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ITA 5866/DEL/2012

• Counselvise Citation: 586620114 RSA 2012
• Duration Of Justice: 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: I
• Assessment Year: 2008-2009
• Appeal Filed On: 22-11-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PEEYUSH JAIN TP
• Assessee Lawyers: PREETI BHARDWAJ S
• Keywords: Opportunity of being heard; Application of stay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH I II I : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND SHRI SHRI SHRI SHRI A.D.JAIN A.D.JAIN A.D.JAIN A.D.JAIN, JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER ITA NO. ITA NO. ITA NO. ITA NO.5866/DEL/2012 & STAY APPLICATION NO.282/DEL/ 2012 5866/DEL/2012 & STAY APPLICATION NO.282/DEL/2012 5866/DEL/2012 & STAY APPLICATION NO.282/DEL/2012 5866/DEL/2012 & STAY APPLICATION NO.282/DEL/2012 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2008 2008 2008 2008- -- -09 0909 09 M/S READERS DIGEST BOOK M/S READERS DIGEST BOOK M/S READERS DIGEST BOOK M/S READERS DIGEST BOOK AN ANAN AND HOME ENTERTAINMENT D HOME ENTERTAINMENT D HOME ENTERTAINMENT D HOME ENTERTAINMENT INDIA (PRIVATE) LIMITED, INDIA (PRIVATE) LIMITED, INDIA (PRIVATE) LIMITED, INDIA (PRIVATE) LIMITED, C CC C- -- -227, PARYAVARAN COMPLEX, 227, PARYAVARAN COMPLEX, 227, PARYAVARAN COMPLEX, 227, PARYAVARAN COMPLEX, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 030. 110 030. 110 030. 110 030. PAN : AADCR0848P. PAN : AADCR0848P. PAN : AADCR0848P. PAN : AADCR0848P. VS. VS. VS. VS. DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, RANGE RANGE RANGE RANGE- -- -15(1), 15(1), 15(1), 15(1), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SALIL KAPOOR AND MS.PREETI BHARDWAJ, ADVOCATES. RESPONDENT BY : SHRI PEEYUSH JAIN, CIT-DR(TP). ORDER ORDER ORDER ORDER PER G. PER G. PER G. PER G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VP VPVP VP : : : : ITA NO.5866/DEL/2012 ITA NO.5866/DEL/2012 ITA NO.5866/DEL/2012 ITA NO.5866/DEL/2012 THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ASSESSMENT ORDER OF LEARNED DEPUTY COMMISSIONER OF INCOME-TAX, NEW DELHI PASSED IN PURSUANCE OF THE DIRECTIONS ISSUED BY THE LEARNED DISPUTE RESOLUTION PANEL-II, NEW DELHI DATED 28 TH SEPTEMBER, 2012 FOR THE AY 2008-09. 2. AT THE TIME OF HEARING BEFORE US, IT WAS STATED BY THE LEARNED DR THAT THE ISSUE IS RELATING TO AMP EXPENSES WHICH IS ALREADY ARGUED BEFORE THE SPECIAL BENCH. THEREFORE, THE APPEAL SH OULD BE ADJOURNED TILL THE ORDER OF THE SPECIAL BENCH IS RECEIVED. H OWEVER, IT WAS STATED BY THE LEARNED COUNSEL FOR THE ASSESSEE THAT IN THI S CASE, THE DRP HAS NOT APPRECIATED THE FACTS OF THE CASE CORRECTLY INA SMUCH AS IT CONSIDERED THE ASSESSEE AS MANUFACTURER WHILE THE ASSESSEE IS NOT AT ALL A MANUFACTURER. SIMILARLY, THE DRP STATED THAT SIMILAR ISSUE HAS ITA NO.5866/D/2012 & S.A.NO.282/D/2012 2 BEEN ADJUDICATED BY THE DRP IN THE EARLIER YEAR WHE RE THE ASSESSEES OBJECTION HAS BEEN REJECTED AND THE MATTER IS PENDI NG BEFORE THE ITAT. IT IS STATED BY THE LEARNED COUNSEL THAT IT IS THE FIRST YEAR IN WHICH THE ADJUSTMENT HAS BEEN MADE BY THE TPO RELATING TO AMP EXPENSES. HE HAS SUBMITTED A CHART SHOWING AS MANY AS TEN FACTUA L MISTAKES COMMITTED BY THE DRP. HE STATED THAT HIS ONLY PRAY ER IS TO SET ASIDE THE ORDER OF THE DRP AND RESTORE THE MATTER TO ITS FILE TO BE READJUDICATED AFTER APPRECIATING THE FACTS CORRECTL Y. HE, THEREFORE, SUBMITTED THAT IN VIEW OF THE ABOVE, THERE IS NO NE CESSITY OF ADJOURNING THE APPEAL AWAITING FOR THE DECISION OF THE SPECIAL BENCH. THE LEARNED DR HAS NO OBJECTION TO THE ABOVE SUBMISSION OF THE LEARNED COUNSEL BUT HE STATED THAT THE DRP SHOULD BE DIRECTED TO AD JUDICATE THE MATTER IN THE LIGHT OF THE DECISION OF THE SPECIAL BENCH O F ITAT. IN REPLY, IT WAS SUBMITTED BY THE LEARNED COUNSEL THAT THERE IS NO R EQUIREMENT OF ANY SUCH DIRECTION BECAUSE THE DRP WILL ADJUDICATE THE ISSUE IN ACCORDANCE WITH LAW AS WELL AS ALL THE DECISIONS AVAILABLE AT THE RELEVANT TIME. HE STATED THAT PROBABLY BY THE TIME DRP ADJUDICATES TH E ISSUE, THERE MAY BE DECISIONS FROM SOME OF THE HIGH COURTS WHICH WIL L CERTAINLY HAVE MORE BINDING PRECEDENT THAN THE DECISION OF THE SPE CIAL BENCH. HE, THEREFORE, SUBMITTED THAT THE MATTER SHOULD BE SET ASIDE TO THE FILE OF THE DRP FOR READJUDICATION IN ACCORDANCE WITH LAW A FTER APPRECIATING THE FACTS CORRECTLY. 3. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. WE FIND THAT THE ASSESSEES COUNSEL HAS FURNISHED A CHART SUMMARIZIN G THE FACTUAL ERRORS CLAIMED TO HAVE BEEN COMMITTED BY THE DRP. THE COPY OF THE SAID CHART IS ENCLOSED HEREWITH FOR READY REFERENCE AS ANNEXURE ANNEXURE ANNEXURE ANNEXURE- -- -1 11 1 TO THIS ORDER. ADMITTEDLY, ANY ISSUE IS TO BE DECIDED AFTER CORRECT APPRECIATION OF FACTS AND IF SOME FACTUAL ERROR HAS BEEN COMMITTED, IT MAY VITIATE THE ULTIMATE FINDING. IN VIEW OF THE A BOVE, WE SET ASIDE THE ORDER OF THE LEARNED DRP AND RESTORE THE MATTER TO THEIR FILE WITH THE ITA NO.5866/D/2012 & S.A.NO.282/D/2012 3 DIRECTION THAT THEY SHOULD READJUDICATE THE ISSUE I N ACCORDANCE WITH LAW AFTER APPRECIATION OF CORRECT FACTS. NEEDLESS TO MENTION THAT WHILE READJUDICATING THE ISSUE, THEY WILL ALLOW ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. IN THE RESULT, THE ASSESSEES APPEAL IS DEEMED T O BE ALLOWED FOR STATISTICAL PURPOSES. STAY APPLICATION NO.282 STAY APPLICATION NO.282 STAY APPLICATION NO.282 STAY APPLICATION NO.282 5. SINCE WE HAVE ALREADY DISPOSED OF THE APPEAL SET TING ASIDE THE ORDER OF LEARNED DRP, THE STAY PETITION SUBMITTED B Y THE ASSESSEE HAS BECOME INFRUCTUOUS. ACCORDINGLY, THE SAME IS DISMI SSED BEING INFRUCTUOUS. 6. IN THE RESULT, THE STAY PETITION OF THE ASSESSEE IS DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 21 ST DECEMBER, 2012. SD/- SD/- ( (( (A.D.JAIN A.D.JAIN A.D.JAIN A.D.JAIN) )) ) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT DATED : 21.12.2012 VK. COPY FORWARDED TO: - 1. APPELLANT : M/S READERS DIGEST BOOK AND HOME M/S READERS DIGEST BOOK AND HOME M/S READERS DIGEST BOOK AND HOME M/S READERS DIGEST BOOK AND HOME ENTERTAINMENT INDIA (PRIVATE) LIMITED, ENTERTAINMENT INDIA (PRIVATE) LIMITED, ENTERTAINMENT INDIA (PRIVATE) LIMITED, ENTERTAINMENT INDIA (PRIVATE) LIMITED, C CC C- -- -227, PARYAVARAN COMPLEX, 227, PARYAVARAN COMPLEX, 227, PARYAVARAN COMPLEX, 227, PARYAVARAN COMPLEX, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 030. 110 030. 110 030. 110 030. 2. RESPONDENT : DEPUTY COMMISSIONER OF INCOME TAX, DEPUTY COMMISSIONER OF INCOME TAX, DEPUTY COMMISSIONER OF INCOME TAX, DEPUTY COMMISSIONER OF INCOME TAX, RANGE RANGE RANGE RANGE- -- -15(1), NEW DELHI. 15(1), NEW DELHI. 15(1), NEW DELHI. 15(1), NEW DELHI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR ITA NO.5866/D/2012 & S.A.NO.282/D/2012 4 ITA NO.5866/D/2012 & S.A.NO.282/D/2012 5 ITA NO.5866/D/2012 & S.A.NO.282/D/2012 6