ACIT, New Delhi V. M/s. NTPC Sail Powerl Co. Ltd., New Delhi

ITA 3046/DEL/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 8334 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2013-2014
• Appeal Filed On: 15-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation; Additional evidence; TDS
• Section: 40(a)(ia); 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: E: NEW DELHI) BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT ME MBER ITA NO:- 3046/DEL/2017 (ASSESSMENT YEAR: 2013-14) ACIT, CIRCLE - 18(2), NEW DELHI VS M/S NTPC SAIL POWER CO. LTD., 4 TH FLOOR, NBCC TOWER, 15, BHIKAHJI CAMA PLACE, NEW DELHI-110066 PAN-AABCN5467A APPELLANT RESPONDENT APPELLANT BY MS. RAKHI VIMAL , SR. DR RESPONDENT BY SH. M.P. RASTOGI, ADV ORDER PER ANADEE NATH MISSHRA, AM [A]. THIS APPEAL HAS BEEN FILED BY REVENUE AGAINST THE ORDER DATED 16.01.2017 PASSED BY LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-39, NEW DELHI [IN SHORT, LD.CIT(A)] PERTAINING TO ASSESSMENT YEAR 2013-14. IN THIS APPEAL, THE TAX E FFECT IS LESS THAN THE MONETARY LIMIT FIXED BY THE CENTRAL BOARD OF DI RECT TAXES (IN SHORT CBDT) IN ITS CIRCULAR NO.17/2009 DATED 08.0 8.2019. THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APPEAL:- (1) WHETHER ON FACTS AND IN CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) IS LEGALLY JUSTIFIED IN DELETING DISALLOWANCE OF RS. 1 0,99,211/- U/S 40(A)(IA) OF THE INCOME TAX ACT 1961 (THE ACT) ON A CCOUNT OF NON- DEDUCTION OF TDS ON BANK GUARANTEE EXPENSES BY I GNORING THE ITA NO: - 3046/DEL/2017 PAGE | 2 CONTENTS OF NOTIFICATION NO. 56/2012 OF THE CNBDT I N THIS REGARD ISSUED VIDE F.NO. 275/53/2012-IT (B) /SO 3069 (E) D ATED 31.12.2012 AND ALSO BY IGNORING THE FACT THAT THE S AID NOTIFICATION HAD COME INTO FORCE W.E.F. 1 ST JANUARY, 2013? (2) WHETHER ON FACTS AND IN CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) IS LEGALLY JUSTIFIED IN DELETING DISALLOWANCE OF RS. 1 ,12,10,000/- ON ACCOUNT OF DEPRECIATION CLAIMED ON THE ASSETS NOT O WNED BY THE ASSESSEE BY IGNORING THE FINDINGS OF THE ASSESSING OFFICER (THE AO) IN HIS ORDER THAT THE ASSESSEE HAD NOT DISCHARGED ITS INITIAL ONUS BY NOT FURNISHING ANY DETAILS UNDER EXPLANATION-1 TO T HE SECTION 32(1) OF THE ACT? (3) WHETHER ON FACTS AND IN CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) IS LEGALLY JUSTIFIED IN DELETING DISALLOWANCE OF RS. 1 ,12,10,000/- ON ACCOUNT OF DEPRECIATION CLAIMED ON THE ASSETS NOT O WNED BY THE ASSESSEE AND IN DIRECTING THE AO TO IDENTIFY AND VE RIFY THE ASSETS NOT OWNED BY THE ASSESSEE IGNORING THE FACT THAT TH E ASSESSEE HAD ALREADY FAILED TO DISCHARGE ITS INITIAL ONUS BY NOT FURNISHING ANY DETAILS IN THIS REGARD BEFORE THE AO DURING ASSESSM ENT PROCEEDINGS? (4) WHETHER ON FACTS AND IN CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) IS LEGALLY JUSTIFIED IN DELETING THE DISALLOWANCE OF R S. 1,12,10,000/- ON ACCOUNT OF DEPRECIATION CLAIMED ON THE ASSETS NOT O WNED BY THE ASSESSEE BY ACCEPTING THE ADDITIONAL EVIDENCE DURIN G THE APPELLANT PROCEEDINGS WITHOUT AFFORDING AN OPPORTUNITY TO THE AO OF BEING HEARD AND DESPITE THE FACT THAT THE ASSESSEE HAD NO T FULFILLED THE CONDITIONS AS LAID DOWN UNDER RULE 46A OF THE INCOM E TAX ACT (THE RULE) ? [B]. AT THE OUTSET, IT WAS BROUGHT TO THE NOTICE B Y LEARNED COUNSEL FOR THE ASSESSEE, AT THE TIME OF HEARING THAT TAX E FFECT IN THIS APPEAL IS BELOW RS. 50,00,000./-. VIDE RECENT CBDT CIRCULA R NO.17/2019 DATED 08.08.2019 READ WITH EARLIER CBDT CIRCULAR NO . 3 OF 2018, DATED 11.07.2018, MINIMUM THRESHOLD LIMIT OF TAX EF FECT OF FILING OF APPEALS BY REVENUE IN INCOME TAX APPELLATE TRIBUNAL ('ITAT', FOR SHORT) HAS BEEN ENHANCED TO RS. 50,00,000/-. IN A S UBSEQUENT CLARIFICATION ISSUED BY CBDT VIDE F.NO. 279/MISC/M- 93/2018-ITJ, ITA NO: - 3046/DEL/2017 PAGE | 3 DATED 20/08/2019, IT HAS BEEN CLARIFIED BY CBDT THA T THE AFORESAID REVISED MONETARY LIMIT IS ALSO APPLICABLE TO ALL PE NDING APPEALS IN ITAT. THEREFORE, IN VIEW OF THE FOREGOING, WE ARE O F THE VIEW THAT THIS APPEAL FILED BY REVENUE IS NOT MAINTAINABLE. THE LE ARNED DEPARTMENTAL REPRESENTATIVE ALSO DID NOT PRESS THE APPEAL. ACCORDINGLY, THIS APPEAL IS DISMISSED BEING NOT PRE SSED, AND ALSO NOT MAINTAINABLE, HAVING REGARD TO AFORESAID CBDT C IRCULAR NO. 17/2019 DATED 08.08.2019 READ WITH AFORESAID CBDT C IRCULAR NO. 3 OF 2018 IN THE LIGHT OF AFORESAID CLARIFICATION D ATED 20/08/2019. [C]. BEFORE LEAVING, WE CLARIFY THAT REVENUE WILL B E AT LIBERTY TO APPROACH INCOME TAX APPELLATE TRIBUNAL U/S 254(2) O F INCOME TAX ACT, 1961 SEEKING RECALL OF THIS ORDER AND, FOR RESTORATION OF THE APPEAL IF IT IS FOUND THAT THIS APPEAL OF REVENUE IS NOT COVERED BY AFORESAID CBDT CIRCULARS DATED 08.08.2019 AND 11.07.2018. [D]. IN THE RESULT, THE APPEAL BY REVENUE IS DISMI SSED. OUR DECISION WAS ORALLY PRONOUNCED IN THE OPEN COURT AF TER CONCLUSION OF HEARING ON THE DATE OF HEARING. NOW, THIS WRITTE N ORDER IS PRONOUNCED IN OPEN COURT ON 04/10/19. SD/- SD/- (AMIT SHUKLA) (ANADEE NATH MISSHRA) JUDICIAL MEMBER ACCOUNTANT MEM BER DATED: 04/10/19 SH ITA NO: - 3046/DEL/2017 PAGE | 4 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DRAFT DICTATED 01.10.2019 DRAFT PLACED BEFORE AUTHOR APPROVED DRAFT COMES TO THE SR.PS/PS ORDER SIGNED AND PRONOUNCED ON FILE SENT TO THE BENCH CLERK DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER. DATE OF UPLOADING ON THE WEBSITE .10.2019