GE Money Financial Services Pvt. Ltd., New Delhi V. ACIT, New Delhi

ITA 5816/DEL/2011

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4100 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 9 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I1
• Next Hearing Date: 21-10-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 28-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H K CHAUDHARY
• Assessee Lawyers: RAHUL SATIJA
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH I - 2 , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SH. KULDIP SINGH , JM ITA NO. 5816/DEL/2011 : ASSTT. YEAR : 2007 - 08 ITA NO. 6282/DEL/2012 : ASSTT. YEAR : 2008 - 09 GE MONEY FINANCIAL SERVICES PVT. LTD., 401, 402, 4 TH FLOOR, AGGARWAL MILLENIUM TOWER, E - 1, 2, 3, NETAJI SUBHASH PLACE, PITAMPURA, NEW DELHI - 110034 VS ASSTT. COMMI SSIONER OF INCOME TAX, CIRCLE - 12(1 ), NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. A A ACC06 42F ASSESSEE BY : SH. RAHUL SATIJA , ADV. REVENUE BY : SH. H. K. CHAUDHARY , SR. DR DATE OF HEARING : 04 .10 .201 7 DATE OF PRONOUNCEMENT : 06 . 10 .201 7 ORDER PER N. K. SAINI, AM: THESE TWO APPEALS BY THE ASS ESSEE ARE DIRECTED AGAINST THE SEPARATE ORDER S DATED 28.10.2011 AND 31.10.2012 FOR THE ASSESSMENT YEARS 2007 - 08 AND 2008 - 09 RESPECTIVELY PASSED BY THE AO U/S 143(3) R.W.S. 144C OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 2. EARLIER THESE APPEALS WERE DECIDED VIDE ORDER DATED 02.05.2016 . AGAINST THE SAID ORDER , THE ASSESSEE FILED MISCELLANEOUS APPLICATIONS NO. 320 & 321/DEL/2016 FOR THE ASSESSMENT YEARS 2007 - 08 AND 2008 - 09 RESPECTIVELY STATING THEREIN THAT THE ADDITIONAL GROUNDS RAISE D BY THE ITA NO. 5816 /DEL /201 1 ITA NO. 6282/DEL/2012 GE MONEY FINANCIAL SERVICES PVT. LTD. 2 ASSESSEE WERE NOT DISPOSED OFF WHILE DECIDING THE APPEALS VIDE ORDER DATED 02.05.2016. THE SAID APPLICATIONS WERE DISPOSED OFF VIDE ORDER DATED 02.02.2017 OBSERVING THEREIN AS UNDER: 01. THESE TWO MISCELLANEOUS APPLICATIONS ARE FILED BY THE ASSES SEE FOR ASSESSMENT YEAR 2008 - 09 AND 2007 - 08 IN ITA NO. 5816/DEL/2011 FOR ASSESSMENT YEAR 2007 - 08 AND ITA NO. 6282/DEL/2012 FOR ASSESSMENT YEAR 2008 - 09 SUBMITTING THAT THE ADDITIONAL GROUND WAS RAISED DURING THE COURSE OF HEARING OF THESE APPEALS VIDE LETTE R DATED 22.05.2015 FOR BOTH THE YEARS REGARDING SHORT GRANTING CREDIT OF TAX DEDUCTION AT SOURCE OF RS.1,57,32,249/ - FOR ASSESSMENT YEAR 2007 - 08 AND RS.5,66,12,318/ - FOR ASSESSMENT YEAR 2008 - 09 REMAINS UNDER ADJUDICATED. THEREFORE, THERE IS AN APPARENT ERR OR ON THE FACE OF THE RECORD IN THE ORDER OF THE TRIBUNAL AS ADMISSION OF ADDITIONAL GROUND AND THEREAFTER THESE GROUNDS ARE NOT ADJUDICATED. 02. THE LD. AUTHORIZED REPRESENTATIVE REITERATED WHATEVER IS STATED IN HIS MISCELLANEOUS APPLICATION. LD. DEPARTM ENTAL REPRESENTATIVE. 03. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND NOTED THAT THE ASSESSEE HAS SUBMITTED AN APPLICATION FOR ADMISSION OF ADDITIONAL GROUND WITH RESPECT TO SHORT GRANT OF TAX CREDIT FOR BOTH THE YEARS. IN VIEW OF THIS, THERE I S AN ERROR IN THE ORDER OF THE COORDINATE BENCH, WHICH NEEDS TO BE RECTIFIED. IN VIEW OF THIS, WE RECALL THE ORDER DATED 02.05.2016 PASSED IN ABOVE APPEALS TO DECIDE ON THE ADMISSION OF THE ABOVE GROUNDS AND THEN DECISION ON THE MERIT. TO THAT EXTENT THE O RDER PASSED THE COORDINATE BENCH IN BOTH THESE APPEALS ARE RECALLED. ITA NO. 5816 /DEL /201 1 ITA NO. 6282/DEL/2012 GE MONEY FINANCIAL SERVICES PVT. LTD. 3 04. IN THE RESULT BOTH THE MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 2007 - 08 AND ITA NO. 5816/DEL/2011 AND ITA NO. 6282/DEL/2012 FOR ASSESSMENT YEAR 2008 - 09 AR E ALLOWED. 05. THE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 02.02.2017. 3. SINCE, THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE HAD NOT BEEN DISPOSED OFF, AS SUCH THERE WAS AN APPARENT ERROR ON THE FACE OF THE RECORD IN THE AFORESAID REFERRED TO ORDER DATED 02.05.2016. ACCORDINGLY, THESE APPEALS WERE FIXED FOR HEARING. 4 . DURING THE COURSE OF ASSESSMENT HEARING, THE LD. COUNSEL FOR THE ASSESSEE POINTED OUT THAT AN IDENTICAL ISSUE HAVING SIMILAR FACTS HAS BEEN DECIDED BY THE ITAT DELHI BENCH I - 2 , NEW DELHI IN CROSS APPEALS NO. 2897 & 2807/DEL/2007 FOR THE ASSESSMENT YEAR 2000 - 01 VIDE ORDER DATED 10.06.2015 WHEREIN THE SIMILAR ADDITIONAL GROUNDS WERE RAISED BY THE ASSESSEE AND THE ITAT AFTER ADMITTING THE ADDITIONAL GROUNDS, REMAND ED THE ISSUE BACK TO T HE FILE OF THE AO. 5 . IN HIS RIVAL SUBMISSIONS THE LD. DR COULD NOT CONTROVERT THE AFORESAID CONTENTION O F THE LD. COUNSEL FOR THE ASSESSEE. 6 . AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PARTIES AND THE MATERIAL AVAILABLE ON THE RECORD, IT IS NOTICE D THAT IN THE ASSESSMENT YEAR 2000 - 01 WHEREIN BOTH THE PARTIES WERE IN CROSS APPEAL S BEFORE THE ITAT ITA NO. 5816 /DEL /201 1 ITA NO. 6282/DEL/2012 GE MONEY FINANCIAL SERVICES PVT. LTD. 4 DELHI BENCH C , NEW DELHI, SIMILAR ADDITIONAL GROUNDS AS ARE INVOLVED IN THE APPEALS UNDER CONSIDERATION WERE RAISED WHICH WERE ADMITTED AND THE ISSUE WAS RESTORED BACK TO THE FILE OF THE AO FOR VERIFICATION OF THE CLAIM OF THE ASSESSEE IN RESPECT OF TAX CREDIT AND ALLOW THE SAME AS PER LAW. THE RELEVANT FINDINGS HAVE BEEN GIVEN IN PARAS 5 & 6 AT PAGE PAGES NO. 16 & 17 OF THE AFORESAID REFERRED TO ORDER DAT ED 10.06.2015 WHICH READ AS UNDER: 5. AT THE OUTSET, LD. A.R. INVITED OUR ATTENTION TO A COPY OF APPLICATION FILED FOR PERMISSION TO FILE ADDITIONAL GROUNDS OF APPEAL AND SUBMITTED THAT A.O. HAD NOT GIVEN FULL TAX CREDITS OUT OF TOTAL TAX CREDIT CLAIMED B Y APPELLANT IN ITS RETURN OF INCOME. HE REQUESTED THAT A.O. SHOULD BE DIRECTED TO REFER TO THE TAX CREDIT CLAIMED BY THE ASSESSEE AND SHOULD ACCORDINGLY ALLOW THE SAME. LD. A.R. SUBMITTED THAT VIDE ORDER DATED 06.05.2015 PASSED ON THE APPLICATION ITSELF, T HE HON'BLE IT AT HAD ADMITTED THE APPLICATION FOR ADDITIONAL GROUND RELYING ON THE CASE LAW OF NTPC, 229 ITR 383. HOWEVER, WE FIND THAT ONE OF THE MEMBERS HAD NOT SIGNED ON ORDER PASSED BY SENIOR MEMBER AND, THEREFORE, IT CANNOT BE SAID THAT THE ORDER WAS P ASSED ON 06.05.2015. HOWEVER, KEEPING IN VIEW THE ENTIRETY OF FACTS, WE ALLOW THE ADMISSION OF ADDITIONAL GROUND OF APPEAL AS THE NON ADMISSION OF ADDITIONAL GROUND WILL CAUSE IRREPARABLE HARM AND INJURY TO THE ASSESSEE WHEREAS, IT WILL NOT CREATE ANY INCO NVENIENCE TO THE DEPARTMENT, MOREOVER, WE FIND THAT THIS GROUND IS BASED ON RECORD AND THE CLAIM OF TAX CREDIT WAS MADE THROUGH INCOME TAX RETURN OF THE ASSESSEE. 6. LD. D.R. HAD NO OBJECTION TO THE ACCEPTANCE OF ADDITIONAL GROUND OF APPEAL, THEREFORE, WE ADMIT THE ADDITIONAL GROUND OF APPEAL AND DIRECT THE A.O. TO VERIFY THE CLAIM OF ASSESSEE ITA NO. 5816 /DEL /201 1 ITA NO. 6282/DEL/2012 GE MONEY FINANCIAL SERVICES PVT. LTD. 5 IN RESPECT OF TAX CREDIT AND ALLOW THE SAME AS PER LAW. IN VIEW OF ABOVE, ADDITIONAL GROUND OF APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 7 . SO, RESPECTFULLY FOLL OWING THE AFORESAID REFERRED TO ORDER, THE ISSUE RAISED BY THE ASSESSEE IN THE ADDITIONAL GROUNDS RELATING TO TAX CREDIT IS RESTORED TO THE AO AS HAS BEEN DONE FOR THE ASSESSMENT YEAR 2000 - 01 IN CROSS APPEALS NO. 2897 & 2807/DEL/2007 , VIDE ORDER DATED 10.0 6.2015. 8 . IN THE RESULT, THE APPEAL S OF THE ASSESSEE ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES . (O RD E R PRONOUNCED IN THE COURT ON 06 /10 /2017 ) SD/ - SD/ - ( KULDIP SINGH ) (N. K. SAINI) JUDICIA L MEMBER ACCOUNTANT MEMBER DAT ED: 06 /10 /2017 *SUBODH* COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR