ACIT Circle-46 (1), New Delhi V. Hamsa Sadaksharappa, New Delhi

ITA 3163/DEL/2008

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9689 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2009
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 02-09-2009
• Assessment Year: 1998-1999
• Appeal Filed On: 17-10-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MONA MOHANTI
• Section: 143(3); 10

Judgement Text

ITA NO. 3163/DEL/2008 A.Y. 1998-99 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C NEW DELHI BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 3163/DEL/2008 A.Y. 1998-99 ASSTT. C.I.T., SH. HAMSA SADAKSHARAPPA , CIRCLE 46(1), C/O CHATURVED & MISRA, MAYUR BHAWAN, 55, SANSKRIT NAGAR, PLOT NO.3, NEW DELHI VS. SECTOR-14, ROHINI, DELHI-85 [APPELLANT] (RESPONDENT) APPELLANT BY : SMT. MONA MOHANTI, DR RESPONDENT BY : NONE ORDER PER SHAMIM YAHYA, AM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDERS OF THE CIT(A) DATED 15.7.2008 AND PERTAINS TO ASSESSMENT YEAR 1998-99. 2. THE ISSUE RAISED IS THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED :- I) IN DELETING THE ADDITIONS RIGHTLY MADE BY THE AS SESSING OFFICER ON ACCOUNT OF HYPO TAX AS HYPO TAX IS NEITHER EXEMPT UNDER SEC TION 10 NOR QUALIFIES FOR DEDUCTION UNDER SECTION 16 OF THE IT ACT. II) THE DEPARTMENT IS IN APPEAL ON SOME ISSUE BEF ORE THE HONBLE HIGH COURT IN THE CASE OF SHRI SHORT DONALD, A.Y. 1999-2000. 3. IN THIS CASE THE ASSESSMENT WAS ORIGINALLY COMP LETED UNDER SECTION 143(3) AT RS. 65,51,596/- ON 13.2.2001. THE ASSESSEE WENT IN APPE AL AND CHALLENGED THE ADDITIONS ITA NO. 3163/DEL/2008 A.Y. 1998-99 2 BEFORE THE CIT(A). THE CIT(A) HAD DELETED THE ADD ITION. THE ASSESSEE/DEPARTMENT PREFERRED APPEAL BEFORE THE HONBLE ITAT AGAINST T HE ORDER OF THE CIT(A). THE ITAT VIDE ORDER IN ITA NO. 2011/DEL/2002 DATED 26.5.2005 HAS SET-ASIDE THE ISSUE OF HYPO TAX AND RESTORE BACK THE MATTER TO THE FILE OF ASSESSING OFF ICER FOR LIMITED PURPOSE FOR VERIFICATION THE CLAIM OF HYPO DEDUCTION. 4. IN THE ASSESSMENT THE ASSESSING OFFICER HAS DISA LLOWED THE DEDUCTION OF RS. 7,60,018/- ON ACCOUNT OF HYPO TAX ON THE GROUND THAT THE ASSESSEE HAS NOT SUBMITTED ANY DOCUMENT TO ESTABLISH THE AMOUNT OF HYPO TAX. 5. BEFORE THE LD. CIT(A), IT WAS SUBMITTED THAT THE AMOUNT OF HYPOTHETICAL TAXES WERE NEITHER DUE NOR HAVE BEEN RECEIVED BY NOR HAVE ACCRUED TO THE APPELLANT AND NEITHER DO THE APPELLANT HAVE ANY RIGHT TO CLAIM TH E SAME NOR HAS THE APPELLANT EVER CLAIMED THE SAME. IT IS MERELY AN ADJUSTMENT/ REDU CTION TO THE SALARY AND ARE NEITHER DEDUCTIONS NOR SALARY FOREGONE. TO CORROBORATE THE ABOVE STAND, RELIANCE WAS PLACED ON THE FOLLOWING JUDICIAL PRECEDENTS: A. DECISION OF HONBLE DELHI TRIBUNAL IN THE CASE O F EMPLOYEE OF GE ITSELF I.E. SCOTT BAYMAN V. JCIT ITA NO. 675/DEL/02 AND ITA N O. 2154 & 2155/DEL/03. B. DECISION OF HONBLE DELHI TRIBUNAL IN THE CASE O F ANOTHER EMPLOYEE OF GE ITSELF I.E. ANAND KUMAR DATTA V. JCIT (ITA NO. 943/D EL/2005) DATED APRIL 20, 2005. C. DECISION OF HONBLE DELHI TRIBUNAL IN ITA NO. 47 42/DEL/2000, IN THE CASE OF PRAMOD BHASIN, ALSO AN EMPLOYEE OF APPELLANTS EMPL OYER. D. DECISION OF HONBLE MUMBAI TRIBUNAL IN THE CASE OF MR. JAIDEV H. RAJA V. DEPUTY COMMISSIONER OF INCOME TAX. 6. FROM THE ABOVE, THE CIT(A) CONCLUDED THAT THE IS SUE INVOLVED IN THE GROUND WAS COVERED BY THE ORDER OF THE DELHI BENCH, ITAT, HEN CE HE DELETED THE ADDITION ON ACCOUNT OF HYPO TAX MADE BY THE ASSESSING OFFICER. ITA NO. 3163/DEL/2008 A.Y. 1998-99 3 7. AGAINST THIS ORDER THE REVENUE IS IN APPEAL BEF ORE US. 8. WE HAVE HEARD THE LD. DR AND PERSUED THE RECORD S. NONE APPEARED ON BEHALF OF THE ASSESSEE. AS CLEARLY BROUGHT OUT BY THE CIT(A) IN HIS APPELLATE ORDER THE ISSUE INVOLVED IS COVERED BY THIS TRIBUNALS DECISION ON SIMILAR FACTS. IT IS NOT THE CASE OF REVENUE THAT HONBLE JURISDICTIONAL HIGH COURT HAD REVERSED THE ORDER. HENCE, WE UPHOLD THE ORDER OF THE LD. CIT(A) AND DECIDE THE I SSUE IN FAVOUR OF THE ASSESSEE. 9. IN THE RESULT, THE APPEAL FILED BY THE REVENU E IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH SEPTEMBER, 2009. SD/- SD/- [R.P. TOLANI] [SHAMIM YAHYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 4 TH SEPTEMBER, 2009 SRB COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES