M/s. FCS Software Solution Ltd, New Delhi V. ACIT, New Delhi

MA 10/DEL/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6390 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-04-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 18-01-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K MONGA
• Assessee Lawyers: ASHOK MALIK

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL [DELHI BENCH B (FRIDAY)] BEFORE SHRI RAJPAL YADAV AND SHRI K.G. BANSAL M.A. NO. 10(DEL)/2011 (ARISING OUT OF ITA NO. 4814(DEL)/2009) ASSESSMENT YEAR: 2003-04 FCS SOFTWARE SOLUTION LTD., ASSTT. COMMISSIONER OF INCOME 205, 2 ND FLOOR, AGGARWAL CHAMBER-IV, VS. TAX, CIRCLE 11(1), NEW DELHI. VEER SAVARKAR BLOCK, VIKAS MARG, NEW DELHI. (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI ASHOK MALIK, C.A. RESPONDENT BY : SHRI A.K. MONGA, DR ORDER PER K.G. BANSAL : AM IN THIS CASE, THE TRIBUNAL HAD PASSED ITS ORDER ON 12.11.2010, IN WHICH THE APPEAL OF THE REVENUE WAS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. THE ASSESSEE FILED A MISC. APPLICATI ON ON 8.2.2011 STATING THAT A MISTAKE APPARENT FROM RECORD HAS CREPT IN T HE ORDER, WHICH REQUIRES RECTIFICATION U/S 254(2) OF THE ACT. 2. BEFORE US, IT HAS BEEN EXPLAINED THAT THE MIST AKE HAS OCCURRED AS THE APPEAL HAS BEEN TREATED AS ALLOWED FOR STA TISTICAL PURPOSES. IN THIS CONNECTION, IT HAS BEEN MENTIONED IN PARAGRAPH NO. 4.1 THAT THE SUBMISSION OF THE ASSESSEE BEFORE THE LD. CIT(APPEALS) HA D BEEN THAT THE AMOUNT TO MA NO. 10(DEL)/2011 2 BE CONSIDERED FOR THE PURPOSE OF DISALLOWANCE U/ S 40(A)(I) WAS ONLY RS. 15,66,598/-. THEREAFTER, IT HAS BEEN INTER-ALIA MENTIONED IN PARAGRAPH NO. 4.3 THAT THE LD. DR HAS NOT BEEN ABLE TO FIND ANY ERROR IN THE FINDING OF THE LD. CIT(APPEALS) IN WHICH THE AMOUNT WAS QUANTIF IED AT RS. 15,66,598/-. IT IS FURTHER MENTIONED THAT THE LD. CIT(APPEA LS) HAS TAKEN CONTRADICTORY STAND. ON ONE HAND, THE DISALLOWANCE HAS BEEN DELETED BUT ON THE OTHER HAND, THE AO HAS BEEN DIRECTED TO INTIMATE THE TRANSACTION TO THE AO (TDS) AND THE AO (INTERNATIONAL TAX) TO DECIDE THE APPLICABILITY OF TDS PROVISION. AS THIS POINT REQUIRED DETAILED E XAMINATION, THE GROUND WAS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. T HE CASE OF THE LD. COUNSEL IS THAT THE GROUND SHOULD HAVE BEEN RESTORED TO THE LD. CIT(APPEALS) IN RESPECT OF THE AMOUNT OF RS. 15,66,598/- ONLY. 3. ON THE OTHER HAND, THE LD. DR HAS EXPLAINED TH AT THE FIRST PART OF DETERMINATION OF THE AMOUNT IS FACTUAL IN NATURE AND IT HAS BEEN RECORDED BY THE TRIBUNAL THAT THE LD. DR HAS NOT BEEN ABL E TO FIND ANY ERROR IN THE FINDINGS OF THE LD. CIT(APPEALS) REGARDING PAYMENT OF PROFESSIONAL CHARGES. THEREAFTER, THE GROUND HAS BEEN RESTORE D TO THE FILE OF THE LD. CIT(A) FOR DECIDING IT ON MERITS AFTER CONSIDERI NG JURISPRUDENCE IN THE MA NO. 10(DEL)/2011 3 MATTER. CONSEQUENTLY, THE APPEAL HAS BEEN TREATE D AS ALLOWED FOR STATISTICAL PURPOSES. THERE IS NO ERROR IN RECORDIN G THE RESULT OF THE APPEAL. 4. WE HAVE CONSIDERED THE FACTS OF THE CASE AND SUBMISSIONS MADE BEFORE US. WE DO NOT FIND ANY ERROR IN THE ORDE R OF THE TRIBUNAL WHERE FACTUAL POSITION HAS BEEN NARRATED AND THEREAFTER THE MATTER HAS BEEN RESTORED TO THE FILE OF THE LD. CIT(APPEALS) FOR GI VING DEFINITE FINDING IN THE MATTER. THE MENTION THAT THE APPEAL IS TREATED A S ALLOWED FOR STATISTICAL PURPOSES IS IN ORDER BECAUSE THE STATISTICS HA S TO BE COMPILED AS TO WHETHER THE APPEAL IS TREATED AS ALLOWED OR DISM ISSED. IT HAS NO BEARING AS SUCH ON THE FINDING ON MERITS GIVEN IN PARAG RAPH NO. 4.3. 5. THUS, THE APPLICATION IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT ON 21 APRIL, 2011. SD/- SD/- (RAJPAL YADAV) (K.G.BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 21ST APRIL, 2011. SP SATIA COPY OF THE ORDER FORWARDED TO: FCS SOFTWARE SOLUTION LTD., LTD., NEW DELHI. ACIT, CIRCLE 11(1), NEW DELHI. CIT(A) CIT THE DR, ITAT, NEW DELHI. ASSISTANT REGISTRAR.