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ITA 7831/DEL/2017

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0661 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 28-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GAURAV PUNDIR
• Assessee Lawyers: S KRISHNAN
• Keywords: Set aside
• Section: 13

Judgement Text

I.T.A.NO.7831/DEL/2017 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F NEW DELHI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER . . /. I.T.A NO.7831/DEL/2017 / ASSESSMENT YEAR: 2009-10 ROHDE & SCHWARZ INDIA P. LTD. A-27, 1 ST FLOOR, MOHAN COOPERATIVE INDUSTRIAL ESTATE, MATHURA ROAD, NEW DELHI. VS. DCIT CIRCLE 21(2) NEW DELHI. PAN NO. AAACR3267P APPELLANT / RESPONDENT /ASSESSEE BY SH. S. KRISHNAN, ADV. /REVENUE BY SH. GAURAV PUNDIR, SR. DR / DATE OF HEARING: 1 2 .0 7 .2021 /PRONOUNCEMENT ON 13 .0 7 .2021 /O R D E R PER MAHAVIR PRASAD, J.M. THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGA INST THE ORDER OF LD. CIT(APPEALS)-25, APPEAL NUMBER 335/17-18 ORDER DATED 11.09.2017 ARISING OUT OF PENALTY ORDER DATED 14.03.2016. THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPEAL: - BASED ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE APPELLANT RESPECTFULLY SUBMITS THAT : 1. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ER RED IN CONFIRMING THE PENALTY LEVIED ON VARIOUS ADDITIONS: I) DISALLOWANCE OF RS. 27,04,807/ - BEING THE AMOUNT SET APART AS PROVISION FOR WARRANTY, AS NO SERVICE WAS RENDERED IN THE ASSESSMENT UNDER CONSIDERATION AND THE SAME HAS BEE N OFFERED TO TAX IN THE NEXT YEARS IN WHICH THE WARRANTY SERVICE S HAVE BEEN RENDERED. ESPECIALLY WHEN THE COPY OF THE ITATS O RDER THE APPELLANTS OWN CASE FOR AY 2007-08 AND 2008-09 IN APPEAL NO. ITA NO. 894/DEL/2012 & ITA NO. 520/DEL/2013 RESPECT IVELY WAS I.T.A.NO.7831/DEL/2017 2 PRODUCED, WHERE THE HONBLE ITAT RELYING ON ROTORK CONTROLS INDIA P. LTD. 314 ITR 62 HAS HELD IN FAVOUR OF THE APPELLANT. 2. DISALLOWANCE OF RS. 72,93,983/ - ON ACCOUNT OF NON - DEDUCTION OF TAX U/S 40(A)(I) A) ESPECIALLY WHEN ALL THE DETAILS WERE SUBMITTED BEFO RE THE LD. DEPUTY COMMISSIONER OF INCOME TAX AT THE TIME OF AS SESSMENT AND NO INACCURATE PARTICULARS WERE FURNISHED AND ALL TH E ADDITIONS ARE DELETEABLE. B) THE ORDER OF THE HONBLE ITAT FOR THE AY 2007 - 08 & 2008 - 09 VIDE APPEAL NO. ITA NO. 894/DEL/2012 & ITA NO. 520/DEL/2 013 RESPECTIVELY WAS PRODUCED BEFORE THE LD. CIT(APPEAL S) WHERE SUCH ADDITIONS HAVE BEEN DELETED. THE LD. CIT(APPEALS) HAS FURTHER ERRED IN RELYING O N JUDGMENT OF HONBLE DELHI HIGH COURT IN THE CASE OF ZOOM COMMUN ICATION PVT. LTD., ESPECIALLY WHEN THE APPELLANT HAS NOT CONCEAL ED ANY MATERIAL FACT OR FACTUAL INFORMATION GIVEN BY IT FO UND TO BE INCORRECT. 3. THE LD. CIT(APPEALS) HAS FURTHER ERRED IN IMPOSING PENALTY ON THE AMOUNT OF RS. 1,09,80,204/- BEING THE AMOUNT ADDED TO THE INCOME BY THE APPELLANT SUO MOTTO, DUE TO THE CHANGE IN THE M ETHOD OF ACCOUNTING AND ESPECIALLY WHEN THE APPELLANT HAD A CHANGE IN THE METHOD OF ACCOUNTING IN THE YEAR ENDED 2010 THE INC OME PERTAINS TO THE PREVIOUS YEARS HAVE BEEN CONSIDERED IN THE RESP ECTIVE YEARS, AND THE ADDITIONS HAVE BEEN SUO MOTTO OFFERED TO TAX IN AY 2007-08 & 2008-09 ALSO. 4. THE APPELLANT PRAYS FOR APPROPRIATE RELIEF BASED ON THE SAID GROUNDS OF APPEAL AND THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, VARY, OMI T OR SUBSTITUTE ANY OF THE AFORESAID GROUNDS OF APPEAL AT ANY TIME BEFO RE OR AT THE TIME OF HEARING OF THE APPEAL. 2. WHEN MATTER WAS TAKEN UP FOR HEARING LD. AR MENT IONED THAT IN QUANTUM PROCEEDINGS COORDINATE BENCH IN ITA NO. 793 /DEL/2015 FOR AY 2009-10, DATED 09.03.2018 OUT OF THREE GROUNDS TWO GROUNDS HAVE BEEN SET ASIDE TO THE FILE OF LD. CIT(A) AND REQUESTED T HAT IF PRESENT APPEAL IS ALSO RESTORED BACK TO THE FILE OF LD. CIT(A) SAME W ILL MEET END OF THE JUSTICE. 3. ON THE OTHER HAND, LD. SR. DR HAS NO OBJECTION I F MATTER SENT BACK TO THE FILE OF LD. CIT(A). THEREFORE, AFTER GOING THROUGH THE PLEADINGS AND CONSIDERING THE PRAYER OF LD. AR, WE RESTORE TH E MATTER BACK TO THE I.T.A.NO.7831/DEL/2017 3 FILE OF LD. CIT(A) TO DECIDE PENALTY PROCEEDINGS AL ONGWITH QUANTUM MATTER. 4. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 13/07/2021 SD/- SD/- (N.K. BILLAIYA) (MAHAVIR PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 13.07.2021 * KAVITA ARORA, SR. P.S. COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A) / ITAT (DR)/GUARD FILE OF ITAT. BY ORDER ASSISTANT REGISTRAR, ITAT: DELHI BENCHES-DELHI