M/s. The Hindustan Times Limited, Delhi V. DCIT, New Delhi

ITA 3380/DEL/2010

• Counselvise Citation: 338020114 RSA 2010
• Duration Of Justice: 3 year(s) 3 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: H
• Next Hearing Date: 29-10-2013
• Assessment Year: 2002-2003
• Appeal Filed On: 09-07-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SAMEER SHARMA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH H HH H : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND SHRI SHRI SHRI SHRI CHANDRA MOHAN GARG CHANDRA MOHAN GARG CHANDRA MOHAN GARG CHANDRA MOHAN GARG, ,, , JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ITA NO. ITA NO. ITA NO. ITA NO.3826/DEL/2010 3826/DEL/2010 3826/DEL/2010 3826/DEL/2010 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2002 2002 2002 2002- -- -03 0303 03 ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CIRCLE CIRCLE CIRCLE CIRCLE- -- -16(1), 16(1), 16(1), 16(1), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. VS. VS. VS. VS. M/S THE HINDUSTAN TIMES LIMITED, M/S THE HINDUSTAN TIMES LIMITED, M/S THE HINDUSTAN TIMES LIMITED, M/S THE HINDUSTAN TIMES LIMITED, 9 99 9 TH THTH TH FLOOR, HT HOUSE, FLOOR, HT HOUSE, FLOOR, HT HOUSE, FLOOR, HT HOUSE, 18 1818 18- -- -20, K.G. MARG, 20, K.G. MARG, 20, K.G. MARG, 20, K.G. MARG, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 001. 110 001. 110 001. 110 001. PAN : PAN : PAN : PAN : AAACT4962F. AAACT4962F. AAACT4962F. AAACT4962F. (APPELLANT) (RESPONDENT) ITA NO. ITA NO. ITA NO. ITA NO.3380/DEL/2010 3380/DEL/2010 3380/DEL/2010 3380/DEL/2010 ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : 2002 2002 2002 2002- -- -03 0303 03 M/S THE HINDUSTAN TIMES M/S THE HINDUSTAN TIMES M/S THE HINDUSTAN TIMES M/S THE HINDUSTAN TIMES LIMITED, LIMITED, LIMITED, LIMITED, 9 99 9 T TT TH HH H FLOOR, HT HOUSE, FLOOR, HT HOUSE, FLOOR, HT HOUSE, FLOOR, HT HOUSE, 18 1818 18- -- -20, K.G. MARG, 20, K.G. MARG, 20, K.G. MARG, 20, K.G. MARG, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 001. 110 001. 110 001. 110 001. PAN : AAACT4962F. PAN : AAACT4962F. PAN : AAACT4962F. PAN : AAACT4962F. VS. VS. VS. VS. ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CIRCLE CIRCLE CIRCLE CIRCLE- -- -16(1), 16(1), 16(1), 16(1), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI SAMEER SHARMA, SR.DR. ASSESSEE BY : SHRI SANAT KAPOOR, ADVOCATE. ORDER ORDER ORDER ORDER PER G. PER G. PER G. PER G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VP VPVP VP : : : : ITA NO.3826/DEL/2010 ITA NO.3826/DEL/2010 ITA NO.3826/DEL/2010 ITA NO.3826/DEL/2010 :- THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-XIX, NEW DELHI DATED 28 TH MAY, 2010 FOR THE AY 2002-03. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUND :- THE LD.CIT(A) HAS ERRED ON FACTS AND IN LAW BY DEL ETING DISALLOWANCE OF ` 92,81,500/- BEING AMOUNT PAID TOWARDS HOUSE TAX IGNORING THE FACT THAT THE HOUSE TAX DEMA ND HAD ITA NOS.3826 & 3380/D/2010 2 BEEN DISPUTED BY THE ASSESSEE WITH THE NDMC AND HAD BEEN PAID UNDER PROTEST. 3. AT THE TIME OF HEARING BEFORE US, IT WAS STATED BY THE LEARNED DR THAT DURING THE COURSE OF APPELLATE PROCEEDINGS, TH E ASSESSEE HAS STATED THAT OUT OF THE TOTAL DEMAND RAISED BY NDMC AT ` 92,81,500/-, THE DISPUTED DEMAND IS ONLY ` 69,748/-. LEARNED CIT(A) ACCEPTED THE ASSESSEES VERSION AND SUSTAINED THE ADDITION TO TH E EXTENT OF ` 69,748/- ALLOWING RELIEF OF ` 92,11,752/-. THAT THE ASSESSEE HAS NOT PRODUCED ANY DOCUMENTARY EVIDENCE IN SUPPORT OF ITS ASSERTION THAT THE DISPUTED DEMAND IS ONLY ` 69,748/-. HE, THEREFORE, SUBMITTED THAT THE ORDER OF LEARNED CIT(A) SHOULD BE REVERSED AND THAT OF THE ASSESSING OFFICER SHOULD BE RESTORED. ALTERNATIVEL Y, THE MATTER MAY BE SENT BACK TO THE ASSESSING OFFICER FOR EXAMINING TH E EXACT AMOUNT OF THE DISPUTED DEMAND. 4. THE LEARNED COUNSEL FOR THE ASSESSEE, ON THE OTH ER HAND, POINTED OUT THAT THE ENTIRE DEMAND OF ` 92,81,500/- WAS RAISED BY NDMC VIDE BILL DATED 24.09.2001. THAT THE SAID DEMAND IS PAI D BY THE ASSESSEE VIDE CHEQUE NO.035693. HOWEVER, WHILE FORWARDING T HE CHEQUE, THE ASSESSEE ONLY MENTIONED UNDER PROTEST. HE, THERE FORE, SUBMITTED THAT THE ENTIRE DEMAND RAISED BY NDMC IN RESPECT OF THE PROPERTY TAX HAS BEEN DULY PAID BY THE ASSESSEE AND EVEN IF THE ASSESSEE DISPUTED THE SAME, THE LIABILITY HAS ALREADY ACCRUED. HE AL SO STATED THAT THE ADDITION SUSTAINED BY THE LEARNED CIT(A) HAS ALSO B EEN CHALLENGED BY THE ASSESSEE IN THE CROSS-APPEAL. 5. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. WE FIND THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE D ECISION OF HONBLE APEX COURT IN THE CASE OF KEDARNATH JUTE MFG. CO.LT D. VS. CIT(CENTRAL), CALCUTTA [1971] 82 ITR 363 (SC). IN THE SAID CAS E, THE ASSESSEE HAD DISPUTED THE LIABILITY OF SALES TAX AND, THEREFORE, THE SAME WAS ITA NOS.3826 & 3380/D/2010 3 DISALLOWED BY THE ASSESSING OFFICER ON THE GROUND T HAT (I) THE ASSESSEE HAD CONTESTED THE LIABILITY OF SALES TAX IN APPEALS , AND (II) NO PROVISION HAS BEEN MADE BY THE ASSESSEE IN THE BOOKS OF ACCOU NT. THE ORDER OF THE ASSESSING OFFICER WAS UPHELD TILL THE HIGH COUR T. ON APPEAL, HONBLE APEX COURT ALLOWED THE ASSESSEES APPEAL HO LDING AS UNDER:- THAT THE MOMENT A DEALER MADE EITHER PURCHASES OR SALES WHICH WERE SUBJECT TO SALES TAX, THE OBLIGATION TO PAY THE TAX AROSE. ALTHOUGH THAT LIABILITY COULD NOT BE EN FORCED TILL QUANTIFICATION WAS EFFECTED BY ASSESSMENT PROCEEDI NGS, THE LIABILITY FOR PAYMENT OF TAX WAS INDEPENDENT OF THE ASSESSMENT. THE ASSESSEE, WHICH FOLLOWED THE MERCA NTILE SYSTEM OF ACCOUNTING, WAS ENTITLED TO DEDUCT FROM T HE PROFITS AND GAINS OF ITS BUSINESS LIABILITY TO SALE S TAX WHICH AROSE ON SALES MADE BY IT DURING THE RELEVANT PREVI OUS YEAR. THE ASSESSEE WAS ENTITLED TO THE DEDUCTION O F THE SUM OF RS.1,49,776 BEING THE AMOUNT OF SALES TAX WH ICH IT WAS LIABLE UNDER THE LAW TO PAY DURING THE RELEVANT ACCOUNTING YEAR. THAT LIABILITY DID NOT CEASE TO B E A LIABILITY BECAUSE THE ASSESSEE HAD TAKEN PROCEEDING S BEFORE HIGHER AUTHORITIES FOR GETTING IT REDUCED OR WIPED OUT SO LONG AS THE CONTENTION OF THE ASSESSEE DID N OT PREVAIL. (EMPHASIS BY UNDERLINING PROVIDED BY US) 6. THAT THE RATIO OF THE ABOVE DECISION OF HONBLE APEX COURT WOULD BE SQUARELY APPLICABLE TO THE CASE OF THE ASSESSEE. AT PAGE 42 OF THE ASSESSEES PAPER BOOK, THERE IS A BILL OF PROPERTY TAX RAISED BY NDMC RAISING THE DEMAND OF ` 92,81,500/- FOR THE FY 2001-02 I.E., RELEVANT TO THE ASSESSMENT YEAR UNDER APPEAL. THAT THE ASSESSE E, VIDE CHEQUE NO.035693 DATED 11.10.2001, MADE THE PAYMENT OF ENT IRE DEMAND OF ` 92,81,500/-. THUS, WE FIND THAT THE DEMAND OF PROP ERTY TAX WAS RAISED DURING THE ACCOUNTING YEAR RELEVANT TO THE A SSESSMENT YEAR UNDER CONSIDERATION, IT PERTAINED TO THE PREVIOUS Y EAR UNDER CONSIDERATION AND THE PAYMENT FOR THE SAME HAS ALSO BEEN MADE DURING THE YEAR UNDER CONSIDERATION. NOW, AS PER A SSESSING OFFICER, THE ASSESSEE HAS DISPUTED THE DEMAND. THOUGH AT TH E TIME OF HEARING BEFORE US IT IS STATED BY THE LEARNED COUNSEL THAT IN THE FORWARDING ITA NOS.3826 & 3380/D/2010 4 LETTER ONLY THE ASSESSEE HAS MENTIONED THAT THE DEM AND RAISED IS CONTRARY TO LAW AND THE ASSESSEE IS MAKING PAYMENT UNDER PROTEST, HOWEVER, THEREAFTER, THE ASSESSEE HAS NOT CHALLENGE D THE ABOVE DEMAND BEFORE ANY COURT OF LAW. HOWEVER, IN VIEW O F THE ABOVE DECISION OF HONBLE APEX COURT, IT IS EVIDENT THAT EVEN IF THE ASSESSEE HAS DISPUTED THE LIABILITY, IT WILL BE NO BAR IN AL LOWING THE DEDUCTION FOR THE SAME UNLESS AND UNTIL THE ASSESSEE GOT RELIEF I N THIS REGARD. IT IS NOT IN DISPUTE THAT THERE WAS NO REDUCTION IN LIABI LITY OF PROPERTY TAX DURING THE ACCOUNTING YEAR RELEVANT TO THE ASSESSME NT YEAR UNDER CONSIDERATION. WE, THEREFORE, RESPECTFULLY FOLLOWI NG THE ABOVE DECISION OF HONBLE APEX COURT, HOLD THAT THE ASSESSEE IS EN TITLED TO DEDUCTION FOR THE ENTIRE LIABILITY OF ` 92,81,500/-. ACCORDINGLY, WE FIND NO MERIT IN THE REVENUES APPEAL. THE SAME IS DISMISSED. WE A LSO ALLOW THE DISALLOWANCE SUSTAINED BY THE LEARNED CIT(A) AMOUNT ING TO ` 69,748/- THEREBY ALLOWING GROUND NO.3 OF THE ASSESSEES CROS S-APPEAL. 7. GROUND NOS.1 & 2 OF THE ASSESSEES CROSS-APPEAL I.E. ITA NO.3380/DEL/2010 IS WITH REGARD TO VALIDITY OF ISSU E OF NOTICE UNDER SECTION 148. HOWEVER, AT THE TIME OF HEARING BEFOR E US, IT IS STATED BY THE LEARNED COUNSEL THAT IF THE DEDUCTION OF LIABIL ITY IS ALLOWED ON MERITS, GROUND NOS.1 & 2 MAY BE TREATED AS NOT PRES SED. AS WE HAVE ALLOWED THE ENTIRE DEDUCTION FOR LIABILITY, GROUND NOS.1 & 2 OF THE ASSESSEES APPEAL ARE TREATED AS NOT PRESSED AND RE JECTED AS SUCH. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED AND THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. DECISION PRONOUNCED IN THE OPEN COURT ON 31 ST OCTOBER, 2013. SD/- SD/- ( (( (CHANDRA MOHAN GARG CHANDRA MOHAN GARG CHANDRA MOHAN GARG CHANDRA MOHAN GARG) )) ) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT DATED : 31.10.2013 VK. ITA NOS.3826 & 3380/D/2010 5 COPY FORWARDED TO: - 1. REVENUE : ASSISTANT COMMISSIONER OF INCOME T AX, ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE CIRCLE CIRCLE CIRCLE- -- -16(1), NEW DEL 16(1), NEW DEL 16(1), NEW DEL 16(1), NEW DELHI. HI.HI. HI. 2. ASSESSEE : M/S THE HINDUSTAN TIMES LIMITED, M/S THE HINDUSTAN TIMES LIMITED, M/S THE HINDUSTAN TIMES LIMITED, M/S THE HINDUSTAN TIMES LIMITED, 9 99 9 TH THTH TH FLOOR, HT HOUSE, 18 FLOOR, HT HOUSE, 18 FLOOR, HT HOUSE, 18 FLOOR, HT HOUSE, 18- -- -20, K.G. MARG, 20, K.G. MARG, 20, K.G. MARG, 20, K.G. MARG, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 001. 110 001. 110 001. 110 001. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR