DCIT, New Delhi V. M/s. Airport Authority of India Ltd., New Delhi

ITA 5196/DEL/2015

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 4793 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 11 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-08-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2011-2012
• Appeal Filed On: 18-08-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Revised return
• Section: 115JB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : D : NEW DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIALMEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO.5196/DEL/2015 ASSESSMENT YEAR: 2011-12 DCIT, CIRCLE-2(1), NEW DELHI. VS AIRPORT AUTHORITY OF INDIA LTD., BLOCK-A, RAJIV GANDHI BHAWAN, SAFDARJUNG AIRPORT, NEW DELHI. PAN : AAACA6412D (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI J.K. MISHRA, CIT, DR DATE OF HEARING : 31.07.2019 DATE OF PRONOUNCEMENT : 09.08.2019 ORDER PER R.K. PANDA, AM: THE APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 8 TH JUNE, 2015 OF THE CIT(A)-1, NEW DELHI RELATING TO ASSESSM ENT YEAR 2011-12. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE FILED THE ORIGINAL RETURN OF INCOME ON 29 TH SEPTEMBER, 2011 DECLARING TOTAL INCOME OF RS.15,85 ,86,08,799/- AND DEEMED TOTAL INCOME U/S 115JB OF RS.13,93,53,11 ,611/-. SUBSEQUENTLY, REVISED RETURN WAS FILED ON 16 TH MARCH, 2013 DECLARING TOTAL INCOME AT ITA NO.5196/DEL/2015 2 RS.16,92,04,65,647/- AND DEEMED TOTAL INCOME OF RS. 13,93,53,11,611/-. AGAIN, THE SAID RETURN WAS REVISED ON 16 TH MARCH, 2013 DECLARING THE SAME AGGREGATE INCOME AS WELL AS DEEMED TOTAL INCOME. THE ASSESSEE CONTI NUES TO DERIVE INCOME FROM THE BUSINESS OF MAINTENANCE AND OPERATION OF AIR TRAFFI C AND AIR PORTS. ON BEING QUESTIONED BY THE ASSESSING OFFICER DURING THE ASSE SSMENT PROCEEDINGS REGARDING THE REASON FOR REVISING THE INCOME-TAX RETURN, IT W AS SUBMITTED THAT THE ASSESSEE HAD REVISED ITS RETURN OF INCOME BY INCREASING ITS INCO ME BY RS.106.18 CRORES TO GIVE EFFECT TO THE OBSERVATION OF THE CAG IN THE AUDIT R EPORT FOR F.Y. 2009-10 WHEREIN IT WAS STATED THAT REVERSAL OF INTEREST ON COMMENCING CAPITAL AMOUNTING TO RS.167.61 CRORES HAS BEEN SHOWN BELOW THE LINE. IT WAS SUBMI TTED THAT OUT OF THE TOTAL INTEREST OF RS.167.61 CRORES A SUM OF RS.61.43 CRORES WAS DI SALLOWED /ADDED BACK IN COMPUTATION OF INCOME BY THE ASSESSEE IN EARLIER YE ARS. THE ASSESSEE HAD REVISED ITS RETURN OF INCOME FOR IMPUGNED ASSESSMENT YEAR B Y OFFERING ADDITIONAL INCOME OF RS.106.18 CRORE. IT WAS SUBMITTED THAT THE CENT RAL GOVERNMENT HAS WITHDRAWN INTEREST ON CAPITAL IN VIEW OF WHICH INCOME OF RS.1 06.18 CRORE HAS BEEN OFFERED IN ITS REVISED RETURN OF INCOME. IT WAS SUBMITTED THA T THE ASSESSING OFFICER, VIDE ASSESSMENT ORDER DATED 22 ND MARCH, 2013, FOR ASSESSMENT YEAR 2010-11 HAS MADE AN ADDITION OF RS.167.61 CRORE WHICH COVERS THE ADD ITIONAL INCOME OFFERED IN THE REVISED RETURN FOR THE IMPUGNED ASSESSMENT YEAR. T HEREFORE, THE ASSESSED INCOME FOR THE ASSESSMENT YEAR 2010-11 BY AN AMOUNT OF RS. 106.18 CRORE OFFERED AS ADDITIONAL INCOME IN ITS REVISED RETURN OF SUBSEQUE NT YEAR SHOULD BE RECTIFIED. IT WAS FURTHER SUBMITTED THAT IN CASE THIS REQUEST IS NOT ACCEPTED, THEN, RELIEF OF ITA NO.5196/DEL/2015 3 RS.106.18 CRORE SHOULD BE GIVEN TO THE ASSESSEE IN ASSESSMENT YEAR 2011-12 AS RS.106.18 CRORE WAS ALREADY TAXED BY THE DEPARTMENT IN THE ASSESSMENT YEAR 2010- 11. 3. HOWEVER, THE ASSESSING OFFICER REJECTED SUCH CON TENTION OF THE ASSESSEE ON THE GROUND THAT IN THE PRECEDING ASSESSMENT YEAR AL SO SIMILAR ARGUMENT WAS REJECTED. FURTHER, IN VIEW OF THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF GOETZ INDIA LTD., THE CONTENTION OF THE ASSESSEE CANNOT BE ACCEPTED SINCE THE ASSESSEE DID NOT FILE A REVISED RETURN AND IS MAKIN G THE CLAIM THROUGH A LETTER DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 4. IN APPEAL, THE LD.CIT(A) DECIDED THE ISSUE IN FA VOUR OF THE ASSESSEE BY OBSERVING AS UNDER:- 8.1 I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE APPELLANT AND ALSO PERUSED THE ASSESSMENT ORDER PASSED BY THE AO. THE FACTS OF THE CASE ARE THAT ADDITIONS FOR THE IMPUGNED AMOUNT OF RS.106.18 CROR ES WAS ALSO MADE BY THE ASSESSING OFFICER IN THE ASSESSMENT YEAR 2010-11. T HE SAID ADDITION MADE BY THE ASSESSING OFFICER WAS CONFIRMED BY ME IN APPEAL ORDER DATED 02.06.2014 IN APPEAL NO. 67/13-14. THE RELEVANT FINDINGS GIVEN IN THE APPEAL ORDER OF ASSESSMENT YEAR 2010-11 ON THIS ISSUE ARE REPRODUCE D AS UNDER: 6.4.5 AS REGARDS TO BALANCE ADDITION OF RS. 106.1 8 CRORES, THE LEARNED AR SUBMITTED BEFORE ME THAT THE APPELLANT HAD SUO-MOTT O REVISED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2011-12 BY INCLUDING THE BALANCE AMOUNT OF RS. 106.18 CRORES IN ITS TAXABLE INCOME. THE APPELL ANT HAS POINTED OUT BEFORE ME THAT AS WAS THE NORMAL PRACTICE FOLLOWED BY THE AIRPORTS AUTHORITY, IT HAD INCLUDED THE AMOUNT OF 106.18 CRORES IN ITS REVISED RETURN OF INCOME FOR THE ASSESSMENT YEAR 2011-12 WHICH AMOUNT HAD ALSO NOT B EEN EXCLUDED BY THE ASSESSING OFFICER WHILE PASSING THE ASSESSMENT ORDE R FOR THE ASSESSMENT YEAR 2011-12. A COPY OF THE ASSESSMENT ORDER PASSED BY T HE ADDITIONAL CIT RANGE-1 BY NOT EXCLUDING THE ABOVE AMOUNT HAS ALSO BEEN FILED BEFORE ME DURING THE COURSE OF APPELLATE PROCEEDINGS. ITA NO.5196/DEL/2015 4 6.5. I DO NOT FIND ANY MERIT IN THE ABOVE CONTENTIO N OF THE APPELLANT. IT IS SETTLED PRINCIPAL OF THE TAXATION THAT THE INCOME I S REQUIRED TO BE TAXED IN THE YEAR IN WHICH IT BECOMES DUE. ADMITTEDLY, THE INCOM E OF RS.106.18 CRORES IS TAXABLE IN THE YEAR UNDER CONSIDERATION. THEREFORE, THE ADDITION OF RS. 106.18 CRORES MADE BY THE ASSESSING OFFICER ON THE ISSUE I S HEREBY CONFIRMED AS INCOME OF THE ASSESSMENT YEAR UNDER APPEAL. THIS GR OUND OF APPEAL IS PARTLY ALLOWED. SINCE, THE ADDITION FOR THE AMOUNT OF RS. 106.18 CR ORES HAS ALREADY BEEN CONFIRMED IN ASSESSMENT YEAR 2010-11, THERE IS MERI T IN THE SUBMISSIONS OF APPELLANT THAT THIS AMOUNT SHOULD NOT AGAIN BE INCL UDED IN ITS TAXABLE INCOME FOR THE ASSESSMENT YEAR 2011-12. HOWEVER, IT IS NOT ED THAT THE APPELLANT HAS NOT ACCEPTED THE AFORESAID ADDITION CONFIRMED IN AP PEAL ORDER OF ASSESSMENT YEAR 2010-11 AND THE SAME HAS BEEN CHALLENGED BY TH E APPELLANT IN THE APPEAL FILED BEFORE ITAT. UNDER THE CIRCUMSTANCES, THE ASS ESSING OFFICER IS DIRECTED TO ENSURE THAT THE IMPUGNED AMOUNT OF RS. 106.18 CR ORES IS INCLUDED IN THE TAXABLE INCOME OF THE APPELLANT ONLY ONCE. IN CASE THE ADDITION MADE IN ASSESSMENT YEAR 2010-11 IS UPHELD BY HONBLE ITAT, THE ASSESSING OFFICER WILL BE REQUIRED TO EXCLUDE THIS AMOUNT FROM THE TA XABLE INCOME OF ASSESSMENT YEAR 2011-12. ON THE OTHER HAND IF THE ADDITION MAD E IN ASSESSMENT YEAR 2010- 11 IS NOT SUSTAINED BY THE HONBLE ITAT, THE AMOUNT OF RS. 106.18 CRORES WILL REQUIRED TO BE INCLUDED IN THE TAXABLE INCOME OF AS SESSMENT YEAR 2011-12. THE AO IS DIRECTED ACCORDINGLY. IN THE RESULT, THE GROU ND OF APPEAL RAISED BY THE APPELLANT IS DISPOSED OFF IN THE MANNER INDICATED A BOVE. 5. AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE REV ENUE IS IN APPEAL BEFORE THE TRIBUNAL BY RAISING THE FOLLOWING GROUNDS:- 1. WHETHER THE LD CIT(A) HAS ERRED IN LAW AND ON F ACTS IN DIRECTING TO EXCLUDE THE AMOUNT OF RS. 106.18 CRORE FROM THE TAX ABLE INCOME OF A.Y 2011- 12 IN THE EVENT OF UPHOLDING OF THE ADDITION OF THI S AMOUNT IN A.Y. 2010-11 BY ITAT WHERE ISSUE OF YEAR OF ASSESSABILITY OF THE IN COME IS PENDING. 2. WHETHER THE LD CIT(A) HAS ERRED IN LAW AND ON FA CTS IN ALLOWING THE APPELLANT'S CLAIM TO THE ABOVE EXTENT DISREGARDING THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF GOETZE (INDIA) LTD. VS . CIT 284 ITR 323 (SC). 3. THE APPELLANT CRAVES LEAVE FOR RESERVING THE RIG HT TO AMEND, MODIFY, ALTER, ADD OR FOREGO ANY GROUND(S) OF APPEAL AT ANY TIME BEFORE OR DURING THE HEARING OF THIS APPEAL. ITA NO.5196/DEL/2015 5 6. NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE SERVICE OF NOTICE. THE LD. DR FILED THE FOLLOWING WRITTEN SYNOPSIS:- IN THE ABOVE CASE, FOR A.Y 2011-12 TOTAL INCOME OF THE ASSESSEE INCLUDED INCOME OF RS. 106.18 CRORES. IN THIS CONTEXT, IT IS TO BRING TO THE KIND NOTICE THAT THE AO ADDED THE SAID AMOUNT IN A.Y 2010-11 AN D THE LD. CIT(A) CONFIRMED THE SAID ADDITION. HOWEVER, IN THE APPELL ATE ORDER FOR A.Y 2011-12, THE LD. CIT(A) DIRECTED TO EXCLUDE THE SAID AMOUNT OF RS. 106.18 CRORE FROM TO TAXABLE INCOME OF THE RELEVANT A.Y 2011-12 ON TH E GROUND THAT THE ADDITION OF THAT AMOUNT WAS CONFIRMED BY HIM IN A.Y 2010-11. IN THIS CONNECTION, IT IS PERTINENT TO MENTIONED THAT THE ASSESSEE PREFERRED AND APPEAL AGAINST THE ORDER OF THE LD. CIT(A) FOR A.Y 2010-11 BEFORE THE HONBL E ITAT. THE HONBLE ITAT IN THE ORDER DATED 23.02.2018 FOR A.Y 2010-11 DIRECTED THAT THE SAID AMOUNT OF 106.18 CRORE SHOULD BE TAXED IN A.Y 2011- 12 AS OFFERED BY THE ASSESSEE IN ITS RETURN OF INCOME AND NOT IN A.Y 201 0-11. COPY OF THE ABOVE MENTIONED ORDER OF THE ITAT IS ENCLOSED HEREWITH FO R KIND REFERENCE. SINCE THE ADDITION OF RS. 106.18 CRORE MADE IN A.Y 2010-1 1 HAS ALREADY BEEN DELETED BY THE ITAT, THE INCOME OF RS. 106.18 CRORE SHOWN BY THE ASSESSEE IN ITS RETURN OF INCOME FOR A.Y 2011-12 SHOULD BE TAXE D AND THE DIRECTION OF THE LD. CIT(A) TO EXCLUDE THE SAID AMOUNT FROM TAXATION IN A.Y 2011-12 SHOULD BE REVERSED. 7. WE HAVE CONSIDERED THE ARGUMENTS ADVANCED BY TH E LD. DR AND PERUSED THE RECORD. FROM THE COPY OF THE ORDER OF THE TRIBUNAL , WE FIND THE TRIBUNAL HAS ALLOWED THE CLAIM OF THE ASSESSEE BY DIRECTING THE ASSESSING OFFICER TO DELETE THE ADDITION OF RS.106.18 CRORE, THEREFORE, ALLOWING TH E SAME IN THE IMPUGNED ASSESSMENT YEAR BY THE CIT(A) WILL AMOUNT TO DOUBLE DEDUCTION OF THE SAME AMOUNT. WE, THEREFORE, RESTORE THE ISSUE TO THE FI LE OF THE ASSESSING OFFICER WITH A DIRECTION TO FOLLOW THE ORDER OF THE TRIBUNAL IN AS SESSEES OWN CASE FOR ASSESSMENT YEAR 2010-11 AND DECIDE THE ISSUE AS PER FACT AND L AW, AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE REVENUE ARE ACCORDINGLY ALLOWED FOR S TATISTICAL PURPOSES. ITA NO.5196/DEL/2015 6 8. IN THE RESULT, THE APPEAL FILED BY THE REV ENUE IS ALLOWED FOR STATISTICAL PURPOSES. THE DECISION WAS PRONOUNCED IN THE OPEN COURT ON 0 9.08.2019. SD/- SD/- (BHAVNESH SAINI) (R.K. PANDA) JUDICIAL MEMBER ACCOUN TANT MEMFBER DATED:09 TH AUGUST, 2019 DK COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASSTT. REGISTRAR, ITAT, NEW DELHI