DCIT, New Delhi v. M/s India Gypsum ltd.,, New Delhi

ITA 65/DEL/2010 | 2002-2003
Pronouncement Date: 28-04-2010 | Result: Dismissed

Appeal Details

RSA Number 6520114 RSA 2010
Bench Delhi
Appeal Number ITA 65/DEL/2010
Duration Of Justice 3 month(s) 22 day(s)
Appellant DCIT, New Delhi
Respondent M/s India Gypsum ltd.,, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 28-04-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted C
Tribunal Order Date 28-04-2010
Date Of Final Hearing 28-04-2010
Next Hearing Date 28-04-2010
Assessment Year 2002-2003
Appeal Filed On 06-01-2010
Judgment Text
I.T.A. NO.65 /DEL/10 1/3 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH C NEW DELHI) BEFORE SHRI A.D. JAIN JUDICIAL MEMBER AND SHRI A.K. GARODIA ACCOUNTANT MEMBER I.T.A. NO.65 /DEL/2010 ASSESSMENT YEAR : 2002-03 DCIT INDIA GYPSUM LTD. CIRCLE-11 (1) C/O MOHINDER PURI & CO. NEW DELHI. V. 1-AD VANDANA TOLSTOY MARG NEW DELHI. (APPELLANT) (RESPONDENT) PAN /GIR/NO.AAACI-0687-E APPELLANT BY : SMT. MONA MOHANTY SR. DR. RESPONDENT BY : SHRI A.K. BHATIA C.A. ORDER PER A.K. GARODIA AM: THIS IS REVENUE'S APPEAL DIRECTED AGAINST THE ORDER OF LD CIT(A)-XV NEW DELHI DATED 23.10.2009 FOR ASSESSMENT YEAR 2002-03 2. THE GROUNDS RAISED BY THE REVENUE READ AS UNDER: - 1. THE ORDER OF LD CIT(A) IS WRONG PERVERSE ILLEG AL AND AGAINST THE PROVISIONS OF LAW LIABLE TO BE SET ASIDE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.105 .46 LAKHS ON THE ACCOUNT OF ROYALTY BY FOLLOWING ITAT ORDER IN I.T.A . NO.2475/DEL/07 IN ASSESSEES OWN CASE SINCE THE SAID ORDER IS IN THE VIOLATION OF THE APEX . I.T.A. NO.65/DEL/10 2/3 COURT DECISION IN THE CASE OF GORELAL DUBEY V. CIT 248ITR 3 WHERE THE HON'BLE SUPREME COURT HELD THAT THE ROYALTY IS TAXA BLE FOR ALL PURPOSES INCLUDING APPLICATION OF SECTION 43B OF THE ACT. 3. LD DR OF THE REVENUE SUPPORTED THE ASSESSMENT OR DER WHEREAS IT IS SUBMITTED BY THE LD AR OF THE ASSESSEE THAT THIS AS SESSMENT ORDER IS PASSED BY THE ASSESSING OFFICER AS PER THE DIRECTION OF LD CI T IN HIS ORDER U/S 263 DATED 19.3.2007. IT IS ALSO SUBMITTED THAT AGAINST THIS O RDER OF LD CIT U/S 263 THE ASSESSEE WAS IN APPEAL BEFORE THE TRIBUNAL IN I.T.A . NO.2475/DEL/07 DATED 11.4.2008 IN WHICH THAT ORDER OF LD CIT U/S 263 OF THE INCOME TAX ACT 1961 WAS SET ASIDE. HE SUBMITTED A COPY OF THIS TRIBUNAL DE CISION. IT IS ALSO SUBMITTED THAT SINCE THE ORDER PASSED BY THE LD CIT U/S 263 HAS BE EN SET ASIDE BY THE TRIBUNAL THE CONSEQUENTIAL ORDER PASSED BY THE ASSESSING OFF ICER DOES NOT SURVIVE AND HENCE NO INTERFERENCE IS CALLED FOR IN THE ORDER OF LD CIT (A). 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE GON E THROUGH THE MATERIAL AVAILABLE ON RECORD AND WE FIND THAT THE ORDER OF L D CIT U/S 263 DATED 19.3.2007 HAS BEEN SET ASIDE BY THE TRIBUNAL IN I.T.A. NO.247 5/DEL/2007 DATED 11.4.2008. HENCE THE CONSEQUENTIAL ORDER PASSED BY THE ASSESS ING OFFICER ON 14.8.2007 U/S 143(3)/263 DOES NOT SURVIVE. UNDER THESE FACTS WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF LD CIT(A). WE ALSO FIND THAT REGARDING THE JUDGMENT OF HON'BLE APEX COURT RENDERED IN THE CASE OF GORELAL DUBEY V. CIT AS REPORTED IN 248 ITR 3(SC) CITED BY THE REVENUE IN GROUNDS OF AP PEAL IT HAS BEEN SUBMITTED BY THE ASSESSEE BEFORE THE TRIBUNAL IN APPEAL AGAIN ST THE ORDER U/S 263 THAT THE SUBSEQUENT JUDGMENT OF HON'BLE APEX COURT RENDERED IN THE CASE OF STATE OF WEST BENGAL V. KESHO RAM INDUSTRIES LTD. AS REPORTE D IN 266 ITR 721 (SC) IT HAS BEEN OBSERVED BY THE HON'BLE APEX COURT THAT TH ERE WAS AN ERROR ATTRIBUTABLE EITHER TO A STENOGRAPHER DEVIL OR TO SHEER INADVERT ENCE HAVING CREPT INTO THE MAJORITY JUDGMENT IN INDIA CEMENT LTD.S CASE 1 SC C 12 WHICH WAS FOLLOWED BY THE APEX COURT IN THE CASE OF GORELAL DUBEY (SUPRA) . IN VIEW OF THESE FACTS THIS JUDGMENT OF HON'BLE APEX COURT RENDERED IN THE CASE OF GORELAL DUBEY (SUPRA) IS . I.T.A. NO.65/DEL/10 3/3 NO MORE APPLICABLE AND OTHERWISE ALSO ONCE THE ORDE R OF LD CIT U/S 263 HAS BEEN SET ASIDE BY THE TRIBUNAL THE CONSEQUENTIAL O RDER PASSED BY THE ASSESSING OFFICER U/S 143(3)/263 DOES NOT SURVIVE. 5. IN THE RESULT THE APPEAL OF THE REVENUE IS DISM ISSED 6. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE O F HEARING I.E. 28 TH APRIL 2010. SD/- SD/- (A.D. JAIN) (A.K. GA RODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER DT. 28..4.2010. HMS COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)- NEW DELHI. 5. THE DR ITAT LOKNAYAK BHAWAN KHAN MARKET NEW DELHI. TRUE COPY. BY ORDER (ITAT NEW DELHI).