BALAJI INFRA PROJECTS LTD., MUMBAI V. ADDL.C.I.T. 2(1), MUMBAI

ITA 201/MUM/2013

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 3591 (ITAT-MUMBAI)
• Duration Of Justice: 8 year(s) 1 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-02-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 07-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: THARIAN OOMMEN
• Assessee Lawyers: FIROZE ANDHYARUJINA
• Keywords: Business income; Depreciation; Business expenditure; Earning of tax free income; Additional evidence; Revenue expenditure; Capital Gains
• Section: 14A; 201; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (V I RTUAL COURT) , B BENCH MUMBAI BEFORE : HONBLE JUSTICE P.P. BHATT, PRESIDENT & SHRI M.BALAGANESH, AM ITA NO. 201 /MUM/ 20 13 ( ASSESSMENT YEAR : 20 08 - 09 ) M/S. BALAJI INFRA PROJECTS LIMITED 6 TH F LOOR, NEW EXCELSIOR BUILDING A.K. NAYAK MARG, FORT MUMBAI 400 001 VS. ADDL. CIT - 2(1) MUMBAI PAN/GIR NO. AAACB2055M (APPELLANT ) .. (RESPONDENT ) ASSESSEE BY SHRI FIROZE ANDHYARUJINA REVENUE BY SHRI THARIAN OOMMEN DATE OF HEARING 09 / 02 /202 1 DATE OF PRONOUNCEMENT 17 / 02 /202 1 / O R D E R PER M. BALAGANESH (A.M) : THIS APPEAL IN ITA NO. 201/MUM/2013 FOR A.Y. 2008 - 09 ARISES OUT OF THE ORDER BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 4, MUMBAI IN APPEAL NO. CIT(A) - 4/IT - 157/ ADDL. CIT - 2(1)/2010 - 11 DATED 01/10/2012 (LD. CIT(A) IN SHORT) AGAINST THE ORDER OF ASSESSMENT PASSED U/S.143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS ACT) DATED 27/12/2010 BY THE LD. ADDL. COMMISSIONER OF INCOME TAX, RANGE 2(1), MUMBAI (H EREINAFTER REFERRED TO AS LD. AO). ITA NO . 201/MUM/2013 M/S. BALAJI INFRA PROJECTS LTD., 2 2. THE ASSESSEE HAS FILED THE FOLLOWING GROUNDS OF APPEAL. THE GROUNDS OF APPEAL SET BELOW ARE WITHOUT PREJUDICE TO ONE ANOTHER : - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMIS SIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE DISALLOWANCE OF SITE DEVELOPMENT EXPENSES OF RS.15,01,500/ - AND THE REASONS ASSIGNED FOR DOING SO ARE WRONG AND CONTRARY TO THE PROVISIONS OF INCOME TAX ACT. 1961, AND RULES MADE THEREUNDER. 2. (A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN REJECTING THE ADDITIONAL EVIDENCES FILED BY THE APPELLANT RELATING TO INTEREST EXPENDITURE OF RS.5,88,45 , 488 / - CAPITALIZED UNDER THE HEAD CAPITAL WORK IN PROGRESS AND THE REASONS ASSIGNED FOR DOING SO ARE WRONG AND CONTRARY TO THE FACTS AND CIRCUMSTANCES OF THE CASE, PROVISIONS OF INCOME TAX ACT, 1961, AND RULES MADE THEREUNDER. 2. (B) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND I N LAW, THE LOWER AUTHORITIES ERRED IN DENYING THE CAPITALIZATION OF EXPENSES UNDER THE HEAD CAPITAL WORK IN PROGRESS OF RS.6,29,58,517/ - AND THE REASONS ASSIGNED FOR DOING SO IS WRONG AND CONTRARY TO THE FACTS AND CIRCUMSTANCES OF THE CASE, PROVISIONS OF I NCOME TAX ACT, 1961. AND RULES MADE THEREUNDER. 2. (C) WITHOUT PREJUDICE TO THE GROUND OF APPEAL NO, 2(B) ABOVE, THE LOWER AUTHORITIES OUGHT TO HAVE TREATED THE EXPENSES OF RS.6,29,58,517/ - AS REVENUE EXPENDITURE INCURRED FOR PORT BUSINESS AND ALLOWED THE SAME AS DEDUCTION FROM BUSINESS INCOME AND NOT DOING SO IS WRONG AND CONTRARY TO THE FACTS AND CIRCUMSTANCES OF THE CASE, PROVISIONS OF INCOME TAX ACT, 1961, AND RULES MADE THEREUNDER. 3. (A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LOWER AUTHORITIES ERRED IN MAKING THE DISALLOWANCE OF PROPORTIONATE OPERATIVE AND ADMINISTRATIVE EXPENSES OF RS.29,73,524/ - U/S. 14A AND THE REASONS ASSIGNED FOR DOING SO ARE WRONG AND CONTRARY TO THE PROVISIONS OF INCOME TAX ACT, 1961. AND RULES MADE THEREUNDER. 3. (B) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LOWER AUTHORITIES ERRED IN MAKING THE DISALLOWANCE OF THE INTEREST EXPENDITURE OF RS. 5,88,45,488 / - AS EXPENDITURE INCURRED FOR EARNING EXEMPT INCOME U/S. 14A WITHOUT APP RECIATING THAT NO SUCH DEDUCTION WAS CLAIMED FROM THE BUSINESS INCOME AND THE REASONS ASSIGNED FOR DOING SO ARE WRONG AND CONTRARY TO THE PROVISIONS OF INCOME TAX ACT, 1961, AND RULES MADE THEREUNDER. ITA NO . 201/MUM/2013 M/S. BALAJI INFRA PROJECTS LTD., 3 4. (A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE DELETED THE ADDITION OF RS. 29,91 ,06 1/ - MADE BY THE LEARNED ASSESSING OFFICER AS EXPENDITURE INCURRED FOR EARNING EXEMPT INCOME, BEING DOUBLE ADDITION OVER AND ABOVE THE DISALLOWA NCE MADE U/S. 14A OF RS. 29.73,524 / - AND NOT DOING SO IS WRONG AND CONTRARY TO THE PROVISIONS OF INCOME TAX ACT, 1961, AND RULES MADE THEREUNDER. 4. (B) WITHOUT PREJUDICE TO THE GROUND OF APPEAL NO. 4(A) ABOVE, THE LEARNED COMMISSIONER OF INCOME TAX (APPE ALS) ERRED IN NOT ADMITTING THE ADDITIONAL GROUND OF APPEAL FILED BY THE APPELLANT RELATING TO ALLOWANCE OF BUSINESS EXPENDITURE AGGREGATING TO RS. 43,22,643 / - AS AGAINST ONLY RS. 13,3 1, 582 / - AND THE REASONS ASSIGNED FOR DOING SO ARE WRONG AND CONTRARY TO THE PROVISIONS OF INCOME TAX ACT, 1961, AND RULES MADE THEREUNDER. 4. (C) WITHOUT PREJUDICE TO THE GROUND OF APPEAL NO. 4(A) ABOVE, THE LOWER AUTHORITIES OUGHT TO HAVE ALLOWED THE BUSINESS EXPENDITURE AGGREGATING TO RS.43,22,643 / - (RS.13,31,582 / - + RS.29, 91,061/ - ) AS AGAINST ONLY RS. 13,31,582 / - AND NOT DOING SO IS WRONG AND CONTRARY TO THE FACTS AND CIRCUMSTANCES OF THE CASE, PROVISIONS OF INCOME TAX ACT, 1961, AND RULES MADE THEREUNDER. 5. (A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW , THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT ADMITTING THE ADDITIONAL GROUND OF APPEAL FILED BY THE APPELLANT RELATING TO CHARGING OF INTEREST INCOME UNDER THE HEAD 'INCOME FROM BUSINESS & PROFESSION' INSTEAD OF INCOME FROM OTHER SOURCES ' AND THE REASONS ASSIGNED FOR DOING SO ARE WRONG AND CONTRARY TO THE PROVISIONS OF INCOME TAX ACT, 1961, AND RULES MADE THEREUNDER. 5. (B) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LOWER AUTHORITIES OUGHT TO HAVE ASSESSED THE INTE REST INCOME UNDER THE HEAD 'INCOME FROM BUSINESS & PROFESSION' INSTEAD OF 'INCOME FROM OTHER SOURCES' AND NOT DOING SO IS WRONG AND CONTRARY TO THE FACTS AND CIRCUMSTANCES OF THE CASE, PROVISIONS OF INCOME TAX ACT, 1961, AND RULES MADE THEREUNDER. 6. (A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT ADMITTING THE ADDITIONAL GROUND OF APPEAL FILED BY THE APPELLANT RELATING TO ALLOWANCE OF CLAIM OF DEPRECIATION AS PER INCOME TAX A CT, 1961 OF RS.5,27,499/ - AS AGAINST RS.3,99,105 / - AS PER COMPANIES ACT, 1956 AND THE REASONS ASSIGNED FOR DOING SO ARE WRONG AND CONTRARY TO THE PROVISIONS OF INCOME TAX ACT, 1961, AND RULES MADE THEREUNDER. ITA NO . 201/MUM/2013 M/S. BALAJI INFRA PROJECTS LTD., 4 6. (B) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LOWER AUTHORITIES OUGHT TO HAVE ALLOWED THE CLAIM OF DEPRECIATION AS PER INCOME TAX ACT, 1961 OF RS.5,27,499/ - AS AGAINST RS.3.99,105/ - AS PER COMPANIES ACT, 1956 AND NOT DOING SO IS WRONG AND CONTRARY TO THE FACTS AND CIRCUMSTANC ES OF THE CASE, PROVISIONS OF INCOME TAX ACT, 1961, AND RULES MADE THEREUNDER. THE APPELLANT CRAVES LEAVE TO ADD , ALTER, AMEND AND/OR MODIFY ALL OR ANY OF THE ABOVE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING. 3. WE FIND THAT THE ASSESSEE HAD RA ISED SEVERAL GROUNDS OF APPEAL CONTESTING VARIOUS ISSUES BEFORE US. WE FIND THAT THE ASSESSEE IS A LIMITED COMPANY ENGAGED IN THE BUSINESS OF DEVELOPMENT OF PORTS AND RELATED INFRASTRUCTURE AND HAD FILED ITS RETURN OF INCOME FOR THE A.Y.2008 - 09 ON 01/10/20 08 DECLARING TOTAL INCOME OF RS.91,85,840/ - . THE ASSESSEE COMPANY IS A HOLDING COMPANY OF M/S. DIGHI PORT LTD. IT IS SAID TO BE PLANNING TO SET UP FTWZ/SEZ AROUND DIGHI PORT. THE ASSESSEE HAD DECLARED INCOME BY WAY OF SHORT TERM CAPITAL GAINS OF RS.91,85,8 36 / - AND BUSINESS INCOME AT RS. NIL. THE LD. AO WHILE COMP LETING THE ASSESSMENT HAD MADE SEVERAL DISALLOWANCES AND RE - COMPUTED THE INCOME OF THE ASSESSEE AT RS.170,60,046/ - . THE ASSESSEE HAD FILED VARIOUS ADDITIONAL EVIDENCES BEFORE THE LD.CIT(A) IN SUPPOR T OF ITS CLAIM OF VARIOUS EXPENSES IN ORDER TO CONTEST THE VARIOUS DISALLOWANCE AND ADDITIONS MADE BY THE LD. AO. THESE ADDITIONAL EVIDENCES WERE FILED BEFORE THE LD. CIT(A) ON THE PREMISE THAT SUFFICIENT OPPORTUNITIES WERE NOT GRANTED TO THE ASSESSEE BY T HE LD. AO. THE ASSESSEE HAD ALSO FILED THE ADDITIONAL GROUNDS BEFORE THE LD. CIT(A). ALL THESE ADDITIONAL EVIDENCES AND ADDITIONAL GROUNDS OF APPEAL WERE NOT ADMITTED BY THE LD. CIT(A) AND ACCORDINGLY THE LD. CIT(A) REJECTED THE SAME AND UPHELD THE ACTION OF THE LD. AO. ITA NO . 201/MUM/2013 M/S. BALAJI INFRA PROJECTS LTD., 5 4. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US AGAINST EACH OF THE ADDITIONS MADE AND ALSO ON THE PRELIMINARY POINT OF NON - ADMISSION OF THESE ADDITIONAL EVIDENCES AND ADDITIONAL GROUNDS BEFORE THE LD. CIT(A). ACCORDINGLY, THE LD. AR PR AYED BEFORE US THAT THE ENTIRE MATTER NEEDS TO BE RESTORED TO THE FILE OF THE LD. CIT(A) FOR FRESH ADJUDICATION OF ALL THE ADDITIONAL EVIDENCES AND ADDITIONAL GROUNDS FILED BY IT BEFORE THE LD. CIT(A) IN THE INTEREST OF JUSTICE. WHEN THIS WAS PUT TO LD. DR , HE FAIRLY AGREED FOR SENDING BACK THE MATTER TO THE FILE OF THE LD. CIT(A) FOR ADJUDICATION OF ALL THE YEARS IN DISPUTE BEFORE US. HENCE, WE DEEM IT FIT AND APPROPRIATE IN THE INTEREST OF JUSTICE AND FAIR PLAY , TO REMAND THE ENTIRE ISSUES IN DISPUTE BEFO RE US TO THE FILE OF THE LD. CIT(A) FOR DENOVO ADJUDICATION IN ACCORDANCE WITH LAW. THE LD. CIT(A) IS DIRECTED TO CONSIDER ALL THE EVIDENCES AND ADDITIONAL GROUNDS INCLUDING FRESH EVIDENCES AND FRESH GROUNDS, IF ANY , THAT ARE SUBMITTED BY THE ASSESSEE BEF ORE HIM. THE LD. CIT(A) IS HEREBY DIRECTED TO PASS A REASONED ORDER IN ACCORDANCE WITH LAW AFTER DUE APPRECIATION OF ALL THE FACTS AND EVIDENCES ON RECORD. ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 4. IN THE RES ULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 17 / 02 /202 1 BY WAY OF PROPER MENTIONING IN THE NOTICE BOARD. SD/ - ( JUSTICE P P BHATT ) SD/ - (M.BALAGANESH) PRESIDENT ACCOUNTANT MEMBER MUMBAI ; DATED 17 / 02 / 2021 ITA NO . 201/MUM/2013 M/S. BALAJI INFRA PROJECTS LTD., 6 KARUNA , SR.PS C OPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//