ACIT, Gurgaon V. M/s. Spectral Services Consultants Pvt. Ltd., Gurgaon

ITA 5843/DEL/2016

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7828 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2011-2012
• Appeal Filed On: 15-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Audit objection; Tax effect

Judgement Text

ITA 5843/DEL/2016 ASSESSMENT YEAR 2011-12 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G NEW DELHI BEFORE SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA NO.5843/DEL/2016 ASSESSMENT YEAR: 2011-12 ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1(1), GURGAON. VS M/S SPECTRAL SERVICES CONSULTANTS PRIVATE LIMITED (NOW M/S AECOM INDIA PVT. LTD.), 9 TH FLOOR, INFINITY TOWER-C, DLF CYBER CITY, DLF PHASE-2, GURGAON (PAN: AAHCA1976H) APPELLANT RESPONDENT DEPARTMENT BY: SHRI N.K. BANSAL, S R. DR ASSESSEE BY : NONE DATE OF HEARING : 22.7.2019 DATE OF PRONOUNCEMENT : 22.7.2019 O R D E R PER SUDHANSHU SRIVASTAVA, J.M. THIS APPEAL IS PREFERRED BY THE DEPARTMENT AGAINST THE ORDER DATED 9.8.2016 PASSED BY THE LD. COMMISSIONER OF IN COME TAX (APPEALS)-28, NEW DELHI FOR ASSESSMENT YEAR 2011-12 AND CHALLENGES THE ACTION OF THE LD. COMMISSIONER OF IN COME TAX(A) IN DELETING THE ADDITION MADE BY THE ASSESSING OFFICER OF RS. 51,31,257/- ON ACCOUNT OF DISALLOWANCE U/S 40(A)(I) IN RESPECT OF PAYMENT MADE TO NON-RESIDENTS. ADMITTEDLY, THE TAX EFFECT IN THE APPEAL IS BELOW THE MONETARY LIMIT OF RS. 20 LAKHS. ITA 5843/DEL/2016 ASSESSMENT YEAR 2011-12 2.1 IN TERMS OF CBDT CIRCULAR NO. 3/2018 DATED 11 TH JULY, 2018 READ WITH SECTION 268 A OF THE INCOME TAX ACT, 1961, THIS APPEAL BY THE REVENUE SHOULD HAVE BEEN WITHDRAWN OR SHOULD NOT HAVE BEEN PRESSED BY THE REVENUE. 2.2 WE ALSO NOTE THAT VIDE CBDTS INSTRUCTIONS DA TED 20.08.2018 BEARING F.NO. 279/MISC.142/2007-ITJ(PT), THERE HAS BEEN AN AMENDMENT TO PARA 10 OF THE CIRCULAR NO. 3 OF 2018 DATED 11.07.2018 WHEREIN THE SAID PARA 10 HAS BEEN AMENDED AS UNDER:- 10. ADVERSE JUDGMENTS RELATING TO THE FOLLOWING ISSUES SHOULD BE CONTESTED ON MERITS NOTWITHSTANDING THAT THE TAX EFFECT ENTAILED IS LESS THAN THE MONETARY LIMITS SP ECIFIED IN PARA 3 ABOVE OR THERE IS NO TAX EFFECT. (A) WHERE THE CONSTITUTIONAL VALIDITY OF THE PROVISION S OF AN ACT OR RULE IS UNDER CHALLENGE, OR (B) WHERE BOARDS ORDER, NOTIFICATION, INSTRUCTION OR CIRCULAR HAS BEEN HELD TO BE ILLEGAL OR ULTRA VIRES, OR (C) WHERE REVENUE AUDIT OBJECTION IN THE CASE HAS BEEN ACCEPTED BY THE DEPARTMENT, OR (D) WHERE ADDITION RELATES TO UNDISCLOSED FOREIGN INCOME/UNDISCLOSED FOREIGN ASSETS (INCLUDING FINANC IAL ASSETS)/UNDISCLOSED FOREIGN BANK ACCOUNT. (E) WHERE ADDITION IS BASED ON INFORMATION RECEIVED FR OM EXTERNAL SOURCES IN THE NATURE OF LAW ENFORCEMENT A GENCIES SUCH AS CBI/ ED/DRI/SFIO/DIRECTORATE GENERAL OF GST INTELLIGENCE (DGGI). ITA 5843/DEL/2016 ASSESSMENT YEAR 2011-12 (F) CASES WHERE PROSECUTION HAS BEEN FILED BY THE DEPARTMENT AND IS PENDING IN THE COURT. 2.3 HOWEVER, AFTER GOING THROUGH THE RECORDS BEFO RE US, WE ARE OF THE OPINION THAT APPARENTLY THE DEPARTMENTS APP EAL IS NOT COVERED BY ANY OF THE AFORESAID EXCEPTIONS AS ENUME RATED IN THE AFORESAID AMENDMENT TO THE INSTRUCTIONS AND, THEREF ORE, DELAYING THE DISPOSAL OF THE APPEAL BY WAITING FOR THE REPOR T FROM THE FIELD OFFICERS WILL NOT BE IN TRUE SPIRIT OF THE CIRCULAR . ACCORDINGLY, WE DEEM IT FIT TO TREAT THIS APPEAL AS DISMISSED WITH THE LIBERTY TO THE DEPARTMENT TO SEEK RECALL OF THIS ORDER BY FILING A MISC. APPLICATION BEFORE US IN CASE THE DEPARTMENTS APPE AL FALLS IN ANY OF THE ABOVE EXCEPTIONS. ACCORDINGLY, IN VIEW OF TH E CBDTS CIRCULAR NO. 3 OF 2018 DATED 11.7.2018, THE APPEAL BY THE REVENUE IS DISMISSED IN LIMINE. 3. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND JULY, 2019. SD/- SD/- (A.N. MISSHRA) (SUDHANSHU SRIVAS TAVA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 22 ND JULY, 2019 GS ITA 5843/DEL/2016 ASSESSMENT YEAR 2011-12 COPY FORWARDED TO: - 1) APPELLANT 2) RESPONDENT 3) CIT(A) 4) CIT 5) DR TRUE COPY BY ORDER ASSTT. REGISTRAR DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS /PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P S/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER