Krishna Maruti Ltd, Haryana V. Addl. CIT, New Delhi

MA 55/DEL/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6887 (ITAT-DELHI)
• Duration Of Justice: 7 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-09-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2006-2007
• Appeal Filed On: 23-02-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SALIL MISHRA
• Assessee Lawyers: V K AGGARWAL
• Keywords: Opportunity of being heard; Revenue expenditure
• Section: 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : FRIDAY : NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI K.D. RANJAN, ACCOUNTANT MEMBER M.A NO. 55/DEL/2011 (ITA NO.3163/DEL/09) ASSESSMENT YEAR : 2006-07 ACIT, CIRCLE 5 (1), NEW DELHI. VS. KRISHNA MARUTI LTD., 40 KM STORE, DELHI JAIPUR HIGHWAY, GURGAON, HARYANA. PAN : AAACK1316N (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI SALIL MISHRA, DR RESPONDENT BY : SHRI V.K. AGGARWAL, AR O R D E R PER I.P. BANSAL, JUDICIAL MEMBER: VIDE MISCELLANEOUS APPLICATION FILED AS ABOVE, THE DEPARTMENT HAS SOUGHT RECALL OF THE ORDER OF THE TRIBUNAL PASSED ON 15 TH OCTOBER, 2010 IN ITA NO.3163/DEL/2009. IT IS THE CASE OF THE REVENUE TH AT THE APPEAL OF THE ASSESSEE HAS BEEN DECIDED WITHOUT CLUBBING THE SAME WITH THE APPEAL FILED BY THE REVENUE, HENCE, THE SAME IS TO BE RECALLED IN VIEW OF THE PRINCIPLE LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. VI JAY INT. UDYOG LTD. 152 ITR 111. 2. DURING THE COURSE OF HEARING OF THE PRESENT APPL ICATION, IT WAS POINTED OUT THAT SIMILAR APPLICATION WAS FILED BY THE REVENUE I N RESPECT OF IMMEDIATE PRECEDING YEAR I.E., FOR ASSESSMENT YEAR 2005-06 AN D THE TRIBUNAL HAS DECIDED MA NO.55/DEL/2011 2 THE SAID APPLICATION VIDE ORDER DATED 5 TH AUGUST, 2011 AND IT WAS POINTED OUT BY THE LEARNED AR THAT THE FACTS BEING IDENTICAL THE S AID DECISION WILL GOVERN THE PRESENT MISCELLANEOUS APPLICATION ALSO. 3. IN THIS VIEW OF THE SITUATION, AS THE AFOREMENTI ONED ORDER OF THE TRIBUNAL DATED 5 TH AUGUST, 2011 IN RESPECT OF MISCELLANEOUS APPLICATI ON FILED BY THE REVENUE FOR ASSESSMENT YEAR 2005-06 BEING PLACED ON RECORD, WE PASS SIMILAR ORDER FOR THE YEAR UNDER CONSIDERATION. THE SAID O RDER IS REPRODUCED IN ITS ENTIRETY:- IN THIS CASE, THE TRIBUNAL HAD PASSED ORDER ON THE APPEAL OF THE ASSESSEE-COMPANY ON 17.08.2009, IN WHICH THE APPEAL WAS PARTLY ALLOWED AS DISCUSSED IN THE ORDER. THE R EVENUE FILED A MISCELLANEOUS APPLICATION ON 23.02.2011 REQUESTI NG FOR RECALLING THE ORDER ON THE GROUND THAT THE APPEAL OF THE REVENUE WAS NOT TAKEN UP ALONG WITH THE APPEAL OF THE ASSESS EE. THIS SHOULD HAVE BEEN DONE IN VIEW OF THE PRINCIPLE LAI D DOWN BY HONBLE SUPREME COURT OF INDIA IN THE CASE OF CIT VS. VIJAY INTERNATIONAL UDYOG LTD., 152 ITR 111. 2. IN THE COURSE OF HEARING BEFORE US, THE LD. DR FILED THE PAPERS REGARDING THE APPEAL OF THE REVENUE AND RE QUESTED THAT IN VIEW OF THE AFORESAID DECISION, BOTH THE AP PEALS SHOULD HAVE BEEN HEARD TOGETHER. ACCORDINGLY, IT WAS REQUESTED THAT THE ORDER MAY BE RECALLED AND BOTH THE APPEALS MAY BE HEARD TOGETHER. 3. IN REPLY, THE LD. COUNSEL FOR THE ASSESSEE SU BMITTED THAT THE ONLY COMMON GROUND IN THE TWO APPEALS IS REGARD ING DISALLOWANCE TO BE MADE U/S 14A. IN THE APPEAL OF THE ASSESSEE, THIS GROUND HAS BEEN RESTORED TO THE FILE OF THE AO FOR FRESH DECISION AS PER LAW. ACCORDINGLY, THE APPLICATION IS OPPOSED. 4. WE HAVE CONSIDERED THE FACTS OF THE CASE, THE SUBMISSIONS MADE BEFORE US AND THE GROUNDS TAKEN B Y THE REVENUE IN ITS APPEAL. IT IS FOUND THAT THERE ARE TWO COMMON GROUNDS IN THE APPEAL REGARDING CAPITAL AND REVENUE EXPENDITURE ON SCIENTIFIC RESEARCH AND DEVELOPMENT, AND DISAL LOWANCE TO BE MADE U/S 14A. THE LD. COUNSEL FOR THE ASSESSEE H AD NOT PRESSED THE GROUND REGARDING DISALLOWANCE FROM CAPITAL EXPE NDITURE ON RESEARCH AND DEVELOPMENT AND, THUS, THESE GROUNDS W ERE DISMISSED. THE GROUND REGARDING DISALLOWANCE TO BE MADE U/S 14A WAS RESTORED TO THE FILE OF THE AO WITH THE FOLLOWI NG REMARKS:- MA NO.55/DEL/2011 3 THEREFORE, WE THINK IT FIT TO RESTORE THIS GROUND TO THE FILE OF THE AO WITH A VIEW TO RECORD EXPLICITLY H IS SATISFACTION ABOUT THE CORRECTNESS OR OTHERWISE OF THE CLAIM OF THE ASSESSEE HAVING REGARD TO THE ACCO UNTS MAINTAINED BY IT. IN CASE THE CLAIM IS NOT FOUND TO BE CORRECT, HE MAY PROCEED TO DECIDE THE QUANTUM OF DISALLOWANCE AS PER LAW AFTER GRANTING A REA SONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THUS, TH IS GROUND IS TREATED AS ALLOWED FOR STATISTICAL PURPO SES. 4.1 THEREFORE, NO PREJUDICE IS CAUSED TO THE REVENUE FROM THE DISPOSAL OF ITS APPEAL. AT THE SAME TIME, IT IS SEEN FROM THE RECORD OF THE PROCEEDINGS THAT THE PENDENCY OF REVEN UES APPEAL WAS NOT BROUGHT TO THE NOTICE OF THE TRIBUNAL AT THE TIME OF HEARING OF THE ASSESSEES APPEAL. IF THE SAME WAS DONE, THEN THE TWO APPEALS WOULD HAVE BEEN CONSOLIDATED F OR THE PURPOSE OF DISPOSAL BY WAY OF COMMON ORDER IN TH E LIGHT OF THE PRINCIPLE LAID DOWN BY HONBLE SUPREME COURT IN TH E CASE OF VIJAY INTERNATIONAL UDYOG LTD. SINCE THE OMISSION OC CURRED ON ACCOUNT OF THE FAILURE OF THE REVENUE, IT WOULD NOT B E IN THE INTEREST OF JUSTICE TO RECALL THE IMPUGNED ORDER NOW. 5. IN THE RESULT, THE APPLICATION IS DISMISSED. THE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 5 AU GUST, 2011. 4. RESPECTFULLY FOLLOWING THE SAID DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE IN RESPECT OF THE IMMEDIATE PRECEDING YEAR, WE DISMISS THE PRESENT APPLICATION ALSO. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE REVENUE IS ALLOWED IN THE MANNER AFORESAID. . THE ORDER PRONOUNCED IN THE OPEN COURT ON 23.09.20 11. SD/- SD/- [K.D. RANJAN] [I.P. BANSAL] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED, 23.09.2011. DK MA NO.55/DEL/2011 4 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES