Doosan Power Systems India Pvt. Ltd., Gurgaon V. DCIT, New Delhi

ITA 5814/DEL/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5142 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 6 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 11-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIMA NEB
• Section: 10; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: B NEW DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER & SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ITA NO. 5814/DEL/2016 ASSESSMENT YEAR: 2008-09 DOOSAN POWER SYSTEMS INDIA P. LTD. 16 TH FLOOR, DLF SQUARE BUILDING, JAKRANDA MARG, DLF PHASE-III, GURGAON. PAN NO. AACCD2754M VS DCIT CIRCLE 7(1) NEW DELHI. APPELLANT RESPONDENT ASSESSEE BY SHRI K.M. GUPTA, ADV. REVENUE BY MS. ASHIMA NEB, SR. DR ORDER PER SHRI N.K. BILLAIYA, A.M. THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF THE CIT(A)-37, NEW DELHI DATED 08.09.2016 PERTAININ G TO AY 2008- 09. THE GRIEVANCE OF THE ASSESSEE READS AS UNDER: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ORDERS PASSED BY LD. DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE 7(1), NEW DELHI UNDER SECTION 154/143(3) OF THE INCOME-TAX ACT, 1961 AND THE ORDER PASSED BY THE LD. CIT(APPEALS)-37, NEW DELHI WERE BAD IN LAW AND ARE LIABLE TO BE QUASHED. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) HAS ERRED BY FAILING TO APPR ECIATE DATE OF HEARING 23.05.2019 DATE OF PRONOUNCEMENT 23.05.2019 2 ITA NO . 5814/DEL/2016 THAT CLAIMING DEDUCTION U/S 10A OF THE ACT BEFORE S ETTING OFF THE BROUGHT FORWARD LOSS IS A DEBATABLE ISSUE A ND, THEREFORE, CANNOT BE CONSTRUED AS A MISTAKE APPAREN T FROM RECORD. 3. THAT THE ORDER PASSED BY THE LD. CIT(A) IS WITHOUT JUSTIFICATION AND INVALID AS THE LD. CIT(A) HAS ERR ED IN UPHOLDING THE ORDER OF THE LD. AO, PASSED U/S 154 O F THE ACT, ON DIFFERENT GROUND WHICH IS NOT THE SUBJECT M ATTER OF APPEAL BEFORE HIM AND PASSED THE IMPUGNED ORDER IN COMPLETE VIOLATION OF THE PRINCIPLES OF NATURAL JUS TICE. 4. ON MERIT, THE LD. AO/CIT(A) HAS ERRED IN SETTING OF F OF BROUGHT FORWARD LOSSES OF EARLIER YEARS WITH THE PR OFIT OF THE UNDERTAKING FOR THE YEAR UNDER CONSIDERATION WI THOUT APPRECIATING THE CHANGE IN PROVISIONS OF SECTION 10 A(6) OF THE ACT BROUGHT ABOUT BY FINANCE ACT, 2003 W.E.F. A PRIL 1, 2001. THAT THE ABOVE-MENTIONED GROUNDS ARE INDEPENDENT AN D WITHOUT PREJUDICE TO EACH OTHER. THAT THE APPELLANT PRAYS THAT IT MAY BE ALLOWED TO ADD, AMEND, ALTER OR DELETE THE ABOVE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF HEARING. 2. THE ROOTS OF THE GRIEVANCE LIE IN THE ASSESSMENT ORDER FRAMED U/S 154 OF THE ACT. IN THIS CASE, THE ASSESSEE HAD CLAIMED DEDUCTION U/S 10A OF THE ACT AND THE DEDUCTION WAS SET OFF AGAINST THE BROUGHT FORWARD LOSSES. THE ASSESSING OFFICER WAS OF THE OPINION THAT THE BROUGHT FORWARD LOSSES SHOULD BE SET OFF BEFORE CLAIMING DEDUCTION U/S 10A WHILE COMPUTING I NCOME OF THE ASSESSEE. ACCORDINGLY, THE ASSESSMENT ORDER DATED 15.10.2012 WAS RECTIFIED. 3. THE ASSESSEE AGITATED THE MATTER BEFORE CIT(A) B UT WITHOUT ANY SUCCESS. A PERUSAL OF THE ORDER OF THE CIT(A) SHOWS THAT HE HAS SIMPLY EXTRACTED THE ORDER OF THE TRIBUNAL IN I TA NOS. 104 & 3 ITA NO . 5814/DEL/2016 105/DEL/2011 DATED 27.02.2015 AND DISMISSED THE APP EAL OF THE ASSESSEE. 4. BEFORE US, THE COUNSEL FOR THE ASSESSEE SUBMITTE D THAT THE DECISION OF THE TRIBUNAL IN THE CASE OF TECNOVATE E -SOLUTIONS PVT. LTD., WHICH WAS RELIED UPON BY THE CIT(A) HAS BEEN REVERSED BY THE HONBLE HIGH COURT OF DELHI. 5. SINCE THE DECISION, WHICH WAS THE BASIS FOR THE DISMISSAL OF THE APPEAL BY THE CIT(A) HAS BEEN REVERSED BY THE H ONBLE HIGH COURT OF DELHI. WE ARE OF THE CONSIDERED VIEW THAT IN THE INTEREST OF JUSTICE, THE CIT(A) SHOULD NOW DECIDE THE APPEAL OF THE ASSESSEE AFRESH AFTER GIVING A REASONABLE OPPORTUNITY OF BEI NG HEARD TO THE ASSESSEE. THE APPEAL IS RESTORED TO THE FILE OF TH E CIT(A) ACCORDINGLY. 6. IN THE RESULT, THE APPEAL IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (BHAVNESH SAINI) (N. K. BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 23/05/2019 *KAVITA ARORA 4 ITA NO . 5814/DEL/2016 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 23.05.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 23.05.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P S/PS 23.05.2019 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 23.05.2019 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 23.05.2019 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT 23.05.2019 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 23.0 5.2019 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER