DCIT, New Delhi v. M/s. Sistema Shyam Teleservices Ltd., New Delhi

ITA 5890/DEL/2016 | 2011-2012
Pronouncement Date: 28-02-2020 | Result: Partly Allowed

Appeal Details

RSA Number 589020114 RSA 2016
Assessee PAN AACCS1709H
Bench Delhi
Appeal Number ITA 5890/DEL/2016
Duration Of Justice 3 year(s) 3 month(s) 10 day(s)
Appellant DCIT, New Delhi
Respondent M/s. Sistema Shyam Teleservices Ltd., New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 28-02-2020
Appeal Filed By Department
Order Result Partly Allowed
Bench Allotted G
Tribunal Order Date 28-02-2020
Last Hearing Date 25-02-2020
First Hearing Date 25-02-2020
Assessment Year 2011-2012
Appeal Filed On 17-11-2016
Judgment Text
ITA NO.-5890/DEL/2016. M/S SISTEMA SHYAM TELESERVICES LTD. PAGE 1 OF 24 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: G: NEW DELHI) BEFORE SHRI AMIT SHUKLA JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA ACCOUNTANT MEMBER ITA NO:- 5890/DEL/2016 ( ASSESSMENT YEAR: 2011-12) DCIT CIRCLE-24(2) ROOM NO. 248 2 ND FLOOR C.R. BUILDING NEW DELHI. VS. M/S SISTEMA SHYAM TELESERVICES LTD. A-60 NARAINA INDL. AREA PHASE-I NEW DELHI-110028. PAN NO: AACCS1709H APPELLANT RESPONDENT REVENUE BY : SHRI SARAS KUMAR SR. DR ASSESSEE BY : SHRI ALOK VASANT C.A. PER ANADEE NATH MISSHRA AM (A) THIS APPEAL BY REVENUE IS FILED AGAINST THE IMPUGN ED APPELLATE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-17 NEW DELHI [LD. CIT(A) FOR SHORT] DATED 01.09.2016 FOR ASSESSMENT YEAR 2011-12. GROUNDS TA KEN IN THIS APPEAL OF REVENUE ARE AS UNDER: 1. WHETHER THE REVENUE RECOGNITION IN RESPECT OF U NUTILIZED TALK OF PREPAID CARDS REALIZED AND AVAILABLE WITHOUT ENCUMBRANCE CAN BE POSTPONED TO THE PERIOD WHEN SAME WOULD BE RENDERED. ITA NO.-5890/DEL/2016. M/S SISTEMA SHYAM TELESERVICES LTD. PAGE 2 OF 24 2. WHETHER THE INCOME DID NOT ACCRUE TO THE RESPOND ENT U/S 2(24) OF THE ACT QUA THE PREPAID CARDS DURING THE RELEVANT YEAR WHEN IT RECEIVED THE ADVANCE CHARGES FROM SUBSCRIBER THROUGH THE APPOINTED DEALE RS. 3. THE APPELLANT CRAVES TO AMEND MODIFY ALTER ADD OR FOREGO ANY GROUND OF APPEAL AT ANY TIME BEFORE OR DURING THE HEARING OF THIS APPEAL. (B) THE ASSESSING OFFICER (AO FOR SHORT) IN ASSESSM ENT ORDER DATED 27.03.2015 PASSED UNDER SECTION 143(3) READ WITH SE CTION 144C OF THE INCOME TAX ACT 1961 (I.T. ACT FOR SHORT) MADE AN ADDI TION OF RS. 64 50 92 443/-. THIS AMOUNT WAS SHOWN BY THE ASSESSEE IN BOOKS OF ACCOUN T AS UNACCRUED REVENUE ON ACCOUNT OF SALE OF PREPAID PAPER RCV ELECTRONIC R CV; WHICH HOWEVER WAS TREATED BY THE AO AS INCOME OF THE ASSESSEE ON THE GROUND THAT ASSESSEE WAS MAINTAINING MERCANTILE SYSTEM OF ACCOUNTING. THE R ELEVANT PORTION OF THE ASSESSMENT ORDER IS REPRODUCED AS UNDER: ITA NO.