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Income Tax Appellate Tribunal - Delhi

Lt. Col. Akhtar Director , New Delhi vs Assessee

           IN THE INCOME TAX APPELLATE TRIBUNAL
                    DELHI BENCH 'D' DELHI
         BEFORE SHRI C.L. SETHI AND SHRI K.G. BANSAL

                        ITA No. 1649(Del)/2010
                        Assessment year: 2006-07

Shri Lt. Col. J. Akhtar,                  Deputy Director of Income-tax
Director M/s Vishakhapatnam         Vs.   (Exemptions), Trust Circle IV,
Port Road Company Ltd.,                   New Delhi.
G5 & 6, Sector 10,
Dwarka, New Delhi-75.
PAN-AABCV3781F

  (Appellant)                               (Respondent)


                  Appellant by : Shri S.S. Gupta, C.A.
                  Respondent by: Shri A.K. Monga, Sr. DR

                                    ORDER

PER K.G. BANSAL : AM This appeal of the assessee emanates from the order of CIT(Appeals)-

XXI, New Delhi, passed on 29.1.2010 in appeal no. 185/08-09, pertaining to assessment year 2006-07. The corresponding assessment order was framed by the Deputy Director of Income-tax (E) on 26.12.2008 u/s 143(3) of the Income-tax Act, 1961, The assessee has taken the following grounds in the appeal:-

"1. That the ld. Assessing Officer has erred on facts and in law in passing the impugned order and the CIT(A) in confirming the same, which is contrary to law, equity and justice, facts and material on record, arbitrary, based on 2 ITA No. 1649(Del)/2010 conjectures and surmises, passed without application of mind and without following the due procedure of law.

2. That without prejudice to this generality, the ld. AO has erred on facts and in making and CIT(A) in confirming the following disallowances and/or additions to the income u/s 143(3):

(i) Interest earned or deposit with banks Rs.

10,86,177/- u/s 56 as income from other sources since the company is in construction stage and the interest has been adjusted against capital work-n- progress. Further, the interest paid on loans taken, which is the source of such deposit, has also not been allowed to be adjusted against this income.

(ii) Difference in loans taken as per balance-sheet and confirmation letter amounting to Rs. 1356444/- (627831561-626475117) in respect of NHAI and Rs. 2431734/- (110535204-108103470) in respect of Vishakhapatnam Port Trust (Total addition Rs. 3788178 u/s 68 is wrong, illegal and unjustified since all the parties involved are Government bodies and it takes time to pass the adjusting entries and there is no actual difference in the loan amounts. Further the addition is wrong as the appellant is in construction stage and there was no business carried on during the year.

(iii) Both the additions are also unjustified since the soul subject of the appellant is of public utility services and application for exemption u/s 10(23C)(iv) is also pending with the DGIT.

3. That the ld. AO has erred on facts and in law in ordering initiation of penalty proceedings u/s 271(1)(c).

4. That the order has been passed without allowing due and proper opportunity to the appellant before passing the impugned order and thus the cannons of natural justice has been violated.

5. That any other or further grounds of appeal may also be allowed to be taken at the time of hearing of the appeal.

6. That appellant craves leave and sanction of the Hon'ble ITAT to file additional evidence, if so required for proper prosecution of the case, based on facts and circumstances, which has not been or could not be educed or filed before lower authorities either because proper and sufficient opportunity was not provided or because it was not solicited or its need was not appreciated."

2. During the course of the hearing of the appeal on 8.9.2010, it was found that the appeal pertains to Vishakhapatnam Port Road Company Limited, but it has been filed in the name of Shri Lt. Col. J. Akhtar, Director, Vishakhapatnam Port Road Company Limited. The assessee is a public sector undertaking which has full right to sue and be sued in its own name. The appeal ought to have been filed in the name of the company and not in the name of its director. This defect was pointed out to the ld. counsel. Further the assessee is a public sector undertaking and it is obligatory on its part to obtain approval of the Committee of Secretaries formed for resolution of disputes between a department of 4 ITA No. 1649(Del)/2010 the Government and a PSU. It was found that such an approval has not been obtained even till the date of hearing on 8.9.2010. In view of the aforesaid defect, it was common case of both the parties that the appeal may be dismissed in limine with liberty to the assessee to file appeal or to rectify the defect in regard to the name after obtaining the approval of the COD. It is ordered accordingly.

3. The order was pronounced in the open court on 8.9.2010 soon after the hearing was completed.

 Sd/-                                                   sd/-

(C.L. Sethi)                                           (K.G.Bansal)
Judicial Member                                      Accountant Member

Date of order: 8th Sept., 2010.
SP Satia
Copy of the order forwarded to:

Shri Lt. Col. J. Akhtar, Dwarka, New Delhi. Deputy Director of Income-tax (E), Trust Circle -IV, New Delhi. CIT(A) CIT The DR, ITAT, New Delhi.

Assistant Registrar.