1                       M.A No. 578/Del/2018


                    IN THE INCOME TAX APPELLATE TRIBUNAL
                       DELHI BENCH: `FRIDAY ' NEW DELHI

             BEFORE MS SUCHITRA KAMBLE, JUDICIAL MEMBER
                                     AND
             SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER
                          M.A NO. 578/Del/2018
                                   In
               ( I.T.A. No. 4651/DEL/2010 A.Y 2003-04)

     Dy. Commissioner of Income Vs            SRF Ltd.
     Tax,                                     Block ­ C, Sector ­ 45,
     Circle-1,                                Gurgaon
     LTU, New Delhi.                          AACS 0206 P
     (APPLICANT)                              (RESPONDENT)


                 Applicant by       Ms. Rathi Bimal, Sr. D.R
                 Respondent by      Shri Satyam Sethi, Adv.

                    Date of Hearing             18.10.2019
                    Date of Pronouncement       05.11.2019

                                     ORDER

PER SUCHITRA KAMBLE, JM

     This Miscellaneous Application is filed by the Revenue in respect of order
dated 03.04.2018.


2.   The Learned DR submitted as under:
     "2. The decision of the ITAT is therefore incorrect both purported in law and
         on 'facts. Hon'ble ITAT has passed judgement on the basis of letter
         dated 14.05.2008 produced by the Assessee Representative during the
         course of hearing. However, this letter dated 14.05.2008 on which
         Hon'ble ITAT relied while passing the order is neither available on the
         file records of this office nor on the record of the Sr. DR, G Bench, ITAT.
         Thus the authenticity of this letter relied upon and the context in which
         the same was purported to be written remains unexamined. Copies of
         letter written to Sr. DR and reply received are also enclosed as
         Annexure B1 & B2.
                                        2                       M.A No. 578/Del/2018







      3. In this case, the audit has pointed out information, which was not in
         the notice of the AO; who passed the original assessment order. This
         information included:-

      i.    The assessee has claimed a deduction of Rs. 1,58,46,251/- toward
      prepayment on ICICI Loan. This particular aspect has not been considered
      by the AO, as it is in the nature of capital expenditure.

      ii.    Further, the assessee claimed a deduction of Rs. 1,58,87,715/- on
      account of depreciation in respect of its head office whereas as per 3CD
      report, the eligible depreciation was shown at Rs. 1,38,46,709/- only.

      3.1 This was new information, though pointed out by the Audit, but was
      never considered by the AO. The reopening was therefore based on new
      information, and is not in any way a case of 'Change of opinion'. Thus, the
      Hon'ble ITAT has erred in findings on page no. 5 para 8 that the issues
      raised in the reopening was already examined in the audit objection and
      re-opening of case u/s 147 is change of opinion. Hon'ble ITAT has relied
      only upon the letter dated 14.05.2008 without perusal of material
      available on record without considering the case on merit. The decision of
      the ITAT is therefore incorrect both in law and on facts and is contrary to
      the settled law as decided by the Hon'ble Supreme Court in the cases of
      CIT Vs PVS Beedis Pvt. Ltd 237 ITR 13 Techsapn India Pvt. Ltd 92
      taxmann.com 361.

      4.    Therefore, in view of the above the present Miscellaneous
      Application is being filed before the Hon'ble ITAT requesting for considering
      the above mentioned issue and to revise its order dated 03.04.2018."

3.    The Ld. AR opposed the Misc. Application.







4.    We have heard both the parties and perused all the relevant material
available on record. The letter dated 14.05.2008 was produced by the assessee
from the records which were before the CIT(A) as well, therefore, we have
rightly taken cognizance of this letter while giving our finding. Non availability
of that letter in the department's records is not justified as the same has been
mentioned in the subsequent letters as well. Therefore, this Misc. Application is
dismissed.
                                        3                     M.A No. 578/Del/2018


5.    In the result, Misc. Application is dismissed.
Order pronounced in the Open Court on This 5th Day of November, 2019.



             Sd/-                                            Sd/-

     (PRASHANT MAHARISHI)                              (SUCHITRA KAMBLE)
     ACCOUNTANT MEMBER                                  JUDICIAL MEMBER

Dated:            05/11/2019
Priti Yadav, Sr. PS *

Copy forwarded to:

1.    Appellant
2.    Respondent
3.    CIT
4.    CIT(Appeals)
5.    DR: ITAT




                                                   ASSISTANT REGISTRAR

                                                       ITAT NEW DELHI
                            4                          M.A No. 578/Del/2018




Date of dictation                                    05.11.2019

Date on which the typed draft is placed before the   05.11.2019
dictating Member

Date on which the typed draft is placed before the
Other Member

Date on which the approved draft comes to the Sr.
PS/PS

Date on which the fair order is placed before the
Dictating Member for pronouncement

Date on which the fair order comes back to the Sr.
PS/PS

Date on which the final order is uploaded on the
website of ITAT

Date on which the file goes to the Bench Clerk

Date on which the file goes to the Head Clerk