Appeal details
Counselvise Citation
[2018] 125 COUNSELVISE.COM (IT) 6739 (ITAT-DELHI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
3 year(s) 2 month(s) 21 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
04-07-2018
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
B
Assessment Year
2003-2004
Appeal Filed On
13-04-2015
Judgement Text
ITA NO. 2181/DEL/2015 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A NEW DELHI BEFORE SHRI R.S. SYAL, VICE PRESIDENT & SHRI K.N. CHARY, JUDICIAL MEMBER ITA NO.-2181/DEL/2015 ( ASSESSMENT YEAR: 2003-04) DCIT CIRCLE 7(1) NEW DELHI. VS DLF UTILITIES LTD., (SUCCESSOR TO DLF SERVICES LTD.) DLF CENTRE, 9 TH FLOOR, SANSAD MARG, NEW DELHI. PAN NO. AAACN3199A REVENUE BY SH. VIJAY KR. JIWANI, SR. DR ASSESSEE BY SH. R.S. SINGHVI, CA ORDER PER K. NARSIMHA CHARY, J.M. THIS IS AN APPEAL AGAINST THE ORDER DATED 01.01.201 5 IN APPEAL NO. 142/2013-14 PASSED BY THE LD. COMMISSION ER OF INCOME TAX (APPEALS)-III, DELHI (FOR SHORT HEREINAF TER REFERRED TO AS LD. CITA). 2. BRIEF FACTS OF THE CASE ARE THAT DURING THE SCRU TINY OF RETURN OF INCOME, THE LD. ASSESSING OFFICER MADE CE RTAIN DISALLOWANCES ON THE GROUND THAT THOUGH THE ASSESSE E CLAIMED TO HAVE SET UP THEIR BUSINESS ON 01.04.2002 THE SAM E WAS IN FACT SET UP ON 07.03.2003, AS SUCH, CERTAIN EXPENSE S ARE FOR PRE-OPERATIONAL PERIOD AND CERTAIN EXPENSES ARE ALL OWABLE ONLY DATE OF HEARING 03.07.2018 DATE OF PRONOUNCEMENT 04.07.2018 ITA NO. 2181/DEL/2015 2 PROPORTIONATELY. SIMULTANEOUSLY THE ASSESSING OFFI CER INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT) AND CONCLUDED THEM WITH THE LEVY OF PENALTY OF RS. 25,19,588/-. 3. IN APPEAL LD. CIT(A) FOUND THAT THERE WAS NO CON CEALMENT OF INCOME NOR ANY FURNISHING OF INACCURATE PARTICUL ARS, BUT ITS ONLY THE DISALLOWANCE OF EXPENDITURE CLAIMED BONAFI DELY BY THE ASSESSEE ON APPLICATION OF LAW. ON THIS PREMISE WH ILE FOLLOWING THE DECISION OF THE HONBLE APEX COURT IN CIT VS. RELIANCE PETRO PRODUCTS P. LTD. 322 ITR 158, LD. CI T (A) DELETED THE PENALTY. 4. REVENUE IS, THEREFORE, IN THIS APPEAL BEFORE US STATING THAT THE LD. CIT(A) FAILED TO APPRECIATE THAT THE A SSESSEE HAD FURNISHED INACCURATE PARTICULARS OF ITS INCOME BY C LAIMING DEDUCTION AND EXPENSES FOR THE PERIOD BETWEEN 01.04 .2002 AND 31.12.2002 WHICH WERE PREOPERATIVE IN NATURE AN D WERE LIABLE TO BE CAPITALIZED. 5. IT IS THE ARGUMENT OF THE LD. DR THAT IN THIS MA TTER AGAINST THE QUANTUM ADDITION AN APPEAL WAS PREFERRE D BY THE ASSESSEE AND THE LD. CIT(A) DID NOT AGREE WITH THE ASSESSEE THAT THE BUSINESS WAS SET UP ON 01.04.2002 AND IT W AS UPHELD BY THE ITAT ALSO, AS SUCH, IN SO FAR AS THE DISALLO WANCE FOR THE PROPORTIONATE PERIOD IS CONCERNED IT AMOUNTS TO FUR NISH OF INACCURATE PARTICULARS, AS SUCH, THE LD. CIT (A) IS NOT JUSTIFIED IN DELETING THE PENALTY. 6. IT IS THE ARGUMENT ON BEHALF OF THE ASSESSEE THA T IN THIS MATTER THE ASSESSEE CLAIMS TO HAVE SETUP THE BUSINE SS ON ITA NO. 2181/DEL/2015 3 01.04.2002, WHEREAS ACCORDING TO THE LD. AO IT WAS ON 07.03.2002 BUT ULTIMATELY THE LD. CIT (A) AND THE I TAT HELD THAT THE BUSINESS WAS COMMENCED ON 01.01.2003. THE DATE OF SET UP OF BUSINESS IS A MIXED QUESTION OF FACT AND LAW IN THIS MATTER AND IT IS HIGHLY DEBATABLE AS IS EVIDENT FRO M THE DIFFERENCE OF OPINION OF THE AUTHORITIES. 7. WE HAVE GONE THROUGH THE RECORD. IN SO FAR AS T HE FACTS ARE CONCERNED ABSOLUTELY THERE IS NO DISPUTE. ASSE SSEE CLAIMED TO HAVE SET UP OF BUSINESS ON 01.04.2002, W HEREAS THE LD. AO HELD IT TO BE ON 07.03.2003 BUT ULTIMATE LY THE LD. CIT (A) AND A COORDINATE BENCH OF THIS TRIBUNAL FOU ND IT TO BE ON 01.01.2003. THIS DIFFERENCE OF OPINION BETWEEN THE AUTHORITIES ITSELF CLEARLY SHOWS THAT IT IS NOT AN OPEN AND SHUT CASE BUT A DEBATABLE ONE INVOLVING THE MIXED QUESTI ON OF FACTS IN LAW. IT IS NOT THE CASE OF THE ASSESSING OFFICE R THAT THE ASSESSEE SUPPRESSED ANY INCOME OR WILLFULLY DISTORT ED THE FIGURES RELATING TO THE INCOME. 8. THE ENTIRE DISPUTE REVOLVES AROUND THE ALLOWANCE S OR DISALLOWANCES ARE CERTAIN EXPENSES WHICH ARE DEPEND ENT UPON THE DATE OF SET UP OF BUSINESS. AUTHORITIES REACHE D DIFFERENT CONCLUSIONS BASING ON THE SAME SET OF FACTS. THE D ISALLOWANCE IS THE RESULT OF THE DISAGREEMENT OF THE LD. AO WIT H THE VIEW OF THE ASSESSEE. 9. UNLESS AND UNTIL THERE IS AN AVERMENT AND PROOF THAT THERE IS CONCEALMENT OF INCOME OF FURNISHING OF INA CCURATE PARTICULARS THEREOF, MERE DISALLOWANCE OF AN EXPENS E WILL NOT AUTOMATICALLY TRIGGER THE LEVY OF PENALTY. DECISIO N OF THE ITA NO. 2181/DEL/2015 4 HONBLE APEX COURT IN RELIANCE PETRO PRODUCTS CASE (SUPRA) IS APPLICABLE TO THE FACTS OF THE CASE ON HAND. IT BI NDS THE LD. CIT (A) AND THIS TRIBUNAL AS WELL. WE, THEREFORE, WHILE RESPECTFULLY FOLLOWING THE SAME, DO NOT FIND ANY IL LEGALITY AND IRREGULARITY IN THE FINDINGS OF THE LD. CIT(A), AS SUCH, WE FIND THIS APPEAL IS DEVOID AS MERITS. WE, ACCORDINGLY, DISMISSED THE SAME. 10. IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 04.07.2018 SD/- SD/- (R.S. SYAL) (K. NARSIMHA CHARY) VICE PRESIDENT JUDICIAL MEMBER DATED: 04.07.2018 *KAVITA ARORA COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 03.07.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 03.07.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P S/PS 06