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Income Tax Appellate Tribunal, DELHI BENCH ‘D’, NEW DELHI
Before: SH. N. K. BILLAIYA & SH. C.N. PRASAD
PER N. K. BILLAIYA, AM: This appeal by the assessee is preferred against the order dated 25.03.2022 by NFAC, Delhi pertaining to A.Y. 2016-17.
The grievance of the assessee read as under:-
That on the facts and circumstances of the case and in law, the Ld. CIT(A) had grossly erred in not allowing the deduction for education cess and secondary and higher education cess of INR 1,02,94,879 (paid by the appellant), which was claimed by the appellant during assessment proceedings. 2. That on the facts and circumstances of the case and in law, the Ld. CIT(A)
had grossly erred in not allowing beneficial rate of tax Dividend Distribution Tax (DDT) in accordance with the more beneficial tax rate prescribed under India-Japan DTAA, which is applicable as per section 90(2) vis-a-vis section 115(0) of the Act, thereby denying the relief of INR 2,90,01,412/- to the appellant. 2.1. That the Ld. CIT(A) has grossly erred in not following the binding decision of this bench of jurisdictional Tribunal in case of Giesecke & Devrient [India] Pvt Ltd vs Addl. CIT, Special Range 4, Delhi [2020] 120 taxmann.com 338 (Delhi - Trib.), thereby completely disregarding the ‘Principle of Judicial Discipline’. 3. That on the facts and circumstances of the case and in law, the Ld. CIT(A) had grossly erred in not allowing the claim of depreciation of INR 1,13,61,527 on ‘Leasehold rights’ acquired by way of payment of lease premium to the appellant, which was claimed during assessment proceedings.
(A) Non-filing a revised ITR, no bar for the appellate authorities to consider, claims during assessment, if any 4. That the Ld. CIT(A) has grossly failed in construing the modification in tax rate of DDT as an additional claim filed during the assessment proceedings, which the Ld. AO ought to have allowed it during assessment proceedings itself. 5. That the Ld. CIT(A) as well as Ld. AO have failed to appreciate the limitation of the ITR-6 form, wherein the beneficial rate of DDT as per any DTAA (in comparison to the rate u/s 115(0)), could not be stated in the ITR itself, thereby leaving no option for the appellant, but to claim it outside of the ITR. 6. That the Ld. CIT(A) as well as Ld. AO had erred in not following the CBDT circular 14 (XL-35) dated 11 April, 1955 (C) Non-applicability of the Goetze (India) Ltd vs CIT (284 ITR 323) (SC) on the appellate authorities 7. That the Ld. CIT(A) had grossly erred in not appreciating the fact that the ruling of Hon’ble Supreme Court in case of Goetze (India) Ltd vs CIT, is not applicable on appellate authorities. 8. That the Ld. CIT(A) has grossly erred in disregarding the binding decision of the Hon’ble Supreme Court in the case of Jute Corporation of India Limited, [1990] 53 Taxman 85 (SC), wherein it was held that appellate authorities including the commissioner of income-tax (appeals) are empowered to consider fresh claims made by the tax-payers during the appellate proceedings. (D) Not following the statement given before the Hon’ble Punjab & Haryana High Court in C.W.P. No. 19729 / 2021 (order dated 24.03.2022)
That the Ld. CIT(A) had grossly erred in not examining the issues in present appeal on merits even after a binding statement / assurance submitted by standing counsel for revenue, before the Hon’ble Punjab & Haryana High Court in CWP 19729/2021, that the issues will be examined on merits, thereby disrespecting the whole legal process. 10. That the appellant prays for imposing costs on the Ld. CIT(A) for showing
disrespect to the biding order of Hon’ble Punjab & Haryana High Court in CWP 19729/2021. 11. That the Ld. CIT(A) had failed in totality to perform his statutory duty in deciding the appeal on merits and suggesting the appellant to seek condonation for delay in filing revised ITR, even when the powers u/s 250 of the Act are wide enough to allow relief on merits. (E) General ground 12. The Appellant prays for leave to add, alter, amend and/ or' modify any of the grounds of appeal at or before the hearing of the appeal.
Briefly stated the facts of the case are that the assessee filed its return of income on 30.11.2016 declaring total income of Rs.102.13 crores. The assessee is engaged in the business of manufacturing of catalytic converters. The return for the year under consideration was selected for complete scrutiny under CASS and accordingly statutory notices were issued and served upon the assessee. During the course of the assessment proceedings the assessee asked for the following claims :-
i. Claim of depreciation on leasehold rights acquired by the assessee by way of payment of lease premium. ii. Claiming refund for excessive dividend distribution tax paid by the assessee on dividend distributed paid by it. iii. Deduction for education and secondary and higher education cess paid by the assessee.
The AO was of the opinion that the above claims were not claimed by the assessee in its return of income nor it has revised its return of income. In view of this the aforementioned claims
were denied by the AO. When the matter was agitated before the CIT(A) the CIT(A) also denied the claim.
The bone of contention is the decision of the Hon’ble Supreme Court in the case of Goetze India Limited 157 taxmann 1 wherein the Hon’ble Supreme Court has held that the AO cannot entertain a claim for deduction otherwise than by filing a revised return. However, we are of the considered view that the said decision of the Hon’ble Supreme Court does not impinge on the power of the ITAT u/s. 254 of the Act.
Taking a leaf out of judgment of the Hon’ble Supreme Court (supra) we hold as under :-
Claim of depreciation on lease hold rights – we direct the AO to consider the claim of depreciation and decide the issue as per the relevant provisions of the law. 2. Claim of refund of excessive dividend distribution tax- the AO is directed to decide the issue after considering the decision of the special bench of the Tribunal in this issue. 3. Deduction for education and secondary and higher education cess – Since the Counsel has withdrawn this claim the same needs no adjudication.
With the above directions the appeal is restored back to the files of the AO to be decided afresh after affording a reasonable and adequate opportunity of being heard to the assessee.
In the result, the appeal of the assessee is allowed for statistical purpose.
Order pronounced in the open court on 21.06.2023.
Sd/- Sd/- [C.N. PRASAD] [N.K. BILLAIYA] JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: .06.2023 *Neha* Copy forwarded to: 1. Appellant 2. Respondent 3. CITi 4. CIT(A) 5. DR
Asst. Registrar ITAT, New Delhi