Delhi High Court
A. B. Hotels Limited vs Commissioner Of Income Tax on 10 December, 2008
Author: Badar Durrez Ahmed
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 10.12.2008
+ ITA 369/08, 376/08, 381/08, 386/08, 449/08, 457/08, 458/08 & 480/08
A. B. HOTELS LIMITED ... Appellant
- versus -
COMMISSIONER OF INCOME TAX ... Respondent
Advocates who appeared in this case:
For the Appellant : Mr C. S. Aggarwal, Sr Advocate with Mr Prakash Kumar
For the Respondent : Mr R. D. Jolly
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE RAJIV SHAKDHER
1. Whether Reporters of local papers may be allowed to
see the judgment ?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be reported in Digest ?
BADAR DURREZ AHMED, J (ORAL)
1. The present set of eight appeals arise out of the common
order passed by the Income Tax Appellate Tribunal on 15.06.2007 in
MA 328/Del/2006 pertaining to the financial years 1994-1995 to 2000-
2001 and 01.04.2001 to 31.12.2001. By virtue of the impugned order
the Tribunal disposed of the miscellaneous application filed on behalf
of the revenue under Section 254(2) of the Income Tax Act, 1961. The
revenue was seeking rectification of the earlier order dated 30.11.2005
passed by the Tribunal in TDS Appeal No. 18 to 25/Del/2003 in respect
ITA Nos. 369/08, 376/08, 381/08, 386/08, 449/08, 457/08, 458/08 & 480/08 Page No.1 of 4
of the above mentioned financial years. By virtue of the order dated
30.11.2005, the Tribunal concluded as under:-
"6. We, after having heard the parties, are of the view
that once the Revenue has collected the tax in respect of the
impugned additional payments made by the assessee to
IAAI, no action u/s 201(1) is required. In these
circumstances, we quash the impugned order with a
direction to the AO to verify the facts as stated by the Ld.
Counsel for the assessee. In case no tax has been paid by
IAAI in respect of the impugned payment, the AO is at
liberty to issue notice to the assessee and examine the
matter afresh after affording a reasonable opportunity of
being heard to the assessee."
The revenue felt that since no direction with regard to Section 201 (1A)
of the said Act had been given in the order dated 30.11.2005, the same
required modification. After hearing the parties, the Tribunal passed
the impugned order dated 15.06.2007, the relevant portion of which
reads as under:-
"5. It would appear that the Tribunal after having
quashed the impugned order passed by the Ld. CIT (A)
under section 201(1) & 201(1A) has given direction to the
Assessing Officer to verify the facts as stated by the Ld.
Counsel for the assessee. In case no tax has been paid by
IAAI in respect of the impugned payment, the Assessing
Officer is at liberty to issue notice to the assessee and
examine the matter afresh after affording a reasonable
opportunity of being heard to the assessee. However, no
further direction has been given in case the facts stated by
the assessee are found to be not correct. However, we are
of the view that said directions are incomplete as much as
further directions were required to be given in the matter
regarding charging of interest under section 201(1A) in
case the assessee has been found to be in default within the
meaning of section 201(1) of the Act. Thus, we are of the
view that there is an apparent mistake in the order dated
ITA Nos. 369/08, 376/08, 381/08, 386/08, 449/08, 457/08, 458/08 & 480/08 Page No.2 of 4
30.11.2005 which needs to be rectified in order to make the
directions given in the matter complete. We, therefore,
further give liberty to Assessing Officer to invoke the
provisions of section 201(1A) regarding charging of
interest from the date of chargeability to the date of actual
payments of tax in case the facts stated by the assessee are
found to be incorrect.
6. In the result, miscellaneous application filed by the
Revenue is allowed."
2. We have heard the counsel for the parties at length. In our
view what the Tribunal has done in the impugned order is nothing more
than making explicit what was already implicit in the order dated
30.11.2005. The order dated 30.11.2005 had been accepted by the
assessee. That order clearly directed the Assessing Officer to verify the
facts as stated by the counsel for the assessee that the revenue had
collected the tax in respect of the impugned additional payments made
by the assessee to the International Airports Authority of India. The
order dated 30.11.2005 had clearly directed that in case no tax had been
paid by IAAI in respect of the impugned payment, the Assessing
Officer was at liberty to issue notice to the assessee and examine the
matter afresh after affording a reasonable opportunity of being heard to
the assessee. That part of the order remains undisturbed by the passing
of the impugned order dated 15.06.2007. All that the impugned order
does is to make it clear that in case the facts, as stated by the assessee,
are found to be incorrect, that is, in case no tax has been paid by the
IAAI in respect of the impugned payments, the Assessing Officer
ITA Nos. 369/08, 376/08, 381/08, 386/08, 449/08, 457/08, 458/08 & 480/08 Page No.3 of 4
would have the further liberty to invoke the provisions of Section
201(1A) regarding charging of interest. In any event, this direction has
to be read with the earlier direction given in the order dated 30.11.2005
and in case the Assessing Officer contemplates any action under
Section 201(1) or 201(1A), he would have to issue a notice to the
assessee and examine the matter afresh after affording a reasonable
opportunity of hearing to the assessee in accordance with law. As such,
no interference with the impugned order is called for.
The appeals are dismissed.
BADAR DURREZ AHMED, J
RAJIV SHAKDHER, J
December 10, 2008
SR
ITA Nos. 369/08, 376/08, 381/08, 386/08, 449/08, 457/08, 458/08 & 480/08 Page No.4 of 4
