M/S. AVAYA INDIA PVT. LTD.,GURGAON V. ADDL. CIT, NEW DELHI

MA 80/DEL/2021

AI Insights

Avaya India Pvt. Ltd. filed a Miscellaneous Application (MA No. 80/Del/2021) against the order of the ITAT dated 20.01.2020, which had not addressed a specific ground of appeal concerning the disallowance of depreciation on a realized foreign exchange loss. The company argued that this depreciation was allowable under section 43A of the Income Tax Act and was substantiated in their tax computation and audit report. The Senior Departmental Representative (DR) did not contest the factual position but noted that the ground was not argued in the original hearing. The Tribunal found that the ground was indeed overlooked and recalled the order to specifically address this issue.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 712873 (ITAT-DELHI)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-07-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Assessment Year: 2012-2013
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY TRIPATHI
• Assessee Lawyers: SHASHWAT BAJPAI
• Keywords: Depreciation; Period of limitation; Time period of passing order

Judgement Text

"1 MA No. 80/Del/2021 (In ITA No. 1958/Del/2017) A.Y. 2012-13 Avaya India Pvt. Ltd. v. Addl. CIT IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “I” NEW DELHI BEFORE SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER AND MS. MADHUMITA ROY, JUDICIAL MEMBER M.A No. 80/Del/2021 (Arising out of ITA No.1958/Del/2017) Asstt. Yr. 2012-13 Avaya India Pvt. Ltd., Global Business Park, M.G. Road, Gurgaon-122001 Haryana (Registered Office: Level 3, 4 and 5, Tower 11, Cybercity, Megarpatta City, Hadapsar, Pune- 411028, Maharashtra v. The Assistant Commissioner of Income-tax, Circle-1(1), New Delhi ( Earlier as Addl. CIT, Special Range-1, New Delhi) \u0001थायीलेखासं./जीआइआरसं./PAN/GIR No: AAECA 3592 N Applicant .. Respondent Assesseeby : Sh. Shashwat Bajpai, Adv. Department by : Sh. Sanjay Tripathi, Sr. DR Date of Hearing 25.07.2025 Date of Pronouncement 30.07.2025 O R D E R PER RAMIT KOCHAR, AM: This Miscellaneous Application (MA) bearing No. 80/Del/2021 for assessment year 2012-13 has been filed by the assessee against Tribunal’s order Printed from counselvise.com 2 MA No. 80/Del/2021 (In ITA No. 1958/Del/2017) A.Y. 2012-13 Avaya India Pvt. Ltd. v. Addl. CIT dated 20.01.2020 passed in ITA No. 1958/Del/2017 for A.Y. 2012-13, in the aforesaid MA it is stated that the Tribunal has not adjudicated Ground no. 5 raised by the assessee in its grounds of appeals filed in Memo of appeal filed with ITAT, Delhi Benches, New Delhi, which Ground of Appeal No. 5 reads as under: \"5. That on the facts and circumstances of the case and in law, the Ld. AO and Hon'ble DRP erred in disallowing the depreciation of Rs. 2,42,421 allowable on the exchange loss capitalized to the cost of assets u/s 43A of the Act. The DRP and AO erred in treating the realized foreign exchange loss as notional and unsubstantiated without appreciating that the same was clearly reported as realized foreign exchange loss in the tax computation of income and tax audit report\" 2. It was submitted that this mistake of non-adjudication of Ground No. 5 has crept in the appellate order of the Tribunal in ITA No. 1958/Del/2017dated 20.01.2020 , and is now required to be rectified by recalling the Tribunal’s order to a limited extent to adjudicate ground no. 5 raised by the assessee. It was also submitted that the assessee filed MA with the Tribunal on 31.03.2021, while the appellate order of the Tribunal was dated 20.01.2020. It was submitted that limitation period for filing the appeal, MA etc. was extended by Hon’ble Supreme Court , keeping in view pandemic Covid-19, and hence there is no delay in filing this MA. Printed from counselvise.com 3 MA No. 80/Del/2021 (In ITA No. 1958/Del/2017) A.Y. 2012-13 Avaya India Pvt. Ltd. v. Addl. CIT 3. Ld. Sr. DR could not controvert this factual position. Although ld. Sr. DR submitted that it is stated in the Tribunal’s order that the grounds which ever have been argued have been adjudicated by the Tribunal, which means that the assessee did not argue Ground No. 5 before the Tribunal. 4. After hearing both the parties and perusing the material on record, we have observed that the Tribunal in its order dated 20.01.2020 has not adjudicated Ground No. 5 raised by the assessee in Memo of Appeal filed with the Tribunal. It is true that it is stated in the Tribunal’s order dated 20.01.2020 that grounds argued before the Tribunalwere adjudicated by the Tribunal, but there is no mention in the aforesaid appellate order dated 20.01.2020 of the Tribunal about disposal of the Ground No. 5, Nor it has been shown that the assessee has not pressed or had conceded or had withdrawn ground no. 5. Therefore, in the interest of justice and fairness to both the parties, we recall the Tribunal’s order dated 20.01.2020 to the limited extent to adjudicate ground no. 5 raised in ITA No. 1958/Del/2017, on merits in accordance with law. The said ground no. 5 reads as under: \"That on the facts and circumstances of the case and in law, the Ld. AO and Hon'ble DRP erred in disallowing the depreciation of Rs. 2,42,421 allowable on the exchange loss capitalized to the cost of assets u/s 43A of the Act. The DRP and AO erred in treating the realized foreign exchange loss as notional and unsubstantiated without appreciating that the same was clearly reported as realized foreign exchange loss in the tax computation of income and tax audit report\" Printed from counselvise.com 4 MA No. 80/Del/2021 (In ITA No. 1958/Del/2017) A.Y. 2012-13 Avaya India Pvt. Ltd. v. Addl. CIT The Registry is directed to fix appeal in ITA No. 1958/Del/2017 for hearing before the Division Bench on 01.09.2025 for adjudication of Ground No. 5. Issue notices to both the parties. We order accordingly. 4. Assessee’s Misc. Application in MA No. 80/Del/2021 arising out of ITA No. 1958/Del/2017 for assessment year 2012-13stands allowed accordingly. Order pronounced in the open court on 30.07.2025. Sd/- (MS. MADHUMITA ROY) Sd/- (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated 30.07.2025. PS: *MP* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals)/DRP 5. DR: ITAT ASSISTANT REGISTRAR ITAT DELHI Printed from counselvise.com "