M/s Granada Services (P) Ltd., New Delhi v. DCIT, New Delhi

CO 385/DEL/2010 | 2007-2008
Pronouncement Date: 30-03-2012 | Result: Partly Allowed

Appeal Details

RSA Number 38520123 RSA 2010
Bench Delhi
Appeal Number CO 385/DEL/2010
Duration Of Justice 1 year(s) 3 month(s) 29 day(s)
Appellant M/s Granada Services (P) Ltd., New Delhi
Respondent DCIT, New Delhi
Appeal Type Cross Objection
Pronouncement Date 30-03-2012
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted C
Tribunal Order Date 30-03-2012
Date Of Final Hearing 20-03-2012
Next Hearing Date 20-03-2012
Assessment Year 2007-2008
Appeal Filed On 01-12-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH C DELHI) BEFORE SHRI G.D. AGRAWAL HONBLE VICE PRESIDENT AND SHRI A.D. JAIN JUDICIAL MEMBER ITA NO. 2866(DEL)2010 ASSESSMENT YEAR: 2007-08 DY. COMMISSIONER OF INCOME TAX M/S. GRANADA S ERVICES(P)LTD. CIRCLE 12(1) NEW DELHI. V. B-14 MA LCHA MARG CHANAKYA PURI NEW DEL HI. C.O. NO. 385(DEL)2010 (IN ITA NO. 2866(DEL)2010) ASSESSMENT YEAR: 2007-08 M/S. GRANADA SERVICES (P)LTD. DY.COMMIS SIONER OF INCOME TAX MALCHA MARG CHANAKYA PURI V. CIRCLE 12(1 ) NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) DEPARTMENT BY: SHRI V.K. SAKSENA CIT/DR ASSESSEE BY: SHR I AMIT GOEL CA ORDER PER A.D. JAIN J.M. THESE ARE DEPARTMENTS APPEAL AND THE ASSESSEES C ROSS OBJECTIONS FOR THE ASSESSMENT YEAR 2007-08. THE DEPARTMENT H AS TAKEN THE FOLLOWING GROUNDS OF APPEAL:- ITA 2866 & CO 385(DEL)2010 2 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE ORDER OF THE CIT(A) IS WRONG PERVERSE ILLEGAL AND AGAI NST THE PROVISIONS OF LAW WHICH IS LIABLE TO BE SET ASIDE. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) HAS ERRED IN UPHOLDING THE PLEA OF THE ASSESSEE THA T EXPENSES AMOUNTING TO ` 3 53 10 638/- INCURRED IN FOREIGN CURRENCY SHALL BE REDUCED FROM THE TOTAL TURN OVER WHILE CALCULATING DEDUCTION U/S 10A OF THE ACT WITHOUT GOING INTO THE LEGISLATIVE INTEN T OF THE SECTION WHICH CLEARLY STATES THAT ACTUALLY THOSE ITEMS EXPRESSLY MENTIONED SHALL BE EXCLUDED AND NO OTHER ITEMS SHALL BE EXCLUDED FROM THE TOTAL TURN OVER. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) HAS ERRED IN UPHOLDING THE PLEA OF THE ASSESSEE TH AT EXPENSES BY WAY OF INSURANCE EXPENSES OF ` 17 48 148/- AND COMMUNICATION EXPENSES OF ` 12 82 709/- COULD NOT HAVE BEEN REDUCED FROM EXPORT TURN OVER BY THE AO FOR DETERMINING DEDUCTION U/S 10A. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) HAS ERRED IN DIRECTING THE AO TO EXAMINE THE CONTEN TION OF THE ASSESSEE TO REDUCE THE MISCELLANEOUS INCOME OF ` 18 53 010/- FROM EXPORT TURN OVER WHICH IS NOT WITHIN ITS AMBIT TO R EMAND BACK. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) HAS ERRED IN DIRECTING THE AO TO EXAMINE THE CONTEN TION OF THE ASSESSEE TO COMPUTE THE DEDUCTION U/S 10A AFTER INC REASING THE PROFIT BY ADDING FINANCIAL EXPENSES OF ` 84 13 501/- WHICH IS NOT WITHIN ITS AMBIT TO REMAND BACK. 2. THE CROSS OBJECTIONS RAISED BY THE ASSESSEE ARE AS FOLLOWS:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) ERRED IN CONFIRMING THE ACTION OF THE AO OF EXCLUSION OF VARIOUS EXPENSES AMOUNTING TO ` 3 53 10 638/- FROM EXPORT TURN OVER. THE CIT(A) SHOULD HAVE HELD THAT THESE EXPENSES AMO UNTING TO ` ITA 2866 & CO 385(DEL)2010 3 3 53 10 638/- IN THE FIRST PLACE SHOULD NOT HAVE BEEN EXCLUDED FROM THE EXPORT TURN OVER. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) ERRED IN NOT HOLDING THAT AMOUNT OF ` 18 53 010/- WAS TO BE EXCLUDED FROM TOTAL TURN OVER AND INSTEAD SETTING ASIDE THE MATTER TO THE AO. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) ERRED IN NOT HOLDING THAT PROFIT OF BUSINESS WAS TO BE INCREASED BY INTEREST DISALLOWANCE OF ` 84 13 501/- AND INSTEAD SETTING ASIDE THE MATTER TO THE AO. 3. GROUND NO.1 IN THE DEPARTMENTS APPEAL IS GENERA L. 4. SO FAR AS REGARDS GROUND NO.2 THE MATTER IT IS SEEN IS COVERED IN FAVOUR OF THE ASSESSEE BY THE TRIBUNAL ORDER DATED 30.6.2009 PASSED IN ITA NO. 462(DEL)2009 AND CROSS OBJECTION NO. 40(DEL)200 9 IN THE ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2005-06. BEFORE US THIS POSITION COULD NOT BE CONTROVERTED BY THE DEPARTMENT. THE LD. CIT(A) HAS CORRECTLY DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY FOLLOWING TH E SAID TRIBUNAL ORDER. 5. THE CORRESPONDING CROSS OBJECTION NO. 1 IS ACCEP TED. 6. COMING TO GROUND NO.3 THIS MATTER WAS REMITTED BY THE ITAT TO THE AO FOR THE ASSESSMENT YEAR 2005-06 (SUPRA) FOR DE CISION AFRESH. THE FACTS REMAINING THE SAME FOR THE YEAR UNDER CONSIDERATION ALSO THIS MATTER IS REMITTED TO THE FILE OF THE AO TO BE DECIDED AFRES H IN ACCORDANCE WITH LAW ON AFFORDING DUE AND ADEQUATE OPPORTUNITY OF HEARIN G TO THE ASSESSEE. THE LD. CIT(A) HAS OBSERVED THAT THE EXPENSES WERE NOT RELATABLE TO DELIVERY ITA 2866 & CO 385(DEL)2010 4 OUTSIDE INDIA BUT AS PER THE LD. DR THESE DETAILS WERE NOT FILED. THE LEARNED COUNSEL FOR THE ASSESSEE HAS STATED AT THE BAR THAT ALTHOUGH ALL THESE DETAILS WERE DULY FILED THE ASSESSEE WOULD AGAIN A SSIST THE LD. CIT(A) IN ARRIVING AT A JUST AND PROPER CONCLUSION ON THE MAT TER BY PROVIDING FULL DETAILS ONCE AGAIN. 7. APROPOS GROUNDS NOS. 4&5 RAISED BY THE DEPARTMEN T AND THE CORRESPONDING CROSS OBJECTION NOS. 2&3 TAKEN BY TH E ASSESSEE THE CONTENTION OF THE DEPARTMENT IS THAT THE LD. CIT(A) HAS ERRED IN ORDERING THE PARTIAL SET ASIDE OF THE MATTER TO THE AO AND THAT IN VIEW OF THE PROVISIONS OF SECTION 251(1)(A) OF THE I.T. ACT THERE IS NO SUCH POWER OF PARTIAL SET ASIDE WITH THE CIT(A) WITH EFFECT FROM 1.6.2001. IN THIS REGARD IT IS SEEN THAT THE LD. CIT(A) HAS REMITTED THE MATTER TO THE AO ONLY F OR VERIFICATION. AS SUCH THERE IS NO PARTIAL REMAND OR PARTIAL SET ASIDE BY THE CIT(A). ACCORDINGLY GROUND NOS. 4&5 RAISED BY THE DEPARTMENT ARE REJECT ED. THE CORRESPONDING CROSS OBJECTION NOS. 2&3 ARE ALSO REJ ECTED. 8. IN THE RESULT BOTH THE DEPARTMENTS APPEAL AS WELL AS THE ASSESSEES CROSS OBJECTIONS ARE PARTLY ALLOWED AS INDICATED. ORDER PRONOUNCED IN THE OPEN COURT ON 30.03.2012. SD/- SD/- (G.D. AGRAWAL) (A.D. JAIN) ITA 2866 & CO 385(DEL)2010 5 VICE PRESIDENT JUDICIAL MEMBER DATED: 30.03.2012. *RM COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR TRUE COPY BY ORDER ASSISTANT REGISTRAR