ACIT, New Delhi V. M/s Delhi Tourism Transporation Corporation Ltd., New Delhi

ITA 4892/DEL/2009

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 0454 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-02-2011
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 17-02-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 30-12-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: STEPHEN GEORGE
• Assessee Lawyers: ALOK GUPTA UDAY AGGARWAL
• Keywords: Revised return

Judgement Text

ITA NO. 4892/DEL/2009 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B NEW DELHI BEFORE SHRI C.L. SETHI, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 4892/DEL/2009 A.Y. : 2006-07 ACIT, CIRCLE 10(1), NEW DELHI VS. M/S DELHI TOURISM TRANSPORTATION CORPORATION LTD., 18-A, DDA SCO COMPLEX, DEFENCE COLONY, NEW DELHI (PAN/GIR NO. : AAACD0169J) (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) ASSEESSEE BY : SH. ALOK GUPTA/ UDAY AGGARWAL, CA DEPARTMENT BY : SH. STEPHEN GEORGE, C.I.T.(D.R.) ORDER ORDER ORDER ORDER PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 19/10/ 2009 PERTAINING TO ASSESSMENT YEAR 2006-07. 2. THE FIRST ISSUE RAISED READS AS UNDER:- ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN DE LETING THE ADDITION MADE OF ` 18,31,02,105/- ON ACCOUNT OF THE AMOUNT TRANSFERRED TO TRANSPORTATION AND INFRASTRUCTURE UT ILISATION FUND (TIUF). ITA NO. 4892/DEL/2009 2 ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LA W, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN DE LETING THE ADDITION MADE OF ` 1,25,42,494/- ON ACCOUNT OF BANK INTEREST ON TIUF FUND. 3. LD. DEPARTMENTAL REPRESENTATIVE OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER WHEREAS LD. COUNSEL OF THE ASSESS EE SUPPORTED THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS ). HE ALSO SUBMITTED THAT ISSUE IS COVERED IN FAVOUR OF THE AS SESSEE BY TRIBUNALS DECISION IN ASSESSEES OWN CASE IN EARLIER YEARS V IDE ORDER DATED 25.6.2009 IN ITA NO. 1615/DEL/2009 FOR ASSESSMENT Y EAR 2005-06. THE TRIBUNAL HAS REFERRED THE DECISION OF THE TRIBU NAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2004-05 IN ITA NO. 3505 DATED 24.4.2009. THE TRIBUNAL HAD ADJUDICATED THE ISSUE IN ASSESSMENT YEAR 2005-06 AS UNDER:- WE HAVE CONSIDERED THE RIVAL SUBMISSION, PERUSED TH E MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDER S OF THE AUTHORITIES BELOW. WE FIND THAT IN ASSESSMENT YEAR 2004-05 ALSO GROUND NO. 1, 2, 3 ARE IDENTICAL AND I N THAT YEAR, THESE GROUNDS OF REVENUES APPEAL WERE REJEC TED BY THE TRIBUNAL ON THE BASIS THAT IN EARLIER YEARS AL SO I.E. IN ASSESSMENT YEAR 2003-04 AS PER ITA NO. 2622/D/06 DA TED 4.1.2008, SIMILAR ISSUE HAS BEEN DECIDED BY THE TRIB UNAL IN FAVOUR OF THE ASSESSEE BY FOLLOWING OTHER TRIBUNAL DECISIONS IN ASSESSEES OWN CASE FOR ASSESSMENT YEARS 2001-02 AND 2002-03 BY HOLDING THAT THE AMOUNTS TRANSFERRED TO T IUF HAD TO BE EXCLUDED FROM THE COMPUTATION OF TOTAL INCO ME IN ACCORDANCE WITH THE JUDGEMENT OF HONBLE APEX COURT ITA NO. 4892/DEL/2009 3 RENDERED IN THE CASE OF MOTI LAL CHHANDAMI LAL JAIN V S. C.I.T., 190 ITR 1(SC). FINDING NO REASON TO DIFFER W ITH THE SAID ORDERS OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR EARLIER YEARS, THE FACTS REMAINING THE SAME, ALL THESE GROU NDS ARE REJECTED. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMIS SED. 4. SINCE THE FACTS IN THE PRESENT CASE ARE IDENTICA L. BOTH THE PARTIES FAIRLY AGREED THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE TRIBUNAL IN EARLIER ASSESSMENT YEARS . ACCORDINGLY, WE UPHOLD THE ORDER OF THE LD. COMMISSIONER OF INCOME T AX (APPEALS) AND DECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE. 5. THE NEXT ISSUE RAISED IS THAT LD. COMMISSIONE R OF INCOME TAX (APPEALS) ERRED IN DELETING THE ADDITION OF ` 1,00 ,73,539/- ON ACCOUNT OF LIABILITY FOR LEAVE ENCASHMENT. 6. THIS CLAIM OF THE ASSESSEE PERTAINING TO LEAVE EN CASHMENT WAS NOT ENTERTAINED BY THE ASSESSING OFFICER ON THE GR OUND THAT ASSESSEE HAS NOT FILED REVISED RETURN AND CLAIMED THE SAME DU RING THE ASSESSMENT PROCEEDINGS. HOWEVER, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ALLOWED THE ASSESSEES CLAIM BY REFERR ING THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF BHARAT EARTH MOVERS [2000] 245 ITR 428. 7. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE R ECORDS. WE FIND THAT ASSESSING OFFICER HAS NOT CONSIDERED THE ASSESSEES CLAIM AS IT WAS NOT MADE IN THE RETURN OF INCOME OR BY FI LING THE REVISED RETURN OF INCOME. HOWEVER, LD. COMMISSIONER OF INCO ME TAX (APPEALS) HAS ALLOWED THE CLAIM BY REFERRING THE HO NBLE APEX COURT ITA NO. 4892/DEL/2009 4 DECISION ON MERITS WITHOUT CONSIDERING THE ASSESSI NG OFFICERS OBJECTION IN THIS REGARD. HOWEVER, IN OUR CONSIDERED OPINION, THE TRIBUNAL IS EMPOWERED TO CONSIDER THIS ISSUE. ACCO RDINGLY, WE ALLOW THE ASSESSEE TO RAISE THIS ISSUE. WE, THEREFORE, REMIT THIS ISSUE TO THE FILES OF THE ASSESSING OFFICER TO CONSIDER THE SAM E AFRESH IN LIGHT OF THE HONBLE APEX COURT DECISION IN THE CASE OF BHARAT EARTH MOVERS [2000] 245 ITR 428. 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE STANDS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 18/02/2011. SD/ SD/ SD/ SD/- -- - SD/ SD/ SD/ SD/- -- - [C.L. SETHI [C.L. SETHI [C.L. SETHI [C.L. SETHI] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 18/02/2011 SRB COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES ITA NO. 4892/DEL/2009 5