-5890/DEL/2016. M/S SISTEMA SHYAM TELESERVICES LTD. PAGE 3 OF 24 (B.1) THE LD. CIT(A) VIDE HIS IMPUGNED APPELLATE ORDER DATED 01.09.2016 DELETED THE AFORESAID ADDITION AMOUNTING TO RS. 64 50 92 443/-; FOLLOWING THE ORDER OF INCOME TAX APPELLATE TRIBUNAL (ITAT FOR SHORT) IN ASSESSEES OWN CASE IN EARLIER YEARS IN IDENTICAL FACTS AND CIRCUMSTANC ES. THE RELEVANT PORTION OF THE ORDER OF THE LD. CIT(A) IS REPRODUCED AS UNDER: 2. THERE IS ONLY ONE ISSUE INVOLVED IN ALL THE GRO UNDS OF APPEAL WHICH RELATES TO ADDITION OF RS.64 50 92 443/- MADE BY THE AO TOWARD S UNACCRUED REVENUE ON ACCOUNT OF SALE OF PREPAID PAPER RGV ELECTRONIC R CV ETC. ON THE GROUND THAT THE APPELLANT WAS FOLLOWING MERCANTILE SYSTEM OF AC COUNTING THEREFORE THE INCOME ACCRUED DURING THE YEAR WAS ASSESSED TO TAX. HOWEVER THE AO HIMSELF HAS MENTIONED IN THE ASSESSMENT ORDER THAT THE HON BLE ITAT HAD DECIDED THIS ISSUE IN FAVOUR OF THE APPELLANT IN THE EARLIER YEA R; AND SINCE THE DEPARTMENT HAS CONTESTED ORDER OF THE ITAT BEFORE THE HONBLE DELHI HIGH COURT THEREFORE THE ADDITION WAS MADE. THE APPELLANT FUR NISHED THE COPY OF THE ITAT' ORDER BY WHICH THE MATTER WAS DECIDED IN FAVO UR OF THE APPELLANT. ON PERUSAL OF THE SAME I FIND THAT SINCE ON IDENTICAL FACTS IN THE APPELLANT'S OWN CASE APPEAL WAS DECIDED BY THE ITAT IN FAVOUR OF T HE APPELLANT THEREFORE THE ORDER OF THE ITAT IS FOLLOWED. (B.2) DURING APPELLATE PROCEEDINGS IN ITAT THE COPIES O F THE FOLLOWING ORDERS WERE FILED FROM THE ASSESSEES SIDE: (I) CONSOLIDATED ORDER DATED 15.11.2018 OF HONBLE DELH I HIGH COURT IN ASSESSEES OWN CASE IN ITA NUMBERS 70/2013 (CIT VS. SHYAM TELELINK LTD.) 73/2013 (CIT VS. SHYAM TELELINK LTD.) AND 1069/2017 (PR. CIT VS. SISTEMA SHYAM TELESERVICES LTD.) (II) SUPREME COURTS ORDER SPECIAL LEAVE PETITION (CI VIL) DAIRY NO(S). 18936/2019 IN ASSESSEES OWN CASE [PR. CIT VS. SIST ENA SHYAM TELESERVICES LTD. DIGITALLY SIGNED DATED 18.07.2019] ITA NO.-5890/DEL/2016. M/S SISTEMA SHYAM TELESERVICES LTD. PAGE 4 OF 24 (III) ASSESSMENT ORDER DATED 30.03.2016 FOR AY 2012-13 I N ASSESSEES OWN CASE PASSED U/S 143(3) OF INCOME TAX ACT BY TH E ASSESSING OFFICER. (C) AT THE TIME OF HEARING BEFORE US THE LD. AUTHORIZ ED REPRESENTATIVE (AR FOR SHORT) OF THE ASSESSEE BROUGHT TO OUR NOTICE AT THE OUTSET THAT THE ORDER OF HONBLE DELHI HIGH COURT IN THE CASE OF THE ASSESSEE FOR EA RLIER YEARS IN IDENTICAL FACTS AND CIRCUMSTANCES HAS ALREADY BEEN PASSED ON THE IDENTI CAL ISSUE IN DISPUTE VIDE ORDER DATED 15.11.2018 IN ITA NOS.70/2013 (CIT VS. SHYAM TELELINK LTD.) 73/2013 (CIT VS. SHYAM TELELINK LTD.) AND 1069/2017 (PR. CIT VS. SISTEMA SHYAM TELESERVICES LTD.). [THIS ORDER IS ALREADY REFERRED TO IN FOREGO ING PARAGRAPH (B.2)(I) OF THIS ORDER.] HE FURTHER SUBMITTED THAT THE SPECIAL LEAVE PETITION OF REVENUE AGAINST THE AFORESAID ORDER DATED 15.11.2018 OF HONBLE DELHI H IGH COURT HAS ALREADY BEEN DISMISSED BY HONBLE SUPREME COURT VIDE SPECIAL LEA VE PETITION (CIVIL) DIARY NO (S). 18936/2019. [THIS ORDER OF HONBLE SUPREME COURT HA S ALREADY BEEN REFERRED TO IN FOREGOING PARAGRAPH (B.2)(II) OF THIS ORDER]. IN VIEW OF THESE ORDERS OF HONBL E DELHI HIGH COURT AND HONBLE SUPREME COURT RESPECTI VELY HE CONTENDED; THE IDENTICAL ISSUE IN DISPUTE FOR EARLIER YEARS HAS AL READY ATTAINED FINALITY IN ASSESSEES OWN CASE. HE SUBMITTED THAT THE AFORESAID ORDER OF HONBLE DELHI HIGH COURT DATED 15.11.2018 MAY BE FOLLOWED FOR DECIDING THE ISSUE I N DISPUTE IN THE PRESENT APPEAL IN ITAT; FACTS AND CIRCUMSTANCES BEING IDENTICAL AND THE ISSUE IN DISPUTE BEING IDENTICAL TOO; AND THUS SQUARELY COVERED BY THE AFORESAID ORD ER DATED 15.11.2018 OF HONBLE DELHI HIGH COURT IN ASSESSEES OWN CASE. THE LD. A R OF THE ASSESSEE ALSO DREW OUR ATTENTION TO ASSESSMENT ORDER DATED 30.03.2016 [ALR EADY REFERRED TO IN FOREGOING ITA NO.-5890/DEL/2016. M/S SISTEMA SHYAM TELESERVICES LTD. PAGE 5 OF 24 PARAGRAPH (B.2)(III) OF THIS ORDER] IN THE CASE OF THE ASSESSEE PASSED UNDER SECTION 143(3) OF THE I.T. ACT WHEREIN THE AFORESAID AMOUN T OF RS. 64 50 92 443/- HAS ALREADY BEEN TAXED AS THE ASSESSEES INCOME FOR ASS ESSMENT YEAR 2012-13; AND SUBMITTED THAT THIS AMOUNT SHOULD NOT BE TAXED IN T HIS YEAR (ASSESSMENT YEAR 2011- 12) IN VIEW OF THE AFORESAID ORDER DATED 15.11.2018 OF HONBLE DELHI HIGH COURT. THE LD. SENIOR DEPARTMENTAL REPRESENTATIVE (SR. DR O F SHORT) FOR REVENUE AGREED THAT THE ISSUE IN DISPUTE IS SQUARELY COVERED BY IDENTIC AL ISSUE DECIDED BY HONBLE DELHI HIGH COURT IN ASSESSEES OWN CASE IN IDENTICAL FACT S AND CIRCUMSTANCES VIDE AFORESAID ORDER DATED 15.11.2018 OF HONBLE DELHI HIGH COURT. IN VIEW OF THE FOREGOING AND AS NEITHER SIDE HAS BROUGHT ANY MATERIALS TO OUR NO TICE OR FOR OUR CONSIDERATION TO DISTINGUISH EITHER THE FACTS AND CIRCUMSTANCES OF T HIS YEAR OR ISSUE IN DISPUTE IN THIS YEAR FROM THESE PERTAINING TO AFORESAID ORDER DATE D 15.11.2018 OF HONBLE DELHI HIGH COURT IN ASSESSEES OWN CASE; WE CONCLUDE THAT THE FACTS AND CIRCUMSTANCES AS WELL AS THE ISSUE IN DISPUTE ARE IDENTICAL AND FURT HER THAT THE ISSUE IN DISPUTE IN THE PRESENT APPEAL IS SQUARELY COVERED BY THE AFORESAID ORDER DATED 15.11.2018 OF HONBLE DELHI HIGH COURT. ON PERUSAL OF THE AFORES AID ORDER DATED 15.11.2018 OF HONBLE DELHI HIGH COURT IT IS FOUND AT PARAGRAPHS 19 AND 20 OF THE ORDER THAT THE ASSESSEE HAS ACCEPTED THAT UNUTILIZED AMOUNT WHEN THE PREPAID CARDS LAPSE HAS TO BE TREATED AS INCOME OR RECEIPT OF THE ASSESSEE ON THE DATE WHEN THE CARDS HAD LAPSED. HONBLE DELHI HIGH COURT HAS SPECIFICALLY GIVEN CLARIFICATION IN PARAGRAPH 20 OF THE AFORESAID ORDER DATED 15.11.2018 IN THESE W ORDS: WE WOULD CLARIFY THAT THE ASSESSING OFFICER WHILE PASSING THE APPEAL EFFECT O RDER WOULD ENSURE THAT THE UNUTILIZED TALK TIME HAS BEEN ACCOUNTED FOR AND INC LUDED IN THE RECEIPT OF THE YEAR IN ITA NO.-5890/DEL/2016. M/S SISTEMA SHYAM TELESERVICES LTD. PAGE 6 OF 24 WHICH THE AMOUNT HAD LAPSED AND WAS FORGONE THE RELEVANT PORTION OF THE AFORESAID ORDER DATED 15.11.2018 OF HONBLE DELHI H IGH COURT INCLUDING THE AFORESAID PARAGRAPHS 19 AND 20 IS REPRODUCED BELOW FOR EASE OF REFERENCE AND FOR GUIDANCE: ITA NO.-5890/DEL/2016. M/S SISTEMA SHYAM TELESERVICES LTD. PAGE 7 OF 24 ITA NO.-5890/DEL/2016. M/S SISTEMA SHYAM TELESERVICES LTD. PAGE 8 OF 24 ITA NO.-5890/DEL/2016. M/S SISTEMA SHYAM TELESERVICES LTD. PAGE 9 OF 24 ITA NO.-5890/DEL/2016. M/S SISTEMA SHYAM TELESERVICES LTD. PAGE 10 OF 24 ITA NO.-5890/DEL/2016. M/S SISTEMA SHYAM TELESERVICES LTD. PAGE 11 OF 24 ITA NO.-5890/DEL/2016. M/S SISTEMA SHYAM TELESERVICES LTD. PAGE 12 OF 24 ITA NO.-5890/DEL/2016. M/S SISTEMA SHYAM TELESERVICES LTD. PAGE 13 OF 24 ITA NO.-5890/DEL/2016. M/S SISTEMA SHYAM TELESERVICES LTD. PAGE 14 OF 24 ITA NO.-5890/DEL/2016. M/S SISTEMA SHYAM TELESERVICES LTD. PAGE 15 OF 24 ITA NO.-5890/DEL/2016. M/S SISTEMA SHYAM TELESERVICES LTD. PAGE 16 OF 24 ITA NO.-5890/DEL/2016. M/S SISTEMA SHYAM TELESERVICES LTD. PAGE 17 OF 24 ITA NO.-5890/DEL/2016. M/S SISTEMA SHYAM TELESERVICES LTD. PAGE 18 OF 24 ITA NO.-5890/DEL/2016. M/S SISTEMA SHYAM TELESERVICES LTD. PAGE 19 OF 24 ITA NO.-5890/DEL/2016. M/S SISTEMA SHYAM TELESERVICES LTD. PAGE 20 OF 24 ITA NO.-5890/DEL/2016. M/S SISTEMA SHYAM TELESERVICES LTD. PAGE 21 OF 24 (D) IN THE COURSE OF THE APPELLATE PROCEEDINGS IN ITAT THE LD. AR OF THE ASSESSEE DID FILE COPY OF THE AFORESAID ASSESSMENT ORDER DATED 30.03.2016 FOR ASSESSMENT YEAR 2012-13 TO SHOW THAT THE AFORESAID AMOUNT OF RS. 64 50 92 443/- HAS BEEN TAXED AS ASSESSEES INCOME IN ASSESSMENT YEAR 2012-13 AND IT WAS SUBMITTED ON BEHALF OF THE ASSESSEE THA T THIS AMOUNT SHOULD NOT BE ADDED IN ASSESSEES INCOME FOR ASSESSMENT YEAR 2011 -12; CONSISTENT WITH THE AFORESAID PARAGRAPHS 19 AND 20 OF THE ORDER DATED 1 5.11.2018 OF HONBLE DELHI HIGH COURT. HOWEVER FOR FULL COMPLIANCE OF THE AF ORESAID DIRECTION CONTAINED IN PARAGRAPHS 19 AND 20 OF HONBLE DELHI HIGH COURT IT IS ALSO NECESSARY TO HAVE INFORMATION REGARDING UNUTILIZED AMOUNT IN RESPECT OF PREPAID CARDS WHICH THOUGH ISSUED IN EARLIER YEARS LAPSED IN THE PREVIOUS YEA R RELEVANT TO ASSESSMENT YEAR ITA NO.-5890/DEL/2016. M/S SISTEMA SHYAM TELESERVICES LTD. PAGE 22 OF 24 2011-12. THIS INFORMATION IS NEITHER AVAILABLE IN APPEAL FOLDER PERTAINING TO THIS APPEAL BEFORE US NOR WAS PROVIDED BY EITHER OF THE TWO SIDES IN THE COURSE OF APPELLATE PROCEEDINGS OF THIS APPEAL IN INCOME TAX APPELLATE TRIBUNAL. IN THIS SITUATION WHEN INFORMATION REGARDING UNUTILIZED AM OUNT OF PREPAID CARDS ISSUED BY THE ASSESSEE IN EARLIER YEARS WHICH LAPSED IN THE PREVIOUS YEAR RELEVANT TO ASSESSMENT YEAR 2011-12 IS NOT AVAILABLE READILY; W E ARE CONSTRAINED TO REMAND THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICE R TO DETERMINE THE INCOME OF THE ASSESSEE IN ACCORDANCE WITH THE AFORESAID ORDER DAT ED 15.11.2018 OF HONBLE DELHI HIGH COURT; AFTER ASCERTAINING THE INFORMATION RELE VANT FOR GIVING EFFECT TO AFORESAID PARAGRAPHS 19 AND 20 OF THE AFORESAID ORD ER DATED 15.11.2018 OF HONBLE DELHI HIGH COURT. ACCORDINGLY WE SET ASID E THE ORDERS OF THE LOWER AUTHORITIES [AFORESAID ASSESSMENT ORDER DATED 30.03 .2016 AND AFORESAID IMPUGNED APPELLATE ORDER DATED 01.09.2016 OF THE LD. CIT(A)] AND RESTORE THE ISSUE IN DISPUTE TO THE FILE OF THE AO WITH THE DIRECTION TO PASS FRESH ORDER AS PER LAW IN ACCORDANCE WITH AFORESAID ORDER DATED 15.11.2018 OF HONBLE DELHI HIGH COURT AND AFTER ASCERTAINING THE INFORMATION NECESSARY FOR GI VING EFFECT TO THE AFORESAID PARAGRAPHS 19 AND 20 OF AFORESAID ORDER DATED 15.11 .2018 OF HONBLE DELHI HIGH COURT. NEEDLESS TO SAY THE ASSESSING OFFICER WILL PROVIDE REASONABLE OPPORTUNITY TO THE ASSESSEE BEFORE PASSING FRESH ORDER. WE ALSO D IRECT THE ASSESSEE TO CO- OPERATE FULLY AND EXPEDITIOUSLY WITH THE ASSESSING OFFICER FOR IN ASCERTAINING INFORMATION NECESSARY FOR GIVING EFFECT TO THE AFOR ESAID PARAGRAPHS 19 AND 20 OF AFORESAID ORDER DATED 15.11.2018 OF HONBLE DELHI H IGH COURT. THIS APPEAL IS DISPOSED OFF WITH THE AFORESAID DIRECTIONS TO THE T WO SIDES. FOR STATISTICAL ITA NO.-5890/DEL/2016. M/S SISTEMA SHYAM TELESERVICES LTD. PAGE 23 OF 24 PURPOSES APPEAL IS PARTLY ALLOWED. ORDER IS PRONOUNCED IN OPEN COURT ON 28/02/2020. SD/- SD/- (AMIT SHUKLA) (ANADEE NATH MISSHR A) JUDICIAL MEMBER ACCOUNTANT MEMBE R DATED: 28/02/2020 POOJA/- COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI ITA NO.-5890/DEL/2016. M/S SISTEMA SHYAM TELESERVICES LTD. PAGE 24 OF 24 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 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 THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER