ACIT, New Delhi V. SRF Ltd., Gurgaon

MA 578/DEL/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5066 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 1 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-11-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2003-2004
• Appeal Filed On: 10-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RATHI BIMAL
• Assessee Lawyers: SATYAM SETHI
• Keywords: Depreciation; Audit objection; Difference of opinion; Change of opinion
• Section: 147

Judgement Text

1 M.A NO. 578/DEL/2018 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: FRIDAY NEW DELHI BEFORE MS SUCHITRA KAMBLE, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER M.A NO. 578/DEL/2018 IN ( I.T.A. NO. 4651/DEL/2010 A.Y 2003-04) D Y. C OMMISSIONER OF I NCOME TAX, CIRCLE-1, LTU, NEW DELHI. (APPLICANT) VS SRF LTD. BLOCK C, SECTOR 45, GURGAON AACS 0206 P (RESPONDENT) APPLICANT BY MS. RATHI BIMAL, SR. D.R RESPONDENT BY SHRI SATYAM SETHI, ADV. ORDER PER SUCHITRA KAMBLE, JM THIS MISCELLANEOUS APPLICATION IS FILED BY THE REVE NUE IN RESPECT OF ORDER DATED 03.04.2018. 2. THE LEARNED DR SUBMITTED AS UNDER: 2. THE DECISION OF THE ITAT IS THEREFORE INCORRECT BOTH PURPORTED IN LAW AND ON 'FACTS. HONBLE ITAT HAS PASSED JUDGEMENT ON THE BASIS OF LETTER DATED 14.05.2008 PRODUCED BY THE ASSESSEE REPRESENT ATIVE DURING THE COURSE OF HEARING. HOWEVER, THIS LETTER DATED 14.05 .2008 ON WHICH HONBLE ITAT RELIED WHILE PASSING THE ORDER IS NEIT HER AVAILABLE ON THE FILE RECORDS OF THIS OFFICE NOR ON THE RECORD OF TH E SR. DR, G BENCH, ITAT. THUS THE AUTHENTICITY OF THIS LETTER RELIED UPON AN D THE CONTEXT IN WHICH THE SAME WAS PURPORTED TO BE WRITTEN REMAINS UNEXAM INED. COPIES OF LETTER WRITTEN TO SR. DR AND REPLY RECEIVED ARE ALS O ENCLOSED AS ANNEXURE B1 & B2. DATE OF HEARING 18.10.2019 DATE OF PRONOUNCEMENT 05.11.2019 2 M.A NO. 578/DEL/2018 3. IN THIS CASE, THE AUDIT HAS POINTED OUT INFORMATION , WHICH WAS NOT IN THE NOTICE OF THE AO; WHO PASSED THE ORIGINAL ASSES SMENT ORDER. THIS INFORMATION INCLUDED:- I. THE ASSESSEE HAS CLAIMED A DEDUCTION OF RS. 1,58,46 ,251/- TOWARD PREPAYMENT ON ICICI LOAN. THIS PARTICULAR ASPECT HA S NOT BEEN CONSIDERED BY THE AO, AS IT IS IN THE NATURE OF CAPITAL EXPEND ITURE. II. FURTHER, THE ASSESSEE CLAIMED A DEDUCTION OF RS. 1, 58,87,715/- ON ACCOUNT OF DEPRECIATION IN RESPECT OF ITS HEAD OFFI CE WHEREAS AS PER 3CD REPORT, THE ELIGIBLE DEPRECIATION WAS SHOWN AT RS. 1,38,46,709/- ONLY. 3.1 THIS WAS NEW INFORMATION, THOUGH POINTED OUT BY THE AUDIT, BUT WAS NEVER CONSIDERED BY THE AO. THE REOPENING WAS THERE FORE BASED ON NEW INFORMATION, AND IS NOT IN ANY WAY A CASE OF 'CHANG E OF OPINION'. THUS, THE HONBLE ITAT HAS ERRED IN FINDINGS ON PAGE NO. 5 PA RA 8 THAT THE ISSUES RAISED IN THE REOPENING WAS ALREADY EXAMINED IN THE AUDIT OBJECTION AND RE-OPENING OF CASE U/S 147 IS CHANGE OF OPINION. HO N'BLE ITAT HAS RELIED ONLY UPON THE LETTER DATED 14.05.2008 WITHOUT PERUS AL OF MATERIAL AVAILABLE ON RECORD WITHOUT CONSIDERING THE CASE ON MERIT. THE DECISION OF THE ITAT IS THEREFORE INCORRECT BOTH IN LAW AND ON FACTS AND IS CONTRARY TO THE SETTLED LAW AS DECIDED BY THE HON'BLE SUPREME C OURT IN THE CASES OF CIT VS PVS BEEDIS PVT. LTD 237 ITR 13 TECHSAPN INDI A PVT. LTD 92 TAXMANN.COM 361. 4. THEREFORE, IN VIEW OF THE ABOVE THE PRESENT MISCELL ANEOUS APPLICATION IS BEING FILED BEFORE THE HONBLE ITAT REQUESTING FOR CONSIDERING THE ABOVE MENTIONED ISSUE AND TO REVISE ITS ORDER D ATED 03.04.2018. 3. THE LD. AR OPPOSED THE MISC. APPLICATION. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED ALL T HE RELEVANT MATERIAL AVAILABLE ON RECORD. THE LETTER DATED 14.05.2008 WA S PRODUCED BY THE ASSESSEE FROM THE RECORDS WHICH WERE BEFORE THE CIT(A) AS WE LL, THEREFORE, WE HAVE RIGHTLY TAKEN COGNIZANCE OF THIS LETTER WHILE GIVIN G OUR FINDING. NON AVAILABILITY OF THAT LETTER IN THE DEPARTMENTS RECORDS IS NOT J USTIFIED AS THE SAME HAS BEEN MENTIONED IN THE SUBSEQUENT LETTERS AS WELL. THEREF ORE, THIS MISC. APPLICATION IS DISMISSED. 3 M.A NO. 578/DEL/2018 5. IN THE RESULT, MISC. APPLICATION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 5 TH DAY OF NOVEMBER, 2019 . SD/- SD/- (PRASHANT MAHARISHI) (SU CHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 05/11/2019 PRITI YADAV, SR. PS * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 4 M.A NO. 578/DEL/2018 DATE OF DICTATION 05 . 11 .2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 05.11 .2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK