ITO Ward 5 (4), New Delhi V. Multimedia & Entertainment Ltd, New Delhi

MA 48/DEL/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6372 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-05-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2004-2005
• Appeal Filed On: 07-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MONGA
• Assessee Lawyers: ISHWAR DAYAL KANSAL
• Keywords: Additional evidence; Notional interest

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D NEW DELHI (FRIDAY) BEFORE SHRI R.P. TOLANI AND SHRI K.D. RANJAN M.A. NO. 48/DEL/2011 ( IN ITA NO. 3801/DEL/07 ) ASSTT. YR: 2004-05 INCOME-TAX OFFICER, VS. M/S MULTIMEDIA & ENTERTAI NMENT LTD. WARD-5(4), NEW DELHI. 72, REGAL BUILDING, 2 ND FLOOR, CONNAUGHT PLACE, NEW DELHI. PAN/GIR NO. AAACB3234G ( APPLICANT ) ( RESPONDENT ) APPLICANT BY : SH. A.K. MONGA, SR. DR RESPONDENT BY: SH. ISHWAR DAYAL KANSAL O R D E R PER R.P. TOLANI, J.M : THIS IS REVENUES MISC. APPLICATION U/S 254(2) OF T HE I.T. ACT, REQUESTING TO RECTIFY THE ALLEGED MISTAKE IN THE OR DER OF THE ITAT DATED 9-1- 09 IN ITA NO. 3801/DEL/07 2. IT MAY BE PERTINENT HERE TO MENTION THAT REVENUE HAD FILED A SIMILAR TYPE OF MISC. APPLICATION BEING M.A. N. 84/DEL/10 W HICH STOOD DISMISSED BY THE ITAT VIDE ORDER DATED 3-9-2010. THIS TIME ALSO IT IS FOUND THAT THE SECOND MISC. APPLICATION HAS NOT BEEN FILED IN PRES CRIBED PROFORMA. 3. LEARNED DR CONTENDS THAT GROUND NO. 3 RAISED BY THE REVENUE IN ITS APPEAL REGARDING NOT GIVING OPPORTUNITY TO AO, HAS NOT BEEN ADJUDICATED BY 2 THE ITAT. HE CONTENDS THAT THE ITAT FAILED TO APPRE CIATE THAT NECESSARY OPPORTUNITY WAS NOT GIVEN TO AO FOR VERIFICATION. 4. THE ASSESSEES AUTHORIZED REPRESENTATIVE, ON THE OTHER HAND, CONTENDS THAT NO FRESH EVIDENCE WAS FILED BEFORE THE CIT(A). THE AMOUNT IN QUESTION WAS ADVANCED IN EARLIER YEARS AND NOT DURING THE YE AR IN QUESTION. IN EARLIER YEAR, NO NOTIONAL INTEREST WAS DISALLOWED, VERIFICA TION OF AGREEMENT OF AN EARLIER LOAN, WHICH IS ACCEPTED BY AO OTHERWISE, CA NNOT BE CALLED FRESH EVIDENCE. BESIDES, CIT(A), APART FROM POWER OF ADMI SSION OF ADDITIONAL EVIDENCE, HAS PRIMARY RIGHT TO ASK FOR INQUIRIES AN D CAN DO WHAT AO COULD NOT HAVE DONE TO THE ASSESSMENT. THEREFORE, CIT(A) DID NOT COMMIT ANY VIOLATION OF RULE 46A WHILE EXAMINING THE AGREEMENT IN RESPECT OF ITS LOANS. THE ITAT ORDER IS PASSED ON MERITS AFTER DULY CONSI DERING THIS ARGUMENT IN PARA 12 OF THE ORDER AND THE DECISION BEING ON MERI TS, CLEARLY IMPLIES THAT THE REVENUES OBJECTION WAS NOT ACCEPTED. 5. WE HAVE HEARD RIVAL CONTENTIONS. WE FIND MERITS IN THE ARGUMENTS OF LEARNED COUNSEL FOR THE ASSESSEE. THE ISSUE IN RESP ECT OF NOTIONAL INTEREST WAS ACCEPTED IN EARLIER YEARS. THE ADVANCE COME FROM EA RLIER YEAR. THE ITAT ORDER IS ON MERITS AFTER RECORDING DRS OBJECTIONS. THE FACT THAT ITAT DECIDED THE ISSUE ON MERITS, CLEARLY IMPLIES THAT T HE OBJECTION OF LEARNED DR WAS NOT ACCEPTED. BESIDES, CIT(A) HAS PRIMARY POWER TO CONDUCT INQUIRY 3 AND CALL FOR ANY DOCUMENT FOR VERIFICATION. IN VIEW OF THESE FACTS, THERE IS NO MISTAKE IN TERMS OF SEC. 254(2) WHICH CAN BE RECTIF IED. THE ITAT ORDER BEING ON MERITS, REVENUES MISC. APPLICATION IS DIS MISSED. 6. IN THE RESULT, REVENUES M.A. IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 20-05-2011. SD/- SD/- ( K.D. RANJAN ) ( R.P. TOLANI ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 20-05-2011. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR