Nanjing Electric (Group) Co. Ltd., Noida V. DCIT, New Delhi

MA 7/DEL/2020

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 6184 (ITAT-DELHI)
• Duration Of Justice: 1 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2011-2012
• Appeal Filed On: 06-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M BARNWAL
• Assessee Lawyers: I P BANSAL
• Keywords: Set aside
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH FRIDAY/E, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER M.A. NO. 07/DEL/2020 (IN I.T.A. NO. 1124 /DEL/201 5 ) AY: 2011-12 M/S NANJING ELECTRIC (GROUP) CO. LTD., NO. 63, TAIXIN ROAD, NANJING CHINA (PAN: AADCN3651Q) VS. DCIT, CIRCLE 2(2)(2), INTERNATIONAL TAXATION, NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. I.P. BANSAL, ADV. DEPARTMENT BY : SH. M. BARNWAL, SR. DR. ORDER PER H.S. SIDHU, JM ASSESSEE HAS FILED THE PRESENT MISC. APPLICATION F OR SETTING ASIDE THE EXPARTE ORDER DATED 01.07.2016 PASSED IN ITA NO. 11 24/DEL/2015 (AY 2011- 12). 2. DURING THE HEARING, LD. COUNSEL FOR THE ASSESSEE , SH. I.P. BANSAL, STATED THAT THE TRIBUNALS ORDER DATED 01.07.2016 IS AN EX PARTE ORDER WHICH WAS DISMISSED BY THE TRIBUNAL IN LIMINI, WHICH IS CONT RARY TO RULE 24 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963. HE STATED THA T EXACTLY SIMILAR ISSUE HAS ALREADY BEEN DECIDED BY THE ITAT IN FAVOUR OF THE A SSESSEE IN ASSESSMENT YEAR 2009-10. HE FURTHER STATED THAT NOTICE OF HEARING WAS ISSUED TO THE ASSESSEE ON 20.6.2016 FOR 01.07.2016 WHICH WAS NOT RECEIVED BY THE ASSESSEE. THE CONTENTION OF THIS ARGUMENT IS SUPPORTED BY THE AFF IDAVIT DATED 17.12.2019 OF 2 LD. AR OF THE ASSESSEE SH. XUDONG XIA, S/O SHRI SHU NDE, RESIDENT OF NO. 181, LANE 333, JINHAI ROAD, PUDONG NEW DISTRICT, SHANGHA I, CHINA. 2.1 LD. COUNSEL FOR THE ASSESEE FURTHER STATED THAT ASSESSEE IS VERY MUCH INTERESTED TO PROSECUTE THE MATTER IN DISPUTE BECAU SE ON EXACTLY SIMILAR FACTS OF THE PRESENT CASE, THE AO HAS PASSED THE IMPUGNED ORDER IN RESPECT OF ASSESSMENT YEAR 2011-12 BY FOLLOWING THE ASSESSMENT ORDER FOR AY 2009-10. ASSESSEE HAS ALSO RELIED UPON DECISION OF THE HONB LE JURISDICTIONAL HIGH COURT IN THE CASE OF LG CABLES LTD. AND LS CABLES LTD. HOWEVER, THE AO HAS REFUSED TO APPLY THESE DECISIONS ON THE GROUND THAT DEPARTM ENT HAS NOT ACCEPTED THOSE DECISIONS AND HAS FILED SLP AGAINST THOSE DECISIONS OF HONBLE DELHI HIGH COURT AND COMPUTED THE TAXABLE INCOME OF THE A SSESSEE AT A SUM RS. 20,72,358/-, WHICH IS CONTRARY TO STAND OF THE ASSESSEE THAT NO INCOME WAS ASSESSABLE IN THE HANDS OF THE ASSESSEE AS IT IS TH E CASE OF OFF-SHORE SUPPLY AND NO AMOUNT OF INCOME IS ASSESSABLE IN THE HANDS OF T HE ASSESSEE. 2.2 LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT THE APPEAL OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2009-10 WAS DECIDE D BY THE TRIBUNAL ON 22.2.2013 IN ITA NO. 6175DEL/2012 WHEREIN, THE TRIB UNAL HAS FOLLOWED THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CAS E OF DIT VS. LG CABLES LTD. AND ALSO THE DECISION OF THE HONBLE DELHI HIGH COU RT IN THE CASE OF LS CABLES LTD. AND THE APPEAL OF THE ASSESEE WAS ALLOWED WH EREIN IT WAS HELD THAT NO PART OF INCOME OF THE ASSESSEE WAS ASSESSABLE IN I NDIA AND RELIEF WAS GRANTED TO THE ASSESSEE. EXACTLY ON COMMON AND SIMILAR FAC TS AND CIRCUMSTANCES IN ASSESSMENT YEAR 2009-10, LD. COUNSEL FOR THE ASSESS EE REQUESTED THAT ISSUE IN DISPUTE IS SQUARELY COVERED IN FAVOUR OF THE ASSESS EE BY THE DECISION PASSED IN ASSESSEES OWN CASE IN ASSESSMENT YEAR 2009-10. THE REFORE, RESPECTFULLY FOLLOWING THE SAME, THE EXPARTE ORDER DATED 01.7.20 16 MAY BE RECALLED AND 3 THEREAFTER RESPECTFULLY FOLLOWING THE ORDER IN TH E CASE OF THE ASSESSEE FOR THE AY 2009-10 BY THE TRIBUNAL WHICH HAS BEEN UPHELD BY THE HONBLE DELHI HIGH COURT MAY BE FOLLOWED AND ISSUE IN DISPUTE MAY BE D ECIDED IN FAVOUR OF THE ASSESSEE BY ALLOWING THE MAIN APPEAL OF THE ASSESSE E. HE HAS ALSO FILED THE COPY OF THE ORDERS OF THE TRIBUNAL AND THE HONBLE DELHI HIGH COURT IN THE SHAPE OF PAPER BOOK CONTAINING PAGES 1-45 IN WHICH HE HAS ALSO ATTACHED OTHER SIMILAR DECISIONS WHICH HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY FOLLOWING THE DECISIONS OF THE HONBLE DELHI HIGH COURT AND T HE HONBLE SUPREME COURT OF INDIA. 3. LD. DR STATED THAT THE BENCH HAS DECIDED THE ISS UE IN DISPUTE AGAINST THE ASSESSEE AND THERE IS NO MISTAKE APPARENT FROM RECO RD AND THEREFORE, THE MISC. APPLICATION FILED BY THE ASSESSEE MAY BE DISM ISSED ACCORDINGLY. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES ALONGWITH THE AFFIDAVIT OF XUDONG XIA, S/O SH. SHUNDE, R/O 181, LANE 3333, JINHAI ROAD, PUDONG NEW DISTRICT, SHANGH AI, CHINA AND PROVISIONS OF SECTION 254(2) OF THE INCOME TAX ACT, 1961 READ WITH RULE 24 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963 AS WELL AS THE ORDER PASSED BY THIS BENCH DATED 01.7.2016 AND THE ORDER OF THE TRIBUNAL DATED 22.2.2013 PASSED IN ITA NO. 6175/DEL/2012 (AY 2009-10) IN ASSESSEES OWN CA SE. WE ARE OF THE VIEW THAT KEEPING IN VIEW THE RULE 24 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963, IF THE ASSESSEE ON THE DATE OF HEARING DOES NOT APPEAR IN PERSON OR THROUGH THE AUTHORISED REPRESENTATIVE, WHEN THE AP PEAL IS CALLED FOR HEARING, THE TRIBUNAL MAY DISPOSE OF THE APPEAL ON MERITS, AFTER HEARING THE RESPONDENT. BUT IF THE ASSESSEE SATISFY THE TRIBUNA L THAT THERE IS SUFFICIENT CAUSE FOR NON-APPEARANCE, THE APPEAL WAS CALLED FO R HEARING, THEN THE TRIBUNAL MAY SET ASIDE THE EXPARTE ORDER AND RESTO RE THE APPEAL. AS EXPLAINED 4 BY THE LD. COUNSEL FOR THE ASSESSEE, WE ARE OF THE CONSIDERED VIEW THAT ASSESSEE HAS ESTABLISHED NON-APPEARANCE BEFORE THE TRIBUNAL. THEREFORE, IN THE INTEREST OF JUSTICE AND AS ARGUED BY THE LD. CO UNSEL FOR THE ASSESSEE THAT SIMILAR ISSUE HAS ALREADY BEEN ADJUDICATED AND DECI DED IN FAVOUR OF THE ASSESSEE BY THE ITAT WHICH HAS BEEN UPHELD BY THE H ONBLE HIGH COURT, HENCE, WE ARE RECALLING THE TRIBUNALS ORDER DATED 01.07.2 016 BY ALLOWING THIS MISC. APPLICATION AND THE ORDER IN THE MAIN APPEAL WILL BE PASSED SEPARATELY. 5. IN THE RESULT, THE MISC. APPLICATION FILED BY TH E ASSESSEE STANDS ALLOWED IN THE AFORESAID MANNER. ORDER PRONOUNCED ON 10.02.2020. SD/- SD/- [PRASHANT MAHARISHI] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER SRB DATE: 10.02.2020 COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES