(A) HAVING CONFIRMED AOS ORDER, THESE ISSUES WE RE NOT RAISED BY THE DEPARTMENT. 5. IN VIEW OF OUR FINDINGS, THE RESULT OF THE CROS S-APPEALS FILED BY THE ASSESSEE AS WELL AS THE REVENUE WILL NOW BE AS UNDE R: FOR A.Y. 2000-01 - PARA 22: IN THE RESULT ASSESSEES APPEAL IS PART LY ALLOWED FOR STATISTICAL PURPOSES AND REVENUES APPE AL IS DISMISSED. FOR A.Y. 2001-02 - PARA 29: IN THE RESULT ASSESSEES APPEAL IS PART LY ALLOWED FOR STATISTICAL PURPOSES AND REVENUES APPE AL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 22-09-2011. SD/- SD/- (K.G. BANSAL ) ( R.P. TOLANI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 22-09-2011. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR