ACIT, New Delhi V. M/s. Sprint Corporation, New Delhi

ITA 381/DEL/2010

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 6671 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-11-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 12-11-2010
• Assessment Year: misc
• Appeal Filed On: 27-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KISHORE B
• Assessee Lawyers: V K GARG; A K CHOPRA
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : G NEW DELHI BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI B.C.MEENA, ACCOUNTANT MEMBER I.T.A NOS. 381,382/DEL/10 ASSTT. YEARS 1995-96, 1996-97 ACIT, CIRCLE 22(1), NEW DELHI. VS. M/S. SPRINT CORPORATION, D-867, NEW FRIENDS COLONY, NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI KISHORE B RESPONDENT BY: SH. A.K. CHOPRA, CA & SH. V.K. GARG , ADVOCATE ORDER PER RAJPAL YADAV, JM: THE PRESENT TWO APPEALS ARE DIRECTED AT THE INSTAN CE OF REVENUE AGAINST THE SEPARATE ORDERS OF EVEN DATE I.E. 9.11. 2009 PASSED BY THE LD. CIT(A) IN ASSTT. YEARS 1995-96 AND 1996-97. TH E COMMON GRIEVANCE OF THE REVENUE IN BOTH THE YEARS IS WHETHER LD. FI RST APPELLATE AUTHORITY IS JUSTIFIED IN ENTERTAINING THE PETITION U/S 154 O F THE INCOME TAX ACT AND ITA NOS. 381,382/DEL/10 ASSTT. YEARS 1995-96,1996-97 2 HEREBY HOLDING THAT ADJUSTMENT MADE BY THE AO U/S 1 43(1) (A) OF THE ACT ARE NOT JUSTIFIED. 2. THE FACTS AND CIRCUMSTANCES IN BOTH THE ASSTT. Y EARS ARE COMMON. IN BRIEF THE ASSESSEE HAS CLAIMED DEDUCTION U/S 80- O ON THE GROSS RECEIPTS. LD. AO PROCESSED THESE RETURNS U/S 143(1) (A) AND HELD THAT DEDUCTION U/S 80-O IS ADMISSIBLE ON NET RECEIPT AND NOT ON GROSS RECEIPTS. DISSATISFIED WITH THIS ORDER ASSESSEE F ILED AN APPEAL BEFORE THE LD. CIT(A). IT CONCEDED THE ISSUE IN FAVOUR OF ASSESSEE IN VIEW OF THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT I N THE CASE OF S.R. GROVER VS. ACIT 200 CTR(DEL) 183. THE HONBLE SUPRE ME COURT SUBSEQUENTLY ADJUDICATED THIS ISSUE IN KVAVERNER JO HN BROWN ENGG. (INDIA) (P.) LTD. REPORTED IN 170 TAXMAN 305 / ITR/ 03. THE HONBLE SUPREME COURT IN THIS DECISION HAS HELD THAT THERE WERE CONFLICTING JUDGMENTS ON THE INTERPRETATION OF 80-O WHETHER DED UCTION WILL BE ADMISSIBLE ON NET RECEIPTS OR ON GROSS RECEIPTS. TH EREFORE, AO CANNOT NOT MAKE PRIMA FACIE ADJUSTMENT U/S 143 (1)(A) AND HELD THE ASSESSEE LIABLE TO PAY ADDITIONAL TAX U/S 143(1A). THE ASSE SSEE PUTTING RELIANCE UPON THIS DECISION FILED MISCELLANEOUS APPLICATION BEFORE THE LD. CIT(A) U/S 154 OF THE INCOME TAX ACT AND CONTENDED THAT TH IS ORDER IS SUFFERING FROM AN APPARENT ERROR IN VIEW OF THIS SUPREME COUR T DECISION. LD. CIT(A) AFTER A DETAILED ANALYSIS AND PUTTING RELIAN CE HONBLE SUPREME ITA NOS. 381,382/DEL/10 ASSTT. YEARS 1995-96,1996-97 3 COURT DECISION AS WELL AS CIRCULAR OF THE BOARD BEA RING NO. 68 DATED 17.11.1971 HAS HELD THAT AO COULD HAVE NOT MADE ANY ADJUSTMENT U/S 143(1)(A) OF THE ACT. 3. WITH THE ASSISTANCE OF LD. REPRESENTATIVE WE HAV E GONE THROUGH THE RECORD CAREFULLY. THE HONBLE SUPREME COURT IN THE CASE OF KVAVERNER JOHN BROWN ENGG. (INDIA) (P) LTD. (SUPRA) HAS HELD THAT CONFLICTING JUDGMENTS ON INTERPRETATION OF SECTION 80-O WERE AVAILABLE AT THE RELEVANT TIME AND AO CANNOT MAKE PRIMA FACIE AD JUSTMENT U/S 143 (1)(A) OF THE ACT AND HELD THE ASSESSEE LIABLE TO P AY ADDITIONAL TAX U/S 143(1A). IN VIEW OF THIS DECISION LD. CIT(A) HAS RI GHTLY ENTERTAINED THE APPLICATION OF ASSESSEE AND HAS RIGHTLY REFERRED TH E CIRCULAR OF THE BOARD BEARING NO. 68 DATED 17.11.1971. CONSIDERING THE DE TAILED ORDER OF LD. FIRST APPELLATE AUTHORITY WE DO NOT SEE ANY REASON TO INTERFERE IN IT. BOTH THE APPEALS OF REVENUE ARE THEREFORE REJECTED. 4. IN THE RESULT BOTH THE APPEALS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19.11.2010. SD/- [B.C. MEENA] [RAJPAL YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 19.11.2010 VEENA ITA NOS. 381,382/DEL/10 ASSTT. YEARS 1995-96,1996-97 4 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT