Income Tax Appellate Tribunal - Delhi
Berlian Mcdermott Sdn.Bhd., Noida vs Acit, Circle-1(1)(2) Int. Tax., New ... on 3 October, 2023
THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH 'D', NEW DELHI
Before Dr. B. R. R. Kumar, Accountant Member
Sh. Yogesh Kumar US, Judicial Member
ITA No. 1772/Del/2022 : Asstt. Year : 2018-19
Berlian McDermott Sdn.Bhd., Vs ACIT,
C/o Nangia & Co. LLP, Circle-1(1)(2), Intl. Taxation,
A-109, Sector-136, Noida, New Delhi-110002
Uttar Pradesh-201304
(APPELLANT) (RESPONDENT)
PAN No. AAGCB6291H
SA No. 35/Del/2023 : Asstt. Year : 2018-19
Berlian McDermott Sdn.Bhd., Vs ACIT,
C/o Nangia & Co. LLP, Circle-1(1)(2), Intl.
A-109, Sector-136, Noida, Taxation,
Uttar Pradesh-201304 New Delhi-110002
(APPELLANT) (RESPONDENT)
PAN No. AAGCB6291H
Assessee by : Sh. Salil Kapoor, Adv. &
Sh. Vibhu Jain, Adv.
Revenue by : Sh. Vizay B. Vasanta, CIT DR
Date of Hearing: 10.07.2023 Date of Pronouncement: 03.10.2023
ORDER
Per Dr. B. R. R. Kumar, Accountant Member:
The present appeal and Stay Application have been filed by the assessee against the order dated 09 .06.2022 passed by the AO u/s 143(3) r.w.s. 144C(13) o f the Income Tax Act, 1961.
2 ITA No. 1772/Del/2022 SA No. 35/Del/2023Berlian McDermott Sdn.Bhd.
2. The additional grounds filed by the assessee vide letter dated 03.03.2023 are as under:
"14. That, the DRP directions passed under Section 144C(5) of the Act is illegal, bad in law and without jurisdiction, as the same is not in conformity with law and the legal principles. The said order is in direct violation to the CBDT Circular No. 19/2019 dated 14.08.2019 and as such is illegal, liable to be qua shed and deemed to have never been issued.
15. That the DRP directions dated 04.05.2022 and the final assessment order dated 09.06.2022 are illegal, bad in law, w ithout jurisdiction and as such is barred by time limita tion."
3. Admissio n of the additional ground has been opposed in princ iple by the ld. DR. Keeping in view , the judgment of the Hon'ble Apex Court in the case of Natio nal Ther mal Power Co. Ltd. Vs CIT (1998) 229 ITR 383, the additional ground filed by the assessee is accepted. The relevant portion of the judgment is as under:
"5. Under Se ction 254 of the Income -tax Act, the Appe llate Tribunal may , after giving bo th the parties to the appeal an oppor tunity of being heard, pass such orders thereon as it thinks fit. The power of the Tribunal in dealing with appeals is thus expressed in the widest possible terms. The purpose of the assessment proceedings before the taxing authorities is to assess correctly the tax liability of an assess ee in accor dance w ith law. If, for example, as a result of a judicial decision given while the appe al is pe nding before the Tr ibunal, it is found that a non-taxable item is taxed or a permissible deduction is denie d, we do not see any reason why the assessee should be preve nted from raising that question before the tribunal for the first time, so long as the relevant facts are on record in respect of that ite m. We do not see any reaso n to restrict the power of the Tribunal 3 ITA No. 1772/Del/2022 SA No. 35/Del/2023 Berlian McDermott Sdn.Bhd.
under Section 254 only to decide the grounds w hich arise from the order of the Co mmissioner of Inc ome- tax (Appeals). Both the asse ssee as well as the Department have a right to file an appeal/cross- objec tions before the Tribunal. We fail to see why the Tribunal sho uld be prevented from considering questions of law arising in assessment procee dings although not raised ear lier.
6. In the case of Jute Corpor ation of India Ltd. v. C.I.T ., this Court, while dealing with the powers o f the Appe llate Assistant Commissio ner observed that an appellate authority has all the powers which the original authority may have in deciding the que stion before it subject to the restrictions or limitatio ns, if any, prescribed by the statutory prov isions. In the abse nce of a ny statutory provision, the appellate authority is vested with all the plenary powers w hich the subordina te authority may have in the matter. There is no good reason to justify curtailment o f the power of the Appellate Assistant Commissioner in enter taining an additional ground ra ised by the assessee in seeking modification of the orde r of assessment passed by the Income-tax Officer. This Cour t further observe d that there may be several factors justifying the raising of a new plea in an appeal and each case has to be considered on its own facts. The Appellate Assistant Commiss ioner must be satisfied that the ground raised was bona fide and that the same could not have been raised earlie r for good reasons. The Appellate Assistant Commiss ioner should exercise his discretion in permitting or not permitting the assessee to raise an additional ground in accordance with law and reason. The same observations would apply to appeals before the Tribunal also.
7. The view that the Tr ibunal is confined only to issues arising out of the appeal before the Commissioner of Income-tax (Appeals) takes too narrow a view of the powers of the Appellate Tribunal [vide, e.g., C.I.T, v. Anand Prasad (Delhi), C.I.T. v. KaramchandPremc hand P. Ltd. and C.I.T. v. Cellulose Products of India Ltd. . Undoubtedly, the Tribunal will have the discretion to 4 ITA No. 1772/Del/2022 SA No. 35/Del/2023 Berlian McDermott Sdn.Bhd.
allow or not allow a new ground to be raised. But where the Tr ibunal is only required to consider a question of law arising from the facts which are on record in the assessment proceedings we fail to see why such a question should not be allowed to be raised when it is necessary to consider that que stion in or der to correctly assess the tax liability of an assessee.
8. The reframed question, therefore, is answered in the a ffirmative, i.e., the Tribunal has jurisdictio n to examine a question of law which arises from the facts as found by the authorities below and having a bearing on the tax liability of the assessee. We remand the proceedings to the Tribunal for consideration of the new grounds raised by the assessee on the merits."
4. Respectfully following the above judgment of the Hon'ble Apex Court, the additional gro unds taken up by the assessee are hereby admitted.
5. The pertinent facts relating to completion of assessment proceedings are as under:
The DIN number quote d in the draft Assessment Order u/s 144C of the Income Tax Act, 1961 dated 30.09.2021 is ITBA/AST/F/144C/2021-22/1036060056(1).
The DIN number quoted in the Assess ment Or der dated 09.06.2022 is ITBA/AST/S/143(3)/2022-23/1043393023(1) The DIN number was not quoted in the Order u/s 144C(5) dated 18.05.2022.5 ITA No. 1772/Del/2022 SA No. 35/Del/2023
Berlian McDermott Sdn.Bhd.
The DIN was generated on 19.05.2022 written in handwriting is ITBA/DRP/M/144C(5)/2022- 23/1043072206(1).
The letter of intimation for order u/s 144C(5) dated 19.05.2022 is having DIN No. ITB A/DRP/S/91/2022- 23/1043072217(1).
In the above letter, it was infor med that order u/s 144C(5 ) dated 04.05.2022 is having DIN No .
ITBA/DRP/M/144C(5)/2022-23/1043072206(1).
6. The assessee argued b efore us that both the DIN num bers mentioned on the letter dat ed 19.05 .2022 having DIN No. ITBA/DRP/S/91/202 2-23/10430722 17(1) as well as the DIN number o f the ord er u/s 144C(5) mentioned in that intimation letter which is ITBA/DRP/M/144C(5)/2022-23/1043072206 (1) are not exist ing on the website of the Income Tax Department.
7. To verify the veracity of the claim of the assessee and the arguments of the ld. AR, the Bench decided to examine the existence of the DINs quoted in the orders in the Court itself in the presence of CIT DR, Sh. Vizay Babu. The e -portal o f the Income Tax Department has been e xamined wherein the "authenticate notice/or der issued by ITD" has bee n entered. The OTPs received on the registere d mobile number has been used to verify the authenticity of the notice /orders and the result came "no re cord found for the given criteria ". The entire examination/verification of the DINs has been done in the 6 ITA No. 1772/Del/2022 SA No. 35/Del/2023 Berlian McDermott Sdn.Bhd.
prese nce of the Income Tax Department Officers. No contrary evidence has been brought to our notice till today.
8. Hence, we hold that as the DINs purportedly issued by the Income Tax Department have been found to be not in exis tence and no record has bee n found, the Assessment Order is hereby quashed.
9. Owing to adjudication in the Income Tax Appeal, the Stay Petition becomes infructuous and hence dismissed.
10. In the result, the appeal of the assessee is allowed and the Stay Application of the assessee is dismissed.
Order Pronounced in the Open Court on 03/10/202 3.
Sd/- Sd/-
(Yogesh Kumar US) (Dr. B. R. R. Kumar)
Judicial Member Accountant Member
Dated: 03/10/2023
*Subodh Kumar, Sr. PS*
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
5. DR: ITAT
ASSISTANT REGISTRAR