Huawei Telecommunication (India) Company Pvt. Ltd., Gurgaon V. ACIT, Gurgaon

ITA 49/DEL/2011

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 0155 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 15-03-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 05-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A D MEHROTRA; NARENDER K CHAND SR D
• Assessee Lawyers: TARUN ARORA
• Keywords: Opportunity of being heard; Competent authority; Non passing of speaking order

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, NEW DELHI, BENCH C NEW DELHI, BENCH C NEW DELHI, BENCH C NEW DELHI, BENCH C BEFORE SHRI I. P. BANSAL, JUDICIAL MEMBER AND SHRI A K GARODIA, ACCOUTANT MEMBER ITA NO.49 /DEL/2011 (ASSESSMENT YEAR 2006-07) HUAWEI TELECOMMUNICATIONS (INDIA) VS. ACIT, CIRCLE 1(1), COMPANY PRIVATE LIMITED, GURGAON 14 TH FLOOR, TOWER C, UNITECH CYBER PARK, SECTOR 39, GURGAON, HARYANA (APPELLANTS) (RESPONDENTS) PAN / GIR NO. AABCH1376E APPELLANT BY: SHRI TARUN ARORA, AR RESPONDENT BY: SHRI A. D. MEHROTRA, CIT DR & SHRI NARENDER K. CHAND SR. DR ORDER ORDER ORDER ORDER PER A. K. GARODIA, AM: PER A. K. GARODIA, AM: PER A. K. GARODIA, AM: PER A. K. GARODIA, AM: 1. THIS IS ASSESSEES APPEAL, WHICH IS DIRECTED AGA INST THE ASSESSMENT ORDER PASSED BY THE A.O. ON 18.11.2010 U /S 144C/143(3) OF THE I. T. ACT, 1961 AS PER THE DIREC TIONS GIVEN BY D RP U/S 144C(V) OF THE I. T. ACT AS PER THE ORDER DA TED 30.09.2010 FOR THE ASSESSMENT YEAR 2006-07. 2. THE GROUND NO.1 OF APPEAL RAISED BY THE ASSESSEE READS AS UNDER: THAT THE ASSESSMENT ORDER PASSED IN PURSUANCE TO T HE DIRECTIONS ISSUED BY THE LD. DISPUTE RESOLUTION PAN EL (LD. DRP) IS A VITIATED ORDER AS THE LD. DRP ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE ADDITION MADE BY THE L D. A.O. TO THE APPELLANTS INCOME BY ISSUING A NON-SPEAKING OR DER WITHOUT APPROPRIATE APPLICATION OF MIND. 3. AS PER THE GROUND, THE GRIEVANCE OF THE ASSESSEE IS THAT THE ORDER PASSED BY DRP IS NOT PROPER BECAUSE THE SAME IS A NON SPEAKING ORDER WITHOUT APPROPRIATE APPLICATION OF M IND. WHEN WE I.T.A. NO. 49/DEL/2011 2 EXAMINED THE ORDER OF DRP, WE FIND THAT THE GRIEVAN CE OF THE ASSESSEE IS CORRECT BECAUSE THIS IS A ONE LINE ORDE R WHICH READS AS THE A.O. IS DIRECTED TO COMPLETE THE ASSESSMENT AS PROPOSED IN THE DRAFT ASSESSMENT ORDER. BEFORE GIVING THIS ONE LI NE DIRECTION, IT IS STATED BY THE DRP THAT THEY HAVE GONE THROUGH THE D RAFT ASSESSMENT ORDER AND THEY HAVE HEARD THE AR AND HAV E CONSIDERED THE OBJECTIONS OF THE ASSESSEE CAREFULLY AND AFTER CONSIDERING THE SAME, THEY ARE OF THE OPINION THAT THE DRAFT ASSESS MENT ORDER PROPOSED BY THE A.O. IS TO BE APPROVED. WE FIND TH AT EVEN THIS IS NOT RECORDED BY DRP AS TO WHAT ARE THE OBJECTIONS O F THE ASSESSEE AND WHAT WERE THE ARGUMENTS OF THE LD. A.R. AND THE Y HAVE SIMPLY DIRECTED THE A.O. TO COMPLETE THE ASSESSMENT AS PRO POSED IN THE DRAFT ASSESSMENT ORDER. UNDER THESE FACTS, THIS OR DER OF DRP IS NOT PROPER. THE HONBLE JURISDICTIONAL HIGH COURT IN T HE CASE OF VODAPHONE ESSAR LTD. VS DRP-II IN W.P. (CIVIL) NO.7 028/2010 HELD AS UNDER: JUDGEMENT JUDGEMENT JUDGEMENT JUDGEMENT HEARD MR. SYALI, LD. SR. COUNSEL FOR THE PETITIONER AND MR. SANJEEV SABHARWAL, LD. STANDING COUNSEL FOR THE REV ENUE. BY THIS WRIT PETITION, THE PETITIONER HAS PRAYED FO R ISSUE OF A WRIT OF CERTIORARI FOR QUASHMENT OF THE ORDER DAT ED 30 TH SEPTEMBER, 2010 PASSED BY THE DISPUTE RESOLUTION PA NEL- II, THE FIRST RESPONDENT HEREIN. WHAT COULD HAVE B EEN A MATTER OF DEBATE WAS PUT TO REST BY MR. SANJEEV SABHARWAL, LD. COUNSEL FOR THE REVENUE BY STATING T HAT THE ORDER PASSED ON 30 TH SEPTEMBER, 2010, CONTAINED IN ANNEXURE-P1, DESERVES TO BE QUASHED AND THE MATTER BE REMANDED TO THE SAID AUTHORITY FOR FRESH ADJUDICATI ON. IN VIEW OF THE AFORESAID FAIR CONCESSION, THE ORDER DATED 30 TH SEPTEMBER, 2010 PASSED BY THE RESPONDENT NO. 1 IS QUASHED AND THE MATER IS REMANDED TO THE SAID RESPONDENT TO ADJUDICATE AFRESH. BE IT NOTED, WHEN A QUASI JUDICIAL AUTHORITY DEALS WITH A LIST, IT IS O BLIGATORY ON ITS PART TO ASCRIBE COGENT AND GERMANE REASONS AS T HE SAME IS THE HEARD AND SOUL OF THE MATTER AND FURTHE R, THE SAME ALSO FACILITATES APPRECIATION WHEN THE ORDER I S CALLED IN QUESTION BEFORE THE SUPERIOR FORUM. NEED LES TO I.T.A. NO. 49/DEL/2011 3 SAY THAT THE COMPETENT AUTHORITY, WHILE PASSING THE ORDER, SHALL KEEP IN MIND THE ORDER DATED 29 TH NOVEMBER, 2010 WHEREIN WE HAD DIRECTED THAT THE PERIOD FROM T HE DATE OF FILING THE WRITE PETITION AND FOUR WEEKS AF TER ITS DISPOSAL SHALL STAND EXCLUDED, WHILE COMPUTING THE LIMITATION FOR THE DEPARTMENT TO PASS AN ASSESSMENT ORDER. THE WRIT PETITION IS ALLOWED TO THE EXTENT INDICATE D ABOVE WITHOUT ANY ORDER AS TO COSTS. ORDER DASTI UNDER THE SIGNATURES OF THE COURT MASTE R. [WPO (C) 7028/2010] 4. IN THE PRESENT CASE ALSO, NO REASONING HAS BEEN GIVEN BY DRP AND HENCE, THE ASSESSMENT ORDER ON THE BASIS OF THE SE NON- SPEAKING AND UNREASONED DIRECTIONS OF DRP CANNOT BE SUSTAINED. WHEN THIS WAS CONFRONTED TO BOTH THE SIDES I.E. LD. A.R. AND LD. D.R., NONE OF THEM COULD POINT OUT ANY REASON AS TO WHY T HE ENTIRE ISSUE SHOULD NOT BE RESTORED BACK TO THE FILE OF THE A.O. FOR A FRESH DECISION AFTER OBTAINING FRESH DIRECTIONS FROM DRP AND HENCE, BY RESPECTFULLY FOLLOWING THE JUDGMENT OF HON'BLE HIGH COURT OF DELHI RENDERED IN THE CASE OF VODAPHONE ESSAR LTD. (SUPRA ), WE SET ASIDE THE ORDER OF THE A.O. AND RESTORE THE ENTIRE MATTER BACK TO HIS FILE FOR A FRESH DECISION AFTER OBTAINING FRESH DIRECTIO NS FORM DRP. WHILE GIVING FRESH DIRECTIONS, DRP SHOULD KEEP IN MIND TH E JUDGMENT OF HON'BLE HIGH COURT OF DELHI RENDERED IN THE CASE OF VODAPHONE ESSAR LTD. (SUPRA) AND SUCH ORDER OF DRP SHOULD BE A SPEAKING AND REASONED ORDER. THIS GROUND OF ASSESSEES APPEALS IS ALLOWED FOR STATISTICAL PURPOSES. 5. IN VIEW OF OUR DECISION WITH REGARD TO GROUND NO .1 OF THE ASSESSEES APPEAL, OTHER GROUNDS RAISED BY THE ASSE SSEE DO NOT CALL FOR ANY ADJUDICATION AT THIS STAGE BECAUSE WE HAVE RESTORED BACK THE ENTIRE MATTER TO THE FILE OF THE A.O. FOR A FRE SH DECISION AFTER OBTAINING FRESH DIRECTIONS FROM DRP AND HENCE, ON T HESE OBJECTIONS ALSO, FRESH DECISION SHOULD BE TAKEN BY THE A.O. AN D DRP AFTER I.T.A. NO. 49/DEL/2011 4 PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE. BUT AT THIS STAGE, NO ADJUDICATION IS CALLED FOR FROM O UR SIDE ON THESE ISSUES. 6. IN THE RESULT, APPEAL OF THE ASSESSEE STANDS ALL OWED FOR STATISTICAL PURPOSES. 7. ORDER PRONOUNCED IN THE OPEN COURT ON THE CLOSE OF HEARING ON 15 TH MARCH, 2011. SD./- SD./- ( I. P. BANSAL) (A K GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED:15 TH MAR., 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