Focus Energy Ltd., New Delhi V. DCIT, New Delhi

ITA 895/DEL/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6932 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 5 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 15-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NIDHI SRIVASTAVA
• Assessee Lawyers: NIPPUN MITTAL
• Keywords: Search and seizure; Earning of tax free income
• Section: 143(3); 153A; 14A; 132; 2; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: B , NEW DELHI BEFORE SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEM BER AND SHRI O.P. KANT, ACCOUNTANT MEMBER ITA NO S . 895 TO 897 /DEL/ 2017 ASSESSMENT YEAR S : 2010 - 11 TO 2012 - 13 M/S. FOCUS ENERGY LTD., 3 RD FLOOR, GOPALA TOWER 25, RAJENDRA PLACE, NEW DELHI VS. DCIT, CENTRAL CIRCLE - 19, NEW DELHI PAN : AAACP1563C (APPELLANT) (RESPONDENT) APPELLANT BY SHRI NIPPUN MITTAL, CA RESPONDENT BY MS. NIDHI SRIVASTAVA, CIT(DR) ORDER PER O.P. KANT, A.M.: THESE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST THREE SEPARATE ORDERS DATED 14/12/2016 PASSED BY THE LD. COMMISSIONER OF INCOME - TAX (APPEALS) - 27, NEW DELHI [IN SHORT THE LD. CIT(A) ] FOR ASSESSMENT YEAR 2010 - 11, 2011 - 12 AND 2012 - 13 RESPECTIVELY. A COMMON ISSUE - IN - DISPUTE IS INVOLVED IN ALL THE THREE APPEALS IN SAME SET OF CIRCUMSTANCES, AND THUS ALL THESE APPEALS WERE HEARD TOGETHER A N D DISPOSED OFF BY WAY OF THIS CONSOLIDATED ORDER FOR CONVENIENCE. 2. IN THE GROUNDS RAISED IN ALL THE THREE APPEALS , THE DISALLO WANCE UNDER SECTION 14A OF THE INCOME - TAX A CT, 1961 (IN SHORT THE A CT ) IS IN DISPUTE. THE QUANTUM OF DISALLOWANCE IN THE THR EE ASSESSMENT YEAR IS AS UNDER: DATE OF HEARING 29.07.2019 DATE OF PRONOUNCEMENT 30.07.2019 2 ITA NO S . 895, 896 & 897/DEL/2017 ASSESSMENT Y EAR AMOUNT OF DISALLOWANCE 2010 - 11 RS.9,90,798/ - 2011 - 12 RS.9,90,798/ - 2012 - 13 RS.9,90,798/ - 3. BRIEFLY STATED FACTS OF THE CASE ARE THAT IN THE CASE OF THE ASSESSEE S SEARCH AND SEIZURE ACTION UNDER SECTION 132 OF THE ACT WAS CARRIED OUT ON 22/0 3/2012. CONSEQUENTLY ASSESSMENTS FOR ASSESSMENT YEAR 2010 - 11 AND 2011 - 12 W ERE COMPLETED UNDER SECTION 153A OF THE A CT ON 30/03/2015 AND ASSESSMENT FOR ASSESSMENT YEAR 2012 - 13 WA S COMPLETED UNDER SECTION 143(3) OF THE A CT ON 30/03/2015. THE ASSESSEE CHALLENGED THE ASSESSMENT ORDERS BEFORE THE LD. CIT(A). DUE TO NON - COMPLIANCE OF THE NOTICES ISSUED BY THE LD. CIT(A), ALL THE THREE APPEALS WERE DISMISSED EX PARTE. AGGRIEVED , AS SESSE E FILED APPEAL BEFORE THE T RIBUNAL AND CHALLENGED TH E DISALLOWANCE UNDER SECTION 14A OF THE A CT. 4. BEFORE US, THE LD. COUNSEL OF THE ASSESSEE FILED COPY OF RETURN OF INCOME ALONG WITH COMPUTATION SHEET FOR ALL THE THREE ASSESSMENT YEARS AND SUBMITTED THA T NO EXEMPTED INCOME WAS EARNED BY THE ASSESSEE IN ALL THE THREE ASSESSMENT YEAR S AND THEREFORE, IN VIEW OF THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF THE P RINCIPAL COMMISSIONER OF INCOME T AX VS. GVK PROJECT AND TECHNICAL S ERVICES LTD . REPORT ED IN (2019) 106 TAXMANN.COM 181 (SC), THE DISALLOWANCE MIGHT BE DELETED. 5. THE LD. DR, ON THE OTHER HAND , SUPPORTED THE ORDER OF THE LOWER AUTHORITIES. 6. WE HAVE HEARD THE RIVAL SUBMISSION AND PERUSED THE MATERIAL ON RECORD IN THE LIGHT OF THE DECISION OF THE HON BLE 3 ITA NO S . 895, 896 & 897/DEL/2017 SUPREME COURT CITED BY THE LD. COUNSEL OF THE ASSESSEE. ON PERUSAL OF THE ASSESSMENT ORDERS IN ALL THE THREE ASSESSMENT YEARS AND THE COPY OF RETURN OF INCOME ALONG WITH COMPUTATION SHEET FILED, IT IS EVIDENT THAT NO EXEMPT INCOME WAS EARNED BY THE ASSESSEE IN ALL THE THREE ASSESSMENT YEARS. THE HON BLE SUPREME COURT IN THE CASE OF GVK PROJECT AND TECHNICAL S ERVICES LTD . (SUPRA) HAS APPROVED THE DECISION OF THE HON BLE DELHI HIGH COURT IN THE CASE OF CHEMINVEST LTD. VS CIT (2015) 61 TAXMANN.C OM 118 (DELHI) WHEREIN IT IS HELD THAT IN ABSENCE OF AN EXEMPT INCOME , DISALLO WANCE UNDER SECTION 14A OF THE A CT IS NOT PERMISSIBLE. IN VIEW OF NO EXEMPTED INCOME IN THE CASE OF THE ASSESSEE FOR ALL THE THREE ASSESSMENT YEARS, THE DISALLOWANCE MADE BY THE ASSESSING OFFICER AND SUSTAINED BY THE LD. CIT(A) IS DIRECTED TO BE DELETED. THE RESPECTIVE GROUNDS IN ALL THE THREE APPEALS RAISED ACCORDINGLY ALLOWED . 7. IN THE RESULT, ALL THE THREE APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 3 0 T H JULY , 2019. SD / - S D / - [ SUDHANSHU SRIVASTAVA ] [O.P. KANT] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 3 0 T H JULY , 2019. RK/ - [D.T.D.S] COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5 . DR ASST. REGISTRAR, ITAT, NEW DELHI