Noida Power Co. Ltd., Gr.Noida V. DCIT, Circle-2, Noida

ITA 4967/DEL/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 3215 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2014-2015
• Appeal Filed On: 03-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SUSHMITA BASU
• Keywords: Depreciation; Opportunity of being heard; Principle of natural justice; Unabsorbed depreciation; Set aside
• Section: 143(3); 234B; 115JB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: FRIDAY-E NEW DELHI BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER I.T.A. NO. 4967/DEL/2017 ASSESSMENT YEAR: 2014-15 NOIDA POWER CO. LTD., VS. DCIT, CIRCLE-2, GR. NOIDA, NOIDA COMMERCIAL COMPLEX, H-BLOCK, ALPHA-II SECTOR GREATER NOIDA NOIDA UTTAR PRADESH 201310 (PAN: AAACN4984D) (ASSESSEE) (RESPONDENT) ASSESSEE BY : MS. SUSHMITA BASU, CA REVENUE BY : SH. PRADEEP SINGH GAUTAM, SR. DR. ORDER PER H.S. SIDHU, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER DATED 31.5.2017 PASSED BY THE LD. CIT(A)-I, NEW DELHI REL ATING TO ASSESSMENT YEAR 2014-15 ON THE FOLLOWING GROUNDS. THE GROUNDS MENTIONED HEREINAFTER ARE WITHOUT PREJUDICE TO ONE ANOTHER. 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ORDER DATED 30TH MAY, 2017 PASSED BY THE LEARNED CIT (APPEALS) UPHOLDING THE ORDER DATED 22ND DECEMBER, 2016 PASSED UNDER SECTION 143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'ACT') BY THE ASSESSING OFFICER IS BA D IN LAW. 2 2. THAT THE LEARNED CIT (APPEALS) ERRED IN NOT ADJUDICATING GROUND NOS. 2 TO 6 RAISED BY THE APPELLANT IN THE GROUNDS OF APPEAL FILED BEFORE HIM . 3(A) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT (APPEALS) ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER, IN DISALLOWING THE APPELLANT'S CLAIM FOR DEDUCTION OF AN AGGREGATE SUM OF RS. 50,27,61,120/-, BEING THE DIFFERENCE BETWEEN THE PURCHASE PRICE OF POWER BILLED BY UTTAR PRADESH POWER PURCHASE CORPORATION LIMITED ('UPPCL') AMOUNTING TO RS. 1,61,26,43,888/- AND THE PURCHASE PRICE OF POWER DEBITED TO THE PROFIT & LOSS A/C. BY THE APPELLANT AMOUNTING TO RS. 1,10,98,82,768/-. 3(B) THAT THE LEARNED CIT (APPEALS) ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN HOLDING THE AFORESAID LIABILITY OF THE APPELLANT AS CONTINGENT IN NATURE. 3(C) THAT THE LEARNED CIT (APPEALS) ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN DISALLOWING THE APPELLANT'S CLAIM FOR DEDUCTION OF THE IMPUGNED SUM OF RS. 5O,27,61,120/- ON THE GROUND THAT THE APPELLANT ITSELF HAS CONSIDERED THE SAME TO BE DISPUTED AND THEREFORE NOT DEBITED THE SAME TO THE PROFIT AND LOSS ACCOUNT. 4(A) THAT THE LEARNED CIT (APPEALS) ERRED IN NOT ADJUDICATING GROUND NO.2 RAISED BY THE APPELLANT IN THE GROUNDS OF APPEAL FILED BEFORE HIM RELATING TO ALLOWANCE OF SET OFF OF BROUGHT FORWARD LOSSES AND UNABSORBED DEPRECIATION WHILE CALCULATING TOTAL TAXABLE INCOME UNDER THE 3 PROVISIONS OF THE ACT OTHER THAN SECTION 115JB OF THE ACT. 4(B) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ACTION OF NOT ALLOWING SET OFF OF BROUGHT FORWARD LOSSES AND UNABSORBED DEPRECIATION WHILE CALCULATING TOTAL TAXABLE INCOME UNDER THE PROVISIONS OF THE ACT OTHER THAN SECTION 115JB OF THE ACT IS BAD IN LAW. 5(A) THAT THE LEARNED CIT (APPEALS) ERRED IN NOT ADJUDICATING GROUND NO.3 RAISED BY THE APPELLANT IN THE GROUNDS OF APPEAL FILED BEFORE HIM RELATING TO NON-QUANTIFICATION OF ENTITLED AMOUNT O F BUSINESS LOSS AND UNABSORBED DEPRECIATION TO BE CARRIED FORWARD. 5(B) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ACTION OF NOT QUANTIFYING THE AMOUNT OF BUSINESS LOSS AND UNABSORBED DEPRECIATION TO BE CARRIED FORWARD IS BAD IN LAW. 6(A) THAT THE LEARNED CIT (APPEALS) ERRED IN NOT ADJUDICATING GROUND NO.4 RAISED BY THE APPELLANT IN THE GROUNDS OF APPEAL FILED BEFORE HIM RELATING TO NON-QUANTIFICATION OF THE ENTITLED AMOUNT OF MAT CREDIT TO BE CARRIED FORWARD AS PER THE PROVISIONS OF SECTION 115JAA OF THE ACT. 6(B) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ACTION OF NOT QUANTIFYING THE AMOUNT OF MAT CREDIT TO BE CARRIED FORWARD AS PER THE PROVISIONS OF SECTION 115JAA OF THE ACT IS BAD IN LAW. 4 7(A) THAT THE LEARNED CIT (APPEALS) ERRED IN NOT ADJUDICATING GROUND O. 5 RAISED BY THE APPELLANT IN THE GROUNDS OF APPEAL FILED BEFORE HIM RELATING TO CHARGING OF INTEREST BY THE ASSESSING OFFICER U/S. 234A OF THE ACT AMOUNTING TO INR 32,75,420. 7(B) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ACTION OF CHARGING INTEREST U/S. 234A OF THE ACT AMOUNTING TO INR 32,75,420 IS BAD IN LAW. 8(A) THAT THE LEARNED CIT (APPEALS) ERRED IN NOT ADJUDICATING GROUND NO.6 RAISED BY THE APPELLANT IN THE GROUNDS OF APPEAL FILED BEFORE HIM RELATING TO CHARGING OF INTEREST BY THE ASSESSING OFFICER U/S. 234B OF THE ACT AMOUNTING TO INR 91,96,656. 8(B) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ACTION OF CHARGING INTEREST U/S. 234B OF THE ACT AMOUNTING TO INR 91,96,656 IS BAD IN LAW. 9. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND, MODIFY, RESCIND, SUPPLEMENT OR ALTER ANY OF THE GROUNDS STATED HEREINABOVE EITHER BEFORE OR AT THE TIME OF HEARING OF THIS APPEAL. 2. AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSE SSEE STATED THAT LD. CIT(A) HAS PASSED THE NON-SPEAKING ORDER WITHOUT GI VING SUFFICIENT OPPORTUNITY TO REPRESENT AND SUBSTANTIATE THE CASE OF THE ASSESSEE. HENCE, HE REQUESTED THAT THE ISSUES IN DISPUTE MAY BE SET ASIDE TO THE FILE OF THE LD. CIT(A) FOR FRESH ADJUDICATION, AFTER GI VING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5 3. LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIE S BELOW. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS ESPECIALLY THE IMPUGNED ORDER DATED 31.5.2017 PASSED BY THE L D. CIT(A). WE ARE OF THE VIEW THAT LD. CIT(A) HAS PASSED THE NON-SPEAKI NG ORDER, WHICH IS CONTRARY TO LAW AND FACTS ON THE FILE AND AGAINST T HE PRINCIPLE OF NATURAL JUSTICE. THEREFORE, IN THE INTEREST OF JUSTICE, W E ARE SETTING ASIDE THE ISSUES IN DISPUTE TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRESH, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ASSESSEE IS DIRECTED THROUGH HIS COUNSEL TO FULLY C OOPERATE WITH THE LD. CIT(A) IN THE PROCEEDINGS AND DID NOT TAKE ANY UNN ECESSARY ADJOURNMENT WITH THE LIBERTY TO FILE ANY EVIDENCE BEFORE THE LD . CIT(A) TO SUBSTANTIATE ITS CASE. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 04/12/2019. SD/- SD/- [R.K. PANDA] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 04/12/2019 SRB COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES