Huawei Telecommunication (India) Company Pvt. Ltd., Gurgaon v. ACIT, Gurgaon

ITA 49/DEL/2011 | 2006-2007
Pronouncement Date: 15-03-2011 | Result: Allowed

Appeal Details

RSA Number 4920114 RSA 2011
Assessee PAN AABCH1376E
Bench Delhi
Appeal Number ITA 49/DEL/2011
Duration Of Justice 2 month(s) 10 day(s)
Appellant Huawei Telecommunication (India) Company Pvt. Ltd., Gurgaon
Respondent ACIT, Gurgaon
Appeal Type Income Tax Appeal
Pronouncement Date 15-03-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 15-03-2011
Date Of Final Hearing 15-03-2011
Next Hearing Date 15-03-2011
Assessment Year 2006-2007
Appeal Filed On 05-01-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL NEW DELHI BENCH C NEW DELHI BENCH C NEW DELHI BENCH C NEW DELHI BENCH C BEFORE SHRI I. P. BANSAL JUDICIAL MEMBER AND SHRI A K GARODIA ACCOUTANT MEMBER ITA NO.49 /DEL/2011 (ASSESSMENT YEAR 2006-07) HUAWEI TELECOMMUNICATIONS (INDIA) VS. ACIT CIRCLE 1(1) COMPANY PRIVATE LIMITED GURGAON 14 TH FLOOR TOWER C UNITECH CYBER PARK SECTOR 39 GURGAON HARYANA (APPELLANTS) (RESPONDENTS) PAN / GIR NO. AABCH1376E APPELLANT BY: SHRI TARUN ARORA AR RESPONDENT BY: SHRI A. D. MEHROTRA CIT DR & SHRI NARENDER K. CHAND SR. DR ORDER ORDER ORDER ORDER PER A. K. GARODIA AM: PER A. K. GARODIA AM: PER A. K. GARODIA AM: PER A. K. GARODIA AM: 1. THIS IS ASSESSEES APPEAL WHICH IS DIRECTED AGA INST THE ASSESSMENT ORDER PASSED BY THE A.O. ON 18.11.2010 U /S 144C/143(3) OF THE I. T. ACT 1961 AS PER THE DIREC TIONS GIVEN BY D RP U/S 144C(V) OF THE I. T. ACT AS PER THE ORDER DA TED 30.09.2010 FOR THE ASSESSMENT YEAR 2006-07. 2. THE GROUND NO.1 OF APPEAL RAISED BY THE ASSESSEE READS AS UNDER: THAT THE ASSESSMENT ORDER PASSED IN PURSUANCE TO T HE DIRECTIONS ISSUED BY THE LD. DISPUTE RESOLUTION PAN EL (LD. DRP) IS A VITIATED ORDER AS THE LD. DRP ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE ADDITION MADE BY THE L D. A.O. TO THE APPELLANTS INCOME BY ISSUING A NON-SPEAKING OR DER WITHOUT APPROPRIATE APPLICATION OF MIND. 3. AS PER THE GROUND THE GRIEVANCE OF THE ASSESSEE IS THAT THE ORDER PASSED BY DRP IS NOT PROPER BECAUSE THE SAME IS A NON SPEAKING ORDER WITHOUT APPROPRIATE APPLICATION OF M IND. WHEN WE I.T.A. NO. 49/DEL/2011 2 EXAMINED THE ORDER OF DRP WE FIND THAT THE GRIEVAN CE OF THE ASSESSEE IS CORRECT BECAUSE THIS IS A ONE LINE ORDE R WHICH READS AS THE A.O. IS DIRECTED TO COMPLETE THE ASSESSMENT AS PROPOSED IN THE DRAFT ASSESSMENT ORDER. BEFORE GIVING THIS ONE LI NE DIRECTION IT IS STATED BY THE DRP THAT THEY HAVE GONE THROUGH THE D RAFT ASSESSMENT ORDER AND THEY HAVE HEARD THE AR AND HAV E CONSIDERED THE OBJECTIONS OF THE ASSESSEE CAREFULLY AND AFTER CONSIDERING THE SAME THEY ARE OF THE OPINION THAT THE DRAFT ASSESS MENT ORDER PROPOSED BY THE A.O. IS TO BE APPROVED. WE FIND TH AT EVEN THIS IS NOT RECORDED BY DRP AS TO WHAT ARE THE OBJECTIONS O F THE ASSESSEE AND WHAT WERE THE ARGUMENTS OF THE LD. A.R. AND THE Y HAVE SIMPLY DIRECTED THE A.O. TO COMPLETE THE ASSESSMENT AS PRO POSED IN THE DRAFT ASSESSMENT ORDER. UNDER THESE FACTS THIS OR DER OF DRP IS NOT PROPER. THE HONBLE JURISDICTIONAL HIGH COURT IN T HE CASE OF VODAPHONE ESSAR LTD. VS DRP-II IN W.P. (CIVIL) NO.7 028/2010 HELD AS UNDER: JUDGEMENT JUDGEMENT JUDGEMENT JUDGEMENT HEARD MR. SYALI LD. SR. COUNSEL FOR THE PETITIONER AND MR. SANJEEV SABHARWAL LD. STANDING COUNSEL FOR THE REV ENUE. BY THIS WRIT PETITION THE PETITIONER HAS PRAYED FO R ISSUE OF A WRIT OF CERTIORARI FOR QUASHMENT OF THE ORDER DAT ED 30 TH SEPTEMBER 2010 PASSED BY THE DISPUTE RESOLUTION PA NEL- II THE FIRST RESPONDENT HEREIN. WHAT COULD HAVE B EEN A MATTER OF DEBATE WAS PUT TO REST BY MR. SANJEEV SABHARWAL LD. COUNSEL FOR THE REVENUE BY STATING T HAT THE ORDER PASSED ON 30 TH SEPTEMBER 2010 CONTAINED IN ANNEXURE-P1 DESERVES TO BE QUASHED AND THE MATTER BE REMANDED TO THE SAID AUTHORITY FOR FRESH ADJUDICATI ON. IN VIEW OF THE AFORESAID FAIR CONCESSION THE ORDER DATED 30 TH SEPTEMBER 2010 PASSED BY THE RESPONDENT NO. 1 IS QUASHED AND THE MATER IS REMANDED TO THE SAID RESPONDENT TO ADJUDICATE AFRESH. BE IT NOTED WHEN A QUASI JUDICIAL AUTHORITY DEALS WITH A LIST IT IS O BLIGATORY ON ITS PART TO ASCRIBE COGENT AND GERMANE REASONS AS T HE SAME IS THE HEARD AND SOUL OF THE MATTER AND FURTHE R THE SAME ALSO FACILITATES APPRECIATION WHEN THE ORDER I S CALLED IN QUESTION BEFORE THE SUPERIOR FORUM. NEED LES TO I.T.A. NO. 49/DEL/2011 3 SAY THAT THE COMPETENT AUTHORITY WHILE PASSING THE ORDER SHALL KEEP IN MIND THE ORDER DATED 29 TH NOVEMBER 2010 WHEREIN WE HAD DIRECTED THAT THE PERIOD FROM T HE DATE OF FILING THE WRITE PETITION AND FOUR WEEKS AF TER ITS DISPOSAL SHALL STAND EXCLUDED WHILE COMPUTING THE LIMITATION FOR THE DEPARTMENT TO PASS AN ASSESSMENT ORDER. THE WRIT PETITION IS ALLOWED TO THE EXTENT INDICATE D ABOVE WITHOUT ANY ORDER AS TO COSTS. ORDER DASTI UNDER THE SIGNATURES OF THE COURT MASTE R. [WPO (C) 7028/2010] 4. IN THE PRESENT CASE ALSO NO REASONING HAS BEEN GIVEN BY DRP AND HENCE THE ASSESSMENT ORDER ON THE BASIS OF THE SE NON- SPEAKING AND UNREASONED DIRECTIONS OF DRP CANNOT BE SUSTAINED. WHEN THIS WAS CONFRONTED TO BOTH THE SIDES I.E. LD. A.R. AND LD. D.R. NONE OF THEM COULD POINT OUT ANY REASON AS TO WHY T HE ENTIRE ISSUE SHOULD NOT BE RESTORED BACK TO THE FILE OF THE A.O. FOR A FRESH DECISION AFTER OBTAINING FRESH DIRECTIONS FROM DRP AND HENCE BY RESPECTFULLY FOLLOWING THE JUDGMENT OF HON'BLE HIGH COURT OF DELHI RENDERED IN THE CASE OF VODAPHONE ESSAR LTD. (SUPRA ) WE SET ASIDE THE ORDER OF THE A.O. AND RESTORE THE ENTIRE MATTER BACK TO HIS FILE FOR A FRESH DECISION AFTER OBTAINING FRESH DIRECTIO NS FORM DRP. WHILE GIVING FRESH DIRECTIONS DRP SHOULD KEEP IN MIND TH E JUDGMENT OF HON'BLE HIGH COURT OF DELHI RENDERED IN THE CASE OF VODAPHONE ESSAR LTD. (SUPRA) AND SUCH ORDER OF DRP SHOULD BE A SPEAKING AND REASONED ORDER. THIS GROUND OF ASSESSEES APPEALS IS ALLOWED FOR STATISTICAL PURPOSES. 5. IN VIEW OF OUR DECISION WITH REGARD TO GROUND NO .1 OF THE ASSESSEES APPEAL OTHER GROUNDS RAISED BY THE ASSE SSEE DO NOT CALL FOR ANY ADJUDICATION AT THIS STAGE BECAUSE WE HAVE RESTORED BACK THE ENTIRE MATTER TO THE FILE OF THE A.O. FOR A FRE SH DECISION AFTER OBTAINING FRESH DIRECTIONS FROM DRP AND HENCE ON T HESE OBJECTIONS ALSO FRESH DECISION SHOULD BE TAKEN BY THE A.O. AN D DRP AFTER I.T.A. NO. 49/DEL/2011 4 PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE. BUT AT THIS STAGE NO ADJUDICATION IS CALLED FOR FROM O UR SIDE ON THESE ISSUES. 6. IN THE RESULT APPEAL OF THE ASSESSEE STANDS ALL OWED FOR STATISTICAL PURPOSES. 7. ORDER PRONOUNCED IN THE OPEN COURT ON THE CLOSE OF HEARING ON 15 TH MARCH 2011. SD./- SD./- ( I. P. BANSAL) (A K GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED:15 TH MAR. 2011 SP. COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT TRUE COPY: BY ORDER 4. CIT(A) 5. DR DY. REGISTRAR ITAT NEW DELHI