ACIT, New Delhi V. M/s Graziano Transmissioni India Pvt. Ltd., New Delhi

ITA 4789/DEL/2010

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 0692 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 06-01-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 02-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D N KAR

Judgement Text

I.T.A. NO. 4789 /DEL/2010 1/2 IN THE INCOME TAX APPELLATE TRIBUNAL, IN THE INCOME TAX APPELLATE TRIBUNAL, IN THE INCOME TAX APPELLATE TRIBUNAL, IN THE INCOME TAX APPELLATE TRIBUNAL, NEW DELHI, BENCH C NEW DELHI, BENCH C NEW DELHI, BENCH C NEW DELHI, BENCH C BEFORE SHRI R. P. TOLANI, JUDICIAL MEMBER AND SHRI K. D. RANJAN, ACCOUTANT MEMBER ITA NO. 4789 /DEL/2010 (ASSESSMENT YEAR2003-04 ) ACIT, CIRCLE 12(1), VS. M/S. GRAZIANO TRANSMISSION NEW DELHI. INDIA PVT. LTD., 1414, ANSAL TOWER NEHRU PLACE, NEW DELHI (APPELLANTS) (RESPONDENTS) PAN / GIR NO. AAACH4258M APPELLANT BY: SHRI D.N. KAR, CIT DR RESPONDENT BY: NONE ORDER ORDER ORDER ORDER PER K. D. RANJAN, AM: PER K. D. RANJAN, AM: PER K. D. RANJAN, AM: PER K. D. RANJAN, AM: 1. THIS APPEAL BY THE REVENUE FOR THE ASSESSMENT YE AR 2003-04 ARISES OUT OF THE ORDER OF LD. CIT(A) XX, NEW DELHI . THE GROUNDS OF APPEAL RAISED BY THE REVENUE ARE REPRODUCED AS UNDE R: 1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ORDER OF THE CIT(A) IS ERRONEOUS, PERVERSE, ILL EGAL AND AGAINST THE PROVISIONS OF LAW WHICH IS LIABLE TO BE SET ASIDE. 2) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION O F ` 5,45,899/- MADE BY THE A.O. ON ACCOUNT OF PAYMENT OF INTEREST U/S 40(A)(I). 2. NONE APPEARED ON BEHALF OF THE ASSESSEE ON THE A PPOINTED DATE OF HEARING. WE HAVE HEARD LD. D.R. FOR THE RE VENUE AND DECIDE THE APPEAL OF THE REVENUE EX-PARTE QUA THE A SSESSEE. 3. THE ONLY ISSUE FOR CONSIDERATION IN THIS APPEAL RELATES TO DELETING THE ADDITION OF ` 5,45,899/- MADE BY THE A .O. ON ACCOUNT OF PAYMENT OF INTEREST U/S 40(A)(I) OF THE ACT. THE F ACTS O THE CASE STATED IN BRIEF ARE THAT THE ASSESSEE HAD PAID INTE REST OF ` 1,40,52,853/- OUT OF INDIA. ON EXAMINATION IT WAS NOTED BY ASSESSING OFFICER THAT THE ASSESSEE HAD DEDUCTED TA X ON AMOUNT OF ` 1,35,06,954/- AND ON THE BALANCE AMOUNT OF ` 5,45,8 99/-, NO TAX AT I.T.A. NO. 4789 /DEL/2010 2/2 SOURCE WAS DEDUCTED. THE A.O., THEREFORE, DISALLOW ED THE AMOUNT OF ` 5,45,899/- U/S 40(A)(I) OF THE ACT. 4. BEFORE CIT(A), IT WAS SUBMITTED THAT THE A.O. HA D NOT EXAMINED; THE FACTS OF THE CASE CORRECTLY AND HIS D ECISION IS CONTRARY TO THE POSITION OF LAW. THE PROVISIONS OF SECTION 40(A)(I) WOULD BE ATTRACTED ONLY IF DEDUCTION OF INTEREST IS CLAIMED BUT TAX IS NOT DEDUCTED. THE ASSESSEE HAS CLAIMED DEDUCTION O F INTEREST AMOUNTING TO ` 1,35,06,954/- AND NOT OF ` 1,40,52,8 53/-. THEREFORE, DISALLOWANCE MADE BY THE A.O. IS NOT JUSTIFIED. LD . CIT(A) ON CONSIDERATION OF FACTS, DELETED THE ADDITION ON THE GROUND THAT ADDITION OF ` 5,45,899/- WAS PRIMA FACIE FACTUALLY INCORRECT. 5. WE HAVE HEARD LD. CIT (DR) AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. FROM THE FACTS STATED ABOVE, IT IS CLEAR THAT HE ASSESSEE HAD CLAIMED ` 1,35,06,954/- AS INTEREST ON EXTERNAL COMMERCIAL BORROWINGS ON WHICH TAX AT SOURCE WAS DE DUCTED. HOWEVER THE A.O. HAD TAKEN THE FIGURE AT ` 1,40,52, 853/-. SINCE THE ASSESSEE HAD CLAIMED DEDUCTION OF INTEREST AMOUNTIN G TO ` 1,35,06,954/- DISALLOWANCE CANNOT BE MADE IN RESPEC T OF THE AMOUNT WHICH HAS NOT BEEN CLAIMED AS DEDUCTION. TH EREFORE, LD. CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. 8. THE DECISION WAS PRONOUNCED IN THE OPEN COURT ON 06.01.2011 AFTER CLOSE OF HEARING. SD./- SD./- (R. P. TOLANI) (K. D. RANJAN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 06 TH JAN., 2011 SP. COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT TRUE COPY: BY ORDER 4. CIT(A) 5. DR DY. REGISTRAR, ITAT, NEW DELHI