Greater Noida Industrial Development Authority, Uttar Pradesh V. Addl.CIT (Exemption), Ghaziabad

ITA 6645/DEL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2426 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2015-2016
• Appeal Filed On: 17-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: JASMEET SINGH
• Keywords: Depreciation; Opportunity of being heard; Set aside
• Section: 147; 12; 12A; 12AA; 201; 13; 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C, NEW DELHI. BEFORE SHRI L.P. SAHU, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER STAY NO.181/DEL/2019 (IN ITA NO.6643/DEL./2018) (ASSESSMENT YEAR : 2013-14) AND ITA NO.6643/DEL./2018 (ASSESSMENT YEAR : 2013-14) STAY NO.182/DEL/2019 (IN ITA NO.6644/DEL./2018) (ASSESSMENT YEAR : 2014-15) AND ITA NO.6644/DEL./2018 (ASSESSMENT YEAR : 2014-15) STAY NO.183/DEL/2019 (IN ITA NO.6645/DEL./2018) (ASSESSMENT YEAR : 2015-16) AND ITA NO.6645/DEL./2018 (ASSESSMENT YEAR : 2015-16) M/S. GREATER NOIDA INDUSTRIAL DEVELOPMENT AUTHORITY , VS. ADDL.CIT, PLOT NO.1, SECTOR KNOWLEDGE PARK 04, EXEMPTI ON RANGE, GREATER NOIDA, GHAZIABAD. GAUTAM BUDH NAGAR 201 308 (GHAZIABAD). (PAN : AAALG0129L) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI JASMEET SINGH, ADVOCATE SHRI SUNIL GUPTA, CA MS. RAJ RANI LAKRA, CA REVENUE BY : SHRI AMIT KATOCH, SENIOR DR DATE OF HEARING : 01.03.2019 DATE OF ORDER : 13.03.2019 ITA NO.6643, 6644 & 6645/DEL./2018 2 O R D E R PER BENCH : SINCE COMMON QUESTIONS OF FACTS AND LAW HAVE BEEN R AISED IN THE AFORESAID APPEALS, THE SAME ARE BEING DISPOS ED OF BY WAY OF COMPOSITE ORDER TO AVOID REPETITION OF DISCUSSION. 2. THE APPELLANT, M/S. GREATER NOIDA INDUSTRIAL DEV ELOPMENT AUTHORITY (HEREINAFTER REFERRED TO AS THE ASSESSEE ), A BODY CORPORATE ESTABLISHED IN TERMS OF SECTION 3 OF U.P. INDUSTRIAL DEVELOPMENT ACT, 1976 AND ALSO REGISTERED U/S 12 A OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE ACT) BY FILIN G THE AFORESAID APPEALS, SOUGHT TO SET ASIDE THE COMPOSITE ORDER DA TED 30.07.2018 PASSED BY LD. CIT (APPEALS)-I, NOIDA QUA THE ASSES SMENT YEARS 2013-14, 2014-15 & 2015-16 ON THE IDENTICAL GROUNDS EXCEPT FOR AMOUNT OF ADDITIONS. FOR THE SAKE OF BREVITY, GROU NDS OF APPEAL RAISED IN AY 2013-14 ARE INTER ALIA THAT :- 1. BECAUSE THE ORDER PASSED BY LD. COMMISSIONER O F INCOME TAX (APPEALS) (HEREINAFTER REFERRED 'LD. CIT(AY') I S BAD IN LAW. 2. BECAUSE THE LD. CIT(A) , WHILE PASSING THE IMPU GNED ORDER, FAILED IN PROVIDING AN ADEQUATE OPPORTUNITY OF BEING HEARD TO GREATER NOIDA INDUSTRIAL DEVELOPMENT AUTHO RITY (HEREINAFTER REFERRED AS' APPELLANT') 3. BECAUSE THE LD. CIT(A), WHILE PASSING THE IMPUG NED ORDER, FAILED TO APPRECIATE THE GROUNDS OF APPEALS RAISED IN THE APPEAL AND PASSED THE IMPUGNED ORDER ON THE ERRONEO US PREMISE THAT THE APPEAL IS NOT MAINTAINABLE FOR THE REASON THAT THE PROOF OF PAYMENT OF FEE HAS NOT BEEN ENCLOSED IN TERMS OF S. 249(1)(III) OF THE INCOME TAX ACT, 1961. ITA NO.6643, 6644 & 6645/DEL./2018 3 4. BECAUSE THE LD. CIT(A), WHILE PASSING THE IMPUG NED ORDER, AND WITHOUT GOING INTO THE PARTICULARS INVOL VED IN THE APPEAL, ERRED IN MAKING THE OBSERVATION THAT THE IS SUES INVOLVED IN THE APPEAL HAS BEEN SETTLED BY THE HON'BLE SUPRE ME COURT OF INDIA IN NEW OKHLA INDUSTRIAL DEVELOPMENT AUTHORITY V CHIEF COMMISSIONER OF INCOME TAX; C.A. 792-793/2014 WITHOUT PREJUDICE TO THE GROUNDS RAISED HEREIN ABOV E THE FOLLOWING ARE THE GROUNDS ON THE MERITS: 5. BECAUSE THE LD. CIT(A), WHILE PASSING THE IMPUG NED ORDER, FAILED TO APPRECIATE THE FACT THAT THE LD. A SSESSING OFFICER (HEREINAFTER REFERRED TO AS 'LD. AO') ERRED IN TAKI NG THE STATUS OF THE APPELLANT AS BODY CORPORATE. 6. BECAUSE THE LD. CIT(A), WHILE PASSING THE IMPUG NED ORDER, FAILED TO APPRECIATE THE FACT THAT THE LD. A O ERRED IN HOLDING THAT REGISTRATION U/ S 12AA IS NOT APPLICAB LE FOR THE A.Y. 2013-14 AND DISALLOWING THE EXEMPTION U/ S 11 AND 1 2 TO THE APPELLANT. 7. BECAUSE THE LD. CIT(A), WHILE PASSING THE IMPUG NED ORDER, FAILED TO APPRECIATE THE FACT THAT THE LD. A O ERRED IN INVOKING S. 13(8) R/W S. 2(15) OF THE INCOME TAX AC T, 1961 BY TREATING THE ACTIVITIES OF APPELLANT AS COMMERCIAL ACTIVITIES WITHOUT CONSIDERING THE CONSTITUTION OF THE APPELLA NT. 8. BECAUSE THE LD. CIT(A), WHILE PASSING THE IMPUG NED ORDER, FAILED TO APPRECIATE THE FACT THAT THE LD. A O ERRED IN INVOKING THE PROVISIONS OF PROVISO TO S. 2(15) OF T HE INCOME TAX ACT, 1961 IN CONTRAVENTION OF JUDGEMENT BY HON'BLE ALLAHABAD HIGH COURT IN APPELLANT'S CASE. 9. BECAUSE THE LD. CIT(A), WHILE PASSING THE IMPUG NED ORDER, FAILED TO APPRECIATE THE FACT THAT THE LD. A O ERRED IN INVOKING THE PROVISIONS OF S. 11(4A) OF THE INCOME TAX ACT, 1961 BY TREATING THE ACTIVITIES OF APPELLANT AS COMMERCI AL ACTIVITIES WITHOUT CONSIDERING THE CONSTITUTION OF THE APPELLA NT. 10. BECAUSE THE LD. CIT(A), WHILE PASSING THE IMPU GNED ORDER, FAILED TO APPRECIATE THE FACT THAT THE LD. A O ERRED IN MAKING ADDITION OF RS.83,39,875/ - ON ACCOUNT OF DI SALLOWANCE MADE U/S 11 AND 12 OF THE INCOME TAX ACT, 1961. 11. BECAUSE THE LD. CIT(A), WHILE PASSING THE IMPU GNED ORDER, FAILED TO APPRECIATE THE FACT THAT THE LD. A O ERRED IN MAKING THE ADDITION OF 411,05,84,344/ - IN RESPECT OF RESERVES/ FUND MADE BY THE APPELLANT. ITA NO.6643, 6644 & 6645/DEL./2018 4 12. BECAUSE THE LD. CIT(A), WHILE PASSING THE IMPU GNED ORDER, FAILED TO APPRECIATE THE FACT THAT THE LD. A O ERRED IN MAKING THE ADDITION OF 35,06,05,545/ - IN RESPECT O F AMOUNT TRANSFERRED TO MAINTENANCE FUND AND FUND FOR URBAN SERVICES. 13. BECAUSE THE LD. CIT(A), WHILE PASSING THE IMPU GNED ORDER, FAILED TO APPRECIATE THE FACT THAT THE LD. A O ERRED IN MAKING ADHOC DISALLOWANCE OF THE EXPENSES OF RS.4,4 4,60,803/- IN RESPECT OF LEGAL EXPENSES, CONSULTANCY, PROFESSI ONAL FEES AND AUDIT FEES PAID BY THE APPELLANT. 14. BECAUSE THE LD. CIT(A), WHILE PASSING THE IMPU GNED ORDER, FAILED TO APPRECIATE THE FACT THAT THE LD. A O ERRED IN DISALLOWING RS.82,00,000/- IN RESPECT OF AMOUNT PAI D TO UDYOG BANDHU BY THE APPELLANT. 15. BECAUSE THE LD. CIT(A), WHILE PASSING THE IMPUG NED ORDER, FAILED TO APPRECIATE THE FACT THAT THE LD. A O ERRED IN MAKING DISALLOWANCE OF INTEREST PAID BY APPELLANT A MOUNTING TO RS.3,75,49,720/- 16. BECAUSE THE LD. CIT(A), WHILE PASSING THE IMPU GNED ORDER, FAILED TO APPRECIATE THE FACT THAT THE LD. A O ERRED IN DISALLOWING DEPRECIATION CLAIMED BY APPELLANT AMOUN TING TO RS.2,02,511/ - IN RESPECT OF ELECTRICAL FITTINGS. 3. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : THE ASSESSEE, A BODY CORP ORATE, ESTABLISHED IN TERMS OF SECTION 3 OF U.P. INDUSTRIA L DEVELOPMENT ACT, 1976 AND ALSO REGISTERED UNDER SECTION 12A OF THE ACT. INITIALLY, THE AO REOPENED THE ASSESSMENT AFTER REC ORDING REASONS AND COMPLETED THE ASSESSMENT UNDER SECTION 143 (3) READ WITH SECTION 147 OF THE ACT ON 27.12.2017, 05.01.2018 & 27.12.2017 FOR AYS 2013-14, 2014-15 & 2015-16 RESPECTIVELY. 4. AO AFTER TREATING THE ASSESSEE AS A COMPANY WITH OUT CONSIDERING THE FACT THAT THE ASSESSEE IS REGISTERE D UNDER SECTION ITA NO.6643, 6644 & 6645/DEL./2018 5 12A OF THE ACT AND HAS DECLINED THE EXEMPTION UNDER SECTION 11 AND 12 OF THE ACT BY INVOKING THE PROVISIONS CONTAI NED UNDER SECTION 13(8) READ WITH SECTION 2(15) OF THE ACT BY TREATING THE ACTIVITIES OF THE ASSESSEE AS COMMERCIAL ACTIVITIES . CONSEQUENTLY, AO DISALLOWED AMOUNT OF RS.4,11,05,84,344/-, RS.4,7 0,09,12,532/- & RS.1,41,34,83,732/- FOR AYS 2013-14, 2014-15 & 20 15-16 RESPECTIVELY TRANSFERRED TO VARIOUS RESERVES/ PROVI SIONS AFTER ALLOWING THEIR UTILIZATION. AO ALSO DISALLOWED AMO UNT OF RS.35,06,05,545/-, RS.15,24,60,860/- & RS.51,83,83, 332/- FOR AYS 2013-14, 2014-15 & 2015-16 RESPECTIVELY TRANSFERRE D TO MAINTENANCE FUND AND FUND FOR URBAN SERVICES. AO A LSO MADE ADHOC DISALLOWANCE AMOUNTING TO RS.4,44,60,803/-, RS.9,33,33,493/- & RS.5,20,93,863/- FOR AYS 2013-14 , 2014-15 & 2015-16 RESPECTIVELY IN RESPECT OF CONSULTANCY FEE , PROFESSIONAL FEE AND AUDIT FREE. AO HAS DISALLOWED AN AMOUNT OF RS.82,00,000/- , RS.2,50,00,000/- & RS.2,50,00,000/- FOR AYS 2013- 14, 2014-15 & 2015-16 RESPECTIVELY GIVEN AS GRANT TO UDYOG BANDH U ON THE DIRECTIVES RECEIVED FROM STATE GOVERNMENT. AO ALS O DISALLOWED AN AMOUNT OF RS.3,75,49,720/-, RS.3,75,49,720/- & RS.3,75,49,720/- FOR AYS 2013-14, 2014-15 & 2015-16 RESPECTIVELY ON ACCOUNT OF PROPORTIONATE DISALLOWAN CE OF INTEREST PAID TO LOANS AND ADVANCES AND AO ALSO DISALLOWED A N AMOUNT OF ITA NO.6643, 6644 & 6645/DEL./2018 6 RS.2,02,511/- & RS.2,26,986/- FOR AYS 2013-14 & 201 4-15 RESPECTIVELY CLAIMED AS DEPRECIATION OF ELECTRICAL FITTINGS AND THEREBY ASSESSED THE TOTAL INCOME OF THE ASSESSEE A T RS.455,99,42,800/-, RS.506,00,08,550/- & RS.210,00 ,96,720/- FOR AYS 2013-14, 2014-15 & 2015-16 RESPECTIVELY. 5. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT ( A) BY WAY OF APPEALS WHO HAS DISMISSED ALL THE APPEALS BEING NOT MAINTAINABLE FOR WANT OF PAYMENT OF NECESSARY COURT FEES IN THE ABSENCE OF THE ASSESSEE. FEELING AGGRIEVED, THE ASSESSEE HAS COME UP BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT APPEALS. 6. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 7. BARE PERUSAL OF THE IMPUGNED ORDER PASSED BY THE LD. CIT (APPEALS) GOES TO PROVE THAT LD. CIT (A) HAS FIRST TIME LISTED THE APPEALS PENDING BEFORE HIM FOR HEARING FOR 20.07.20 18 ON WHICH DATE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE SOUG HT ADJOURNMENT WHICH WAS REJECTED BY LD. CIT (A) BEING WITHOUT ANY GROUND AND DISMISSED THE APPEALS EX PARTE ON GROUND OF MAINTAI NABILITY ON THE SOLE REASON THAT THE ASSESSEE HAS NOT ANNEXED THE P ROOF OF PAYMENT ITA NO.6643, 6644 & 6645/DEL./2018 7 OF FEE IN TERMS OF PROVISIONS CONTAINED UNDER SECTI ON 249(1)(III) OF THE ACT BUT HAS NOT PREFERRED TO DECIDE THE APPEALS ON MERIT. 8. HOWEVER, WHEN WE EXAMINE THE AFORESAID FACTS REC ORDED BY THE LD. CIT (A) IN THE IMPUGNED ORDER THAT ASSESSEE HAS FAILED TO ANNEXE THE RECEIPT OF APPEAL FEES PAID IN TERMS OF PROVISIONS OF SECTION 249(1)(III) OF THE ACT, FROM FORM NO.35 IT IS CATEGORICALLY MENTIONED IN COL.NO.16 THAT THE ASSESSEE HAS DULY DEPOSITED THE APPEAL FEE OF RS.1,000/- EACH VIDE BSR CODE NO.0202 976, SL.NO.40444, 40737 & 40430 ON 31.01.2018, 07.02.20 18 & 30.01.2018 FOR AYS 2013-14, 2014-15 & 2015-16 RESPE CTIVELY, WHICH SHOWS THAT IN AY 2014-15, THE APPEAL FEE IS S TATED TO HAVE BEEN DEPOSITED ON 07.02.2018 BUT THE SAME IS ALSO P RIOR TO THE DATE OF PASSING THE IMPUGNED ORDER I.E. 30.07.2018. 9. WHEN ASSESSEE HAS GIVEN COMPLETE PARTICULARS OF PAYMENT OF APPEAL FEE BUT, IF SOMEHOW, COPY OF RECEIPT HAS NOT BEEN ANNEXED WITH THE APPEAL, IT WAS FOR THE LD. CIT (A) TO GIVE THE ASSESSEE AN ADEQUATE OPPORTUNITY TO BRING ON RECORD RECEIPTS FO R MAKING THE PAYMENT OF APPEAL FEE. LD. CIT (A) HAS RATHER SHOR T-CIRCUITED THE ENTIRE PROCESS OF HEARING BY SUMMARILY DISMISSING T HE APPEALS FOR NON-ENCLOSURE OF THE PROOF OF PAYMENT OF RECEIPTS. SO, WE ARE OF THE CONSIDERED VIEW THAT THIS IS A CASE WHERE THAT THE LD. CIT (A) HAS NOT GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD T O THE ASSESSEE ITA NO.6643, 6644 & 6645/DEL./2018 8 AND THEREBY VIOLATED THE PRINCIPLES OF NATURAL JUST ICE. CONSEQUENTLY, WE SET ASIDE THE IMPUGNED ORDERS PASS ED BY THE LD. CIT (A) FOR AYS 2013-14, 2014-15 & 2015-16 AND REMA NDED THE CASES BACK TO THE LD. CIT (A) TO DECIDE AFRESH AFTE R PROVIDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. CONSEQ UENTLY, APPEALS BEARING ITA NOS.6643/DEL/2018, 6644/DEL/2018 & 6645 /DEL/2018 FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL P URPOSES. 9. KEEPING IN VIEW THE FACT THAT SINCE APPEALS BEAR ING ITA NOS.6643/DEL/2018, 6644/DEL/2018 & 6645/DEL/2018 HA VE BEEN DECIDED, AFORESAID STAY PETITIONS FILED THEREIN STA ND DISMISSED HAVING BEEN BECOME INFRUCTUOUS. ORDER PRONOUNCED IN OPEN COURT ON THIS 13 TH DAY OF MARCH, 2019. SD/- SD/- (L.P. SAHU) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 13 TH DAY OF MARCH, 2019 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-I, NOIDA. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.