Impulse India (P) Ltd., Gurgaon v. DCIT, New Delhi

ITA 761/DEL/2011 | 2005-2006
Pronouncement Date: 29-07-2011 | Result: Allowed

Appeal Details

RSA Number 76120114 RSA 2011
Assessee PAN AAACI1609J
Bench Delhi
Appeal Number ITA 761/DEL/2011
Duration Of Justice 5 month(s) 21 day(s)
Appellant Impulse India (P) Ltd., Gurgaon
Respondent DCIT, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 29-07-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 29-07-2011
Date Of Final Hearing 29-07-2011
Next Hearing Date 29-07-2011
Assessment Year 2005-2006
Appeal Filed On 07-02-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH C DELHI ] BEFORE SHRI I. P. BANSAL JUDICIAL MEMBER AND SHRI K. G. BANSAL I. T. APPEAL NOS. 761 & 762 (DEL) OF 2011 ASSESSMENT YEARS : 2005-06 & 2006-07. IMPULSE INDIA (P) LIMITED DY. COMMISSI ONER OF INCOME-TAX IMPULSE CORPORATE TOWER VS. C I R C L E : 11 (1) 41 ECHELON INSTITUTIONAL AREA N E W D E L H I. SECTOR : 32 GURGAON122 001 [HARYANA]. P A N / G I R NO. AAA CI 1609 J. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY : SHRI V. K. BAJAJ C. A.; & SHRI RAVIND ER BAJAJ A. C. A.; DEPARTMENT BY : SHRI SALIL MISHRA SR. D. R . O R D E R. PER I. P. BANSAL JM : THESE APPEALS ARE FILED BY THE ASSESSEE AND DIRECT ED AGAINST THE ORDER PASSED BY THE LD. CIT (APPEALS) DATED 19 TH OCTOBER 2010 FOR ASSESSMENT YEARS 2005-06 AND 200 6-07 2. GROUNDS OF APPEAL READ AS UNDER :- I. T. APPEAL NO. 761 (DEL) OF 2011 : 1. GROUND OF APPEAL NO.1: PROPER OPPORTUNITY OF BEING HEARD THAT THE LD. CIT(A) HAS NOT GIVEN A PROPER AND REAS ONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE PASSING THE ORDERS U/S 250 OF THE I NCOME TAX ACT. THE ASSESSEE DID NOT 2 I. T. APPEAL NOS. 761 & 762 (DEL) OF 2011 RECEIVE ANY NOTICE DATED 16.09.2010 FIXING THE CASE ON 11.10.10 AS STATED IN THE ORDERS PASSED BY LD. CIT(A). 2. GROUND OF APPEAL NO.2: DISALLOWANCE U/S 40(A)(IA) R S. 52710/- THAT THE LD. CIT(A) HAS ERRED IN LAW AND FACTS WHIL E DISALLOWING THE ABOVE AMOUNT OF RS. 52 710/- U/S 40(A)(IA) OF THE INCOME TAX ACT WITHOU T CONSIDERING THE FACT THAT THE ASSESSEE OF ITS OWN HAD DISALLOWED THE PROPORTIONATE EXPENDITUR E OF RS. 32 299/- IN THE COMPUTATION OF INCOME DUE TO LATE DEPOSIT OF PROPORTIONATE AMOUNT OF TDS ON 21.10.2005 ARISING DUE TO THE DIFFERENCE IN TDS RATE OF. 5.51% AS AGAINST 2.25% D EPOSITED IN TIME BY THE ASSESSEE. 3. GROUND OF APPEAL NO.S3: DISALLOWANCE OF RS. 83 124/ - U/S 94(7) OF THE INCOME TAX ACT THAT THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN D ISALLOWING A SUM OF RS. 83 124/- U/S 94(7) AND HAS NOT APPLIED THE PROVISIONS CORRECTLY DESPIT E THE FACT THAT THE DETAILS OF SUCH LOSS OF RS. 3 810/- DISALLOWABLE U/S 94(7) WERE FILED BY TH E ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 4. GROUND OF APPEAL NO.4: DISALLOWANCE OF EXPENSES U/S 14A OF THE INCOME TAX ACT OF RS. 45 430/- THAT THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN D ISALLOWING A SUM OF RS. 45 430/- ON AN ADHOC AND ARBITRARY BASIS U/S 14A @ 10% OF THE DIVI DEND INCOME OF RS. 4 54 298/- OUT OF THE DIVIDEND INCOME EARNED BY THE ASSESSEE FROM SHARES & MUTUAL FUNDS WITHOUT CONSIDERING THE FACT THAT THE ASSESSEE HAS NOT INCURRED ANY EXPENDI TURE FOR EARNING OF SUCH DIVIDEND INCOME. 5. GROUND OF APPEAL NO.5: DISALLOWANCE OF DEPRECIATION RS. 81 800/- THAT THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN D ISALLOWING A SUM OF RS. 81 800/- ON ACCOUNT OF DEPRECIATION ON THE ASSETS PURCHASED ON THE LAST DATE OF THE ACCOUNTING YEAR DESPITE THE FACT THAT ASSESSEE HAD FILED THE DETAIL S BILLS AND CERTIFICATE BEFORE THE LD. ASSESSING OFFICER CONFIRMING THAT THE ASSETS WERE I NSTALLED AND PUT TO USE BY THE ASSESSEE ON OR BEFORE 31.03.2005. 3 I. T. APPEAL NOS. 761 & 762 (DEL) OF 2011 THAT THE ASSESSEE PRAYS FOR THE LEAVE TO ADD AMEND OR VARY THE ABOVE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. I. T. APPEAL NO. 762 (DEL) OF 2011 : 1. GROUND OF APPEAL NO.1: PROPER OPPORTUNITY OF BEING HEARD THAT THE LD. CIT(A) HAS NOT GIVEN A PROPER AND REAS ONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE PASSING THE ORDERS U/S 250 OF THE I NCOME TAX ACT. THE ASSESSEE DID NOT RECEIVE ANY NOTICE DATED 16.09.2010 FIXING THE CASE ON 11.10.2010 AS STATED IN THE ORDERS PASSED BY LD. CIT(A). 2. GROUND OF APPEAL NO.2: DISALLOWANCE OF EXPENSES U/S 14A OF THE INCOME TAX ACT OF RS. 2 10 829/- THAT THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN D ISALLOWING A SUM OF RS. 2 10 829/- ON AN ADHOC AND ARBITRARY BASIS U/S 14A OUT OF THE DIVIDE ND INCOME OF RS. 4 56 354/- EARNED BY THE ASSESSEE FROM SHARES & MUTUAL FUNDS WITHOUT CONSIDE RING THE FACT THAT THE ASSESSEE HAS NOT INCURRED ANY EXPENDITURE FOR EARNING OF SUCH DIVIDE ND INCOME. THAT THE LD. CIT(A) HAS DIRECTED THE AO TO RESTRICT THE DISALLOWANCE TO % OF INCOME BUT HAS DISALLOWED RS. 2 10 829/- WHICH WORKS OUT TO % OF THE AVERAGE INVESTMENT MADE BY THE ASSESSEE IN SHARES AND MUTUAL FUNDS. 3. GROUND OF APPEAL NO.3: DISALLOWANCE OF DEPRECIATION RS. 54 415/- THAT THE LD. CIT(A) HAS MADE DISALLOWANCE OF RS. 54 415/- ON ACCOUNT OF DEPRECIATION ON AUTOMATIC VOLTAGE CONTROLLER ON THE GROUND THAT THE SE ARE NOT COVERED UNDER THE CATEGORY OF ENERGY SAVING DEVICES AND ALLOWED DEPRECIATION @ 15 % AS AGAINST 80% CLAIMED BY THE ASSESSEE DESPITE THE FACT THAT AS PER INCOME TAX RU LES AUTOMATIC VOLTAGE CONTROLLER ARE COVERED UNDER CATEGORY ENERGY SAVING DEVICES AND ARE ELIGIBLE FOR DEPRECIATION @ 80%. 4 I. T. APPEAL NOS. 761 & 762 (DEL) OF 2011 THAT THE ASSESSEE PRAYS FOR THE LEAVE TO ADD AMEND OR VARY THE ABOVE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 3.1 AS IT CAN BE SEEN FROM GROUND NO. 1 IT IS THE MAIN GRIEVANCE OF THE ASSESSEE THAT THE APPEALS FILED BY IT HAVE BEEN DISPOSED OF BY TH E LD. CIT (APPEALS) WITHOUT GIVING A REASONABLE AND PROPER OPPORTUNITY OF HEARING AS THE NOTICE DATED 16 TH SEPTEMBER 2010 FIXING THE DATE OF HEARING ON 11 TH OCTOBER 12010 WAS NOT SERVED. 3.2 REFERRING TO SUCH GRIEVANCE IT WAS SUBMITTED BY THE LD. AR THAT IN PARA 2.1 THE LD. CIT (APPEALS) HAS DEALT WITH THIS ISSUE AND IT IS MENTI ONED THEREIN THAT THE HEARING OF THE APPEAL WAS INITIATED VIDE NOTICE DATED 22 ND JULY 2010 FIXING THE DATE OF HEARING ON 10 TH SEPTEMBER 2010 WHEN SHRI JAGDISH CLERK OF V. K. BAJAJ & CO. HAD APPEARED AND PRAYED FOR ADJOURNMENT. HE SUBMITTED THAT THE LD. CIT (APPEALS) HAS FOUND THAT THE SAID PERSON WAS NOT AN AUTHORIZED PERSON UNDER SECTION 288 OF THE ACT AND AFTER NOTING SUCH FACT HE HAS FURTHER STATED IN PARA 2.2 THAT ANOTHER OPPORTUNITY WAS ALLOWED TO THE ASSESSEE VID E OFFICE LETTER DATED 16 TH SEPTEMBER 2010 FIXING THE CASE ON 11 TH OCTOBER 2010 WHEN ALSO NONE APPEARED ON BEHALF OF THE ASSESSEE AND NO WRITTEN SUBMISSIONS WERE FILED. TAKING IN VIEW SUC H POSITION THE LD. CIT (APPEALS) HAS OBSERVED IN PARA 2.3 THAT IN SPITE OF REPEATED OPPO RTUNITY NONE HAS APPEARED ON BEHALF OF THE ASSESSEE AND IN THIS MANNER THE LD. CIT (APPEALS) H AS CONFIRMED THE DISALLOWANCES MENTIONED IN THE APPEALS FOR RESPECTIVE ASSESSMENT YEARS. 3.3 HE SUBMITTED THAT THE NOTICE DATED 16 TH SEPTEMBER 2010 WAS NEVER SERVED UPON THE ASSESSEE AND THEREFORE EX-PARTE ORDER PASSED BY T HE LD. CIT (APPEALS) WAS WITHOUT GIVING ANY REASONABLE AND PROPER OPPORTUNITY. HE SUBMITTED TH AT THE MATTER MAY BE RESTORED BACK TO THE FILE OF THE LD. CIT (APPEALS) WITH A DIRECTION TO RE-ADJ UDICATE THE APPEALS AFTER GIVING A REASONABLE OPPORTUNITY OF HEARING. 3.4 ON THE OTHER HAND THE LD. SR. DR RELYING UPON THE ORDER OF THE LD. CIT (APPEALS) PLEADED THAT THE LD. CIT (APPEALS) HAD ALREADY GIVE N REASONABLE OPPORTUNITY TO THE ASSESSEE. THEREFORE ORDER OF THE LD. CIT (APPEALS) SHOULD BE CONFIRMED. 5 I. T. APPEAL NOS. 761 & 762 (DEL) OF 2011 4.1 WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS IN THE LIGHT OF MATERIAL PLACED BEFORE US. THE OBSERVATIONS OF THE LD. CIT (APPEALS) AS F OUND IN PARA 2.2 WHICH HAS BEEN MADE BASIS OF FRAMING THE EX-PARTE ORDER ARE AS UNDER :- 2.2 HOWEVER A FURTHER OPPORTUNITY WAS ALLOWED TO THE APPELLANT VIDE THIS OFFICE LETTER DATED 16/09/10 FIXING THE CASE ON 11/ 10/10 AND AGAIN NONE APPEARED ON BEHALF OF THE APPELLANT NEITHER ANY WRITTEN SUB MISSION WAS FILED. 4.2 PRIOR TO THAT ONLY ONE NOTICE WAS ISSUED BY THE LD. CIT (APPEALS) WHICH WAS FOR 10 TH SEPTEMBER 2010 WHEN THE REPRESENTATIVE OF THE ASS ESSEE THOUGH NOT AUTHORIZED HAD APPEARED AND THE LD. CIT (APPEALS) HAS DISCARDED HI S APPEARANCE ON THE GROUND THAT HE IS NOT AN AUTHORIZED PERSON. THUS EFFECTIVELY THE ONLY O PPORTUNITY GIVEN AFTER THE FIRST DATE OF HEARING IS VIDE NOTICE DATED 16 TH SEPTEMBER 2010. THOUGH IT HAS BEEN WRITTEN BY TH E LD. CIT (APPEALS) THAT OPPORTUNITY WAS ALLOWED TO THE ASSES SEE VIDE LETTER DATED 16 TH SEPTEMBER 2010 BUT IT HAS NOT BEEN MENTIONED THAT WHETHER OR NOT S UCH LETTER WAS EVER SERVED UPON THE ASSESSEE. IF IT IS NOT SERVED UPON THE ASSESSEE TH EN IT CAN BE SAID THAT THE ASSESSEE HAS NOT BEEN PROVIDED WITH REASONABLE AND SUFFICIENT OPPORTUNITY OF HEARING. THIS GRIEVANCE OF THE ASSESSEE HAS BEEN SPECIFICALLY STATED IN GROUND NO. 1 FOR BO TH THE YEARS. IN THIS VIEW OF THE POSITION WE ARE OF THE OPINION THAT THE ASSESSEE HAS NOT BEE N PROVIDED WITH REASONABLE AND SUFFICIENT OPPORTUNITY OF HEARING. THEREFORE WE CONSIDER IT JUST AND PROPER TO RESTORE BOTH THESE APPEALS TO THE FILE OF THE LD. CIT (APPEALS) WITH A DIRECTI ON TO RE-ADJUDICATE BOTH THESE APPEALS AS PER PROVISIONS OF LAW AFTER GIVING THE ASSESSEE A REASONABLE AND SUFFICIENT OPPORTUNITY OF HEARING. TO AVOID UNNECESSARY DELAY IN THE PROCEEDI NGS WE DIRECT THAT THE ASSESSEE OR ITS AUTHORIZED REPRESENTATIVE SHALL APPEAR BEFORE THE L D. CIT (APPEALS) FOR THE PURPOSE OF HEARING OF THESE APPEALS ON 27 TH SEPTEMBER 2011. THE LD. AR SUBMITTED THAT THE AS SESSEE WILL COMPLY WITH THE DIRECTIONS OF THE BENCH AND NO NOTICE WILL BE REQUIRED TO BE SENT TO THE ASSESSEE FOR HEARING BEFORE THE LD. CIT (APPEALS) ON 27 TH SEPTEMBER 2011. IN THE AFORE-MENTIONED MANNER THE APPEALS FILED BY THE ASSESSEE WERE DISPOSED OF AND THEY ARE CONSIDERED TO BE ALLOWED FOR STATISTICAL PURPOSES. 6 I. T. APPEAL NOS. 761 & 762 (DEL) OF 2011 5. IN THE RESULT THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES IN THE MANNER AFORESAID. THE ORDER WAS PRONOUNCED IN THE OPEN COURT ON : 29 TH JULY 2011. SD/- SD/- [ K. G. BANSAL ] [ I. P. BANSAL ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 29 TH JULY 2011. *MEHTA * COPY OF THE ORDER FORWARDED TO : - 1. APPELLANT. 2. RESPONDENT. 3. CIT 4. CIT (APPEALS) 5. DR ITAT NEW DELHI. TRUE COPY. BY ORDER. ASSISTANT REGISTRAR ITAT. 7 I. T. APPEAL NOS. 761 & 762 (DEL) OF 2011