M/s Delhi International Airport Private Limited, Bangalore V. Deputy Commissioner of Income Tax, Central Circle-2(2), Bangalore

MA 311/BANG/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 2502 (ITAT-BANGALORE)
• Duration Of Justice: 8 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-06-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 26-09-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR P V PRADEEP KUMAR
• Assessee Lawyers: SUNIL JAIN
• Keywords: Search and seizure; Opportunity of being heard; Set aside
• Section: 143(3); 153A; 40(a)(ia); 254(2); 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, BANGALORE BEFORE SHRI. JASON P. BOAZ, ACCOUNTANT MEMBER AND SHRI. PAVAN KUMAR GADALE, JUDICIAL MEMBER [MP NO. 311/BANG/2018 (IN ITA NO. 5 81 /B ANG /201 7 )] (ASSESSMENT YEAR: 20 07 - 08 ) M/S. DELHI INTERNATIONAL AIRPORT PVT. LTD., NO.25/1, SKIP HOUSE, MUSEUM ROAD, BENGALURU 560 025. PAN : AACCD 3570 F VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(2), BENGALURU. APPELLANT RESPONDENT ASSESSEE BY : SHRI. SUNIL JAIN, CA REVENUE BY : DR. P. V. PRADEEP KUMAR, ADDL. CIT DATE OF HEARING : 21 .0 6 .201 9 DATE OF PRONOUNCEMENT : 21 .0 6 .201 9 O R D E R PER JASON P. BOAZ, AM : THIS MISCELLANEOUS APPLICATION (MP) BY THE ASSESSEE IS RAISED IN RESPECT OF TRIBUNALS ORDER IN ITA NO.581/BANG/2017 DATED 19.04.2018 FOR ASSESSMENT YEAR 2007-08. 2. IN THE MP, THE ASSESSEE SUBMITS THAT CERTAIN INADVERTENT ERRORS HAVE CREPT INTO TRIBUNALS ORDER (SUPRA) FOR ASSESSMENT YEAR 2007-08 WHICH REQUIRES RECTIFICATION. THE SUBMISSIONS IN THIS REGARD ARE AS UNDER:- MP NO. 311/BANG/2018 (IN ITA NO.581/BANG/2017) PAGE 2 OF 7 MP NO. 311/BANG/2018 (IN ITA NO.581/BANG/2017) PAGE 3 OF 7 MP NO. 311/BANG/2018 (IN ITA NO.581/BANG/2017) PAGE 4 OF 7 3. THE LEARNED DR FOR REVENUE VEHEMENTLY OPPOSED THE M.P. CONTENDING THAT WHAT IS SOUGHT IN THE M.P. BY THE ASSESSEE IS BEYOND THE SCOPE OF SECTION 254(2) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). MP NO. 311/BANG/2018 (IN ITA NO.581/BANG/2017) PAGE 5 OF 7 4. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND CAREFULLY PERUSED THE IMPUGNED ORDER OF THE TRIBUNAL IN ITA NO.581/BANG/2017 DATED 16.04.2018 AND THE AVERMENTS OF THE ASSESSEE IN THE M.P. IN THIS CONTEXT, IT WOULD BE RELEVANT TO EXTRACT HEREUNDER THE ENTIRE TRIBUNAL ORDER FOR THE IMPUGNED ASSESSMENT YEAR 2007-08 AS IT APPEARS THEREIN:- 35. ITA NO.581/BANG/2017 IN THIS APPEAL, THE ASSESSEE HAS ASSAILED THE ORDER OF CIT(A), INTER ALIA, ON FOLLOWING GROUNDS: GROUND I: ORDER PASSED UNDER SECTION 143(3) R.W.S. 153A IS LIABLE TO BE QUASHED 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN HOLDING THAT IN CASE A NOTICE UNDER SECTION 153A IS ISSUED THE ASSESSING OFFICER IS BOUND TO ASSESS AND REASSESS THE TOTAL INCOME OF THE APPELLANT. 2. THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-10(1), NEW DELHI HAS COMPLETED THE ASSESSMENT OF THE APPELLANT VIDE ORDER DATED DECEMBER 29, 2009 PASSED UNDER SECTION 143(3) AND IN THE COURSE OF SUCH ASSESSMENT AND EXAMINATION WAS MADE. A SEARCH AND SEIZURE OPERATION UNDER SECTION 132 WAS CONDUCTED ON OCTOBER 11, 2012 AND DURING THE COURSE OF SEARCH NO INCRIMINATING DOCUMENTS OR UNDISCLOSED INCOME WAS FOUND. 3. THE CIT(A) HAS ERRED IN NOT CONSIDERING THAT HAVING REGARD TO THE SECOND PROVISO TO SECTION 153A, THE COMPLETED ASSESSMENT CANNOT BE DISTURBED EXCEPT ONLY IN THE CASE WHERE THERE IS ANY UNDISCLOSED INCOME FOUND IN THE COURSE OF SEARCH OR ANY INCRIMINATING DOCUMENTS POINTING TOWARDS SUCH UNDISCLOSED INCOME IS FOUND IN THE COURSE OF SEARCH OR IN THE COURSE OF ASSESSMENT PROCEEDINGS UNDER SECTION 153A OF THE INCOME-TAX ACT. 4. THE APPELLANT THEREFORE PRAYS THAT THE ORDER PASSED BY THE ASSESSING OFFICER IS CONTRARY TO THE PROVISIONS OF LAW AND LIABLE TO BE QUASHED SINCE NO UNDISCLOSED INCOME IS FOUND IN THE COURSE OF SEARCH OR IN THE COURSE OF PROCEEDINGS UNDER SECTION 153A WITHOUT PREJUDICE TO THE ABOVE GROUND II: ADDITION ON ACCOUNT OF DISALLOWANCE OF COLLECTION CHARGES OF RS.2,74,32,632/- RETAINED BY THE AIRLINES UNDER SECTION 40(A)(IA): MP NO. 311/BANG/2018 (IN ITA NO.581/BANG/2017) PAGE 6 OF 7 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN UPHOLDING THE ACTION OF THE DEPUTY COMMISSIONER OF INCOME-TAX. CENTRAL CIRCLE 2(2), BANGALORE (HEREINAFTER REFERRED TO AS AO) IN MAKING THE DISALLOWANCE OF COLLECTION CHARGES OF RS.2,74,32,632/- RETAINED BY THE AIRLINES UNDER SECTION 40(A)(IA) ON COMPLETION OF ASSESSMENT U/S. 153A. 2. THE CIT(A) FAILED TO APPRECIATE AND OUGHT TO HAVE HELD THAT THE PROVISIONS OF SECTION 194H OF THE INCOME TAX ACT,1961 ARE NOT APPLICABLE IN AS MUCH AS THERE IS NO PRINCIPAL AND AGENT RELATIONSHIP BETWEEN THE APPELLANT AND THE AIRLINES. FURTHER THE APPELLANT DURING THE COURSE OF ASSESSMENT PROCEEDINGS HAS MADE DETAILED SUBMISSION IN SUPPORT OF CLAIM THAT THE AIRLINES HAS DISCHARGED ITS INCOME TAX LIABILITY ON COLLECTION CHARGES OF RS.2,74,32.632/- RETAINED BY THE AIRLINES WHEREVER APPLICABLE. 3. THE APPELLANT THEREFORE PRAYS THAT THE ASSESSING OFFICER BE DIRECTED TO ALLOW THE CLAIM OF COLLECTION CHARGES OF RS.2,74,32,632/- RETAINED BY THE AIRLINES. 4. GROUND III: THE APPELLANT CRAVES LEAVE TO ADD, ALTER AND/OR AMEND ALL OR ANY OF THE FOREGOING GROUNDS OF APPEAL. 36. DURING THE COURSE OF HEARING, GROUND NO.1 IS NOT PRESSED, THEREFORE, THE SAME IS DISMISSED BEING NOT PRESSED. GROUND NO. 2 HAS ALREADY BEEN ADJUDICATED BY US IN FOREGOING APPEAL IN ITA NO. 622/BANG/2017. THEREFORE, FOLLOWING THE SAME, WE SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE MATTER TO AO TO READJUDICATE THE ISSUE AFRESH AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN TERMS INDICATED IN THE FOREGOING APPEALS. 5. ON A PERUSAL OF THE IMPUGNED ORDER OF THE TRIBUNAL IN RESPECT OF WHICH THE ASSESSEE HAS PREFERRED THIS MP AND ON PERUSAL OF THE RELEVANT TRIBUNAL FILE MAINTAINED FOR THIS APPEAL, WE FIND THAT IT HAS BEEN NOTED IN THE MARGIN IN THE GROUNDS OF APPEAL ATTACHED TO FORM 36 THAT GROUND NO.1 NP (I.E., NOT PRESSED) AND IN ACCORDANCE THEREWITH, AT PARA 36 OF THE TRIBUNAL ORDER EXTRACTED ABOVE, IT HAS BEEN HELD THAT DURING THE COURSE OF HEARING, GROUND NO.1 IS NOT PRESSED AND THEREFORE THE SAME IS BEING DISMISSED BEING NOT PRESSED AND THE OTHER GROUND NO.2 HAS BEEN SET ASIDE AND RESTORED TO THE FILE OF THE AO FOR READJUDICATION OF THE ISSUE AFRESH AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IN THIS VIEW OF THE MATTER, WE FIND THAT THERE IS NO MISTAKE APPARENT FROM THE RECORD, IN THE AFORESAID ORDER OF THE TRIBUNAL FOR ASSESSMENT YEAR 2007-08 IN THE CASE ON HAND, MP NO. 311/BANG/2018 (IN ITA NO.581/BANG/2017) PAGE 7 OF 7 THAT REQUIRES CORRECTION / RECTIFICATION IN ACCORDANCE WITH THE PROVISIONS OF SECTION 254(2) OF THE ACT. WE, THEREFORE, FIND NO MERITS IN THE ISSUES CANVASSED BY THE ASSESSEE IN THIS MP AND ACCORDINGLY DISMISS THE SAME. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE FOR ASSESSMENT YEAR 2007-08 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST JUNE, 2019. SD/- SD/- ( PAVAN KUMAR GADALE ) (JASON P BOAZ) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE : BANGALORE DATED : 21/06/2019 /NS/* COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A) - II BANGALORE 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.