Income Tax Appellate Tribunal - Mumbai
Vodafone India Limited, Mumbai vs Principal Commissioner Of Income Tax - ... on 17 December, 2018
IN THE INCOME TAX APPELLATE TRIBUNAL
"F" BENCH, MUMBAI
BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND
SHRI RAJESH KUMAR, ACCOUNTANT MEMBER
S.A. no.562/Mum./2018
(Arising out of ITA no.3327/Mum./2018)
(Assessment Year : 2011-12)
Vodafone India Ltd.
Peninsula Corporate Park
................ Applicant
Ganpatrao Kadam Marg
Lower Parel, Mumbai 400 013
PAN - AAACH5332B
v/s
Asstt. Commissioner of Income Tax
................ Respondent
Circle-8(3)(2), Mumbai
Assessee by : Shri Salil Kapoor
Revenue by : Shri M.K. Singh
Date of Hearing - 14.12.2018 Date of Order - 17.12.2018
ORDER
PER SAKTIJIT DEY, J.M.
By filing this application, the assessee has sought stay of further proceedings in consequence to the order dated 28th March 2018, passed by the learned Principal Commissioner of Income Tax-8 (PCIT), Mumbai, under section 263 of the Income Tax Act, 1961 (for short "the Act") for the assessment year 2011-12.
2. The learned Authorised Representative submitted, the revisional authority has exercised his power under section 263 of the Act on the 2 Vodafone India Ltd.
issue of allowance of assessee's claim of depreciation on the 3G spectrum fees paid by treating it as intangible asset. The learned Authorised Representative submitted, apart from the fact that the Assessing Officer while allowing assessee's claim has passed a detailed order after proper application of mind, identical issue in dispute has been decided by the Tribunal in the case of other assessees, including, Idea Cellular Ltd. v/s PCIT, ITANo.360/Mum/2016, dated.06.12.2018. He submitted, while deciding the appeal of the concerned assessee arising out of a similar order passed under section 263 of the Act by the PCIT, the Tribunal not only has quashed the order passed under section 263 of the Act but also has held that assessee's claim of depreciation on cost of 3G Spectrum has to be allowed under section 32 of the Act by treating it as intangible asset. Thus, he submitted, in view of the favorable decision of the Tribunal on identical issue, further proceedings in consequence to the order passed under section 263 of the Act should be stayed till disposal of assessee's appeal against the order passed under section 263 of the Act by the Tribunal. Without prejudice to the aforesaid submissions, the learned Authorised Representative submitted, since the Assessing Officer has time to pass the consequential order till December 2018, to avoid expiry of limitation, he may be directed to pass the consequential order but operation of the said order should be stayed till disposal of assessee's appeal against the revision order passed under section 263 of the Act 3 Vodafone India Ltd.
pending before the Tribunal. Without prejudice to the aforesaid submission, the learned Authorised Representative submitted, the demand raised in consequence to the assessment order to be passed in pursuance to to the order passed under section 263 of the Act should be stayed till disposal of assessee's appeal by the Tribunal. In support of such contention, the learned Authorised Representative relied upon the following decisions:-
i) Ramesh Batta v/s CIT, S.A. no.356-359/Del./2013, dated 26.12.2013;
ii) Jindal Steel and Power Ltd. v/s PCIT, S.A. no.746/Del./2018, dated 10.12.2018; and
iii) CIT v/s ITAT, [2013] 31 taxmann.com 369 (Del.).
3. The learned Departmental Representative, though, at the time of hearing had submitted that the Assessing Officer may be directed to pass the assessment order in pursuance to the directions of the PCIT under section 263 of the Act, without enforcing the recovery of the outstanding demand till disposal of assessee's appeal against order passed under section 263 of the Act by the Tribunal, however, subsequently, he has filed a written submission strongly opposing grant of stay on any condition.
4. We have considered rival submissions and perused materials on record. The first issue which arises is, whether the Tribunal can stay further proceedings in consequence to the order passed under section 4 Vodafone India Ltd.
263 of the Act. It is the contention of the learned Authorised Representative that to avoid multiplicity of the proceedings the Tribunal has the inherent power to stay consequential proceedings in pursuance to order passed under section 263 of the Act. We find, in the case of Ramesh Batta v/s CIT (supra) the Tribunal in exercise of its inherent power has stayed assessment proceedings in pursuance to the directions of the revisional authority under section 263 of the Act. Further, in case of Jindal Steel and Power Ltd. v/s PCIT (supra), the Tribunal, Delhi Bench, though, has directed the Assessing Officer to give effect to the order passed under section 263 of the Act, however, to avoid multiplicity of the proceedings, the Tribunal has directed the Assessing Officer not to give effect to the assessment order to be passed in pursuance to the order passed under section 263 of the Act till the disposal of the appeal pending before the Tribunal challenging the order passed under section 263 of the Act. Thus, in view of the ratio laid down in the aforesaid decisions, it is apparent that the Tribunal has the inherent power to grant stay of further proceedings in consequence to the order passed under section 263 of the Act during the pendency of appeal against the order passed under section 263 of the Act before it. However, considering the submissions of learned Authorised Representative that the time limit to complete the assessment in pursuance to the directions issued under section 263 of the Act is likely to expire on 31st December 2018, we direct the 5 Vodafone India Ltd.
Assessing Officer to complete the assessment in pursuance to the directions of the learned Commissioner under section 263 of the Act within the prescribed period of limitation. However, considering the fact that corresponding appeal of the assessee against the order passed under section 263 of the Act being ITA no.3327/Mum./2018, is posted for hearing on 7th January 2019 and on earlier occasions, the appeal got adjourned at the instance of the Department, we are inclined to direct the Assessing Officer not to enforce recovery of the outstanding demand, if any, which is going to be raised in the fresh assessment order till the end of 31st January 2019, or till the disposal of ITA no.3327/Mum./2018, whichever is earlier. In view of the submissions of learned Authorised Representative that identical issue has been decided in favour of the assessee in some other appeals, we expect that both the parties will not seek any unnecessary adjournment of the appeal and make all efforts for hearing of appeal on 7th January 2019.
5. In the result, stay application is allowed.
Order pronounced in the open Court on 17.12.2018 Sd/- Sd/-
RAJESH KUMAR SAKTIJIT DEY
ACCOUNTANT MEMBER JUDICIAL MEMBER
MUMBAI, DATED: 17.12.2018
6
Vodafone India Ltd.
Copy of the order forwarded to:-
(1) The Assessee;
(2) The Revenue;
(3) The CIT(A);
(4) The CIT, Mumbai City concerned;
(5) The DR, ITAT, Mumbai;
(6) Guard file.
True Copy
By Order
Pradeep J. Chowdhury
Sr. Private Secretary
(Dy./Asstt. Registrar)
ITAT, Mumbai