M/S.amec Foster Wheeler India Private Limited v. Deputy Commissioner Of Income Tax Corporate Circle 1(1) Room

M/S.Amec Foster Wheeler India Private LimitedRepresented by its Authorised signatoryMr.Venkatrama Katipalla6[th] floor, Zenith buildingAscendas IT Park, TaramaniChennai-600 113. .. Petitionervs. Deputy Commissioner of Income TaxCorporate Circle 1(1)Room No.611, VI floorWanarpathy blockNo.121, MG road, NungambakkamChennai-600 034. .. Respondent Prayer: Writ Petition filed under Article 226 of theConstitution of India, praying for the issuance of Writ ofCertiorarified Mandamus, to call for records of the respondentin AAACF3204C/AY 2009/10/DC-Co-C-1(1) dated May 23, 2017, quashthe same and consequently, direct the respondent to pass ordersafresh considering all the material before him with adequateopportunity to the petitioner in accordance with law. Heard Mr.N.V.Balaji, learned counsel for the petitioner andMrs.Hema Muralikrishnan, learned standing counsel for therespondent/Department. https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioner has filed the writ petition challengingthe proceedings of the respondent dated 23.05.2017, by which therespondent held that expenses towards the issue of improvementin leasehold premises to the tune of Rs.2,75,29,667/- for theassessment year 2009-2010 is treated as capital in nature asagainst the claim of the assessee as revenue expenditure and theincome of the assessee company for the assessment year 2009-2010remains unaltered from giving effect order dated 20.05.2016. Thepetitioner has filed an appeal before the Income Tax AppellateTribunal challenging the order passed by the Commissioner ofIncome Tax (Appeals) dated 09.03.2016. 3. As against the very same order, the revenue alsopreferred an appeal, in which a cross objection was filed by thepetitioner/assessee. The Tribunal by its order dated 06.01.2017,remanded the matter with regard to one of the issues for freshconsideration by issuing the following direction: “Claim of expenditure is similar to what wasclaimed by the assessee in A.Y.2008-2009. Hence weare of the opinion that in view of the order ofthe Tribunal for assessment year 2008-09, issueregarding claim of expenditure on improvement ofleasehold asset requires a fresh look by theId.Assessing Officer. We give similar directionsas given for assessment year 2008-09. Appeal ofthe assessee is treated as allowed for statisticalpurpose.” 4. Pursuant to the above order, the appropriate procedurethat should have been followed by the respondent is to put thepetitioner on notice, afford an opportunity and then takedecision in the matter. However, the respondent has straightaway proceeded and passed the impugned order, which is notsustainable, as it is in violation of principles of naturaljustice. 5. The learned counsel for the petitioner would point outthat there is an order of the Tribunal, which has been extractedand the extracted portion is not found in the earlier order.This submission is made to show that the impugned order has beenpassed without due application of mind and has virtuallyprejudged the issue. 6. As this Court is convinced that the impugned order passedis in violation of principles of natural justice, the matterrequires to be remanded to the respondent for freshconsideration. Accordingly, the Writ Petition is allowed, theimpugned order is set aside and the matter is remanded back tothe respondent for fresh consideration, who shall afford anopportunity to the petitioner and also permit him to file https://hcservices.ecourts.gov.in/hcservices/ written objections and take a fresh decision in the matter onmerits and in accordance with law. No costs. -s/d- Assistant Registrar(CS-IV) 6. As this Court is convinced that the impugned order passedis in violation of principles of natural justice, the matterrequires to be remanded to the respondent for freshconsideration. Accordingly, the Writ Petition is allowed, theimpugned order is set aside and the matter is remanded back tothe respondent for fresh consideration, who shall afford anopportunity to the petitioner and also permit him to file https://hcservices.ecourts.gov.in/hcservices/ written objections and take a fresh decision in the matter onmerits and in accordance with law. No costs. -s/d- Assistant Registrar(CS-IV) True Copy Sub-Assistant RegistrarkjToThe Deputy Commissioner of Income TaxCorporate Circle 1(1)Room No.611, VI floorWanarpathy blockNo.121, MG road, NungambakkamChennai-600 034.+1 CC to Mr. N.V. Balaji, Advocate sr 47907+1 CC to Ms. Hema Muralikrishnan, Advocate sr 47881 W.P.No.17333 of 2017SP(31/07/2017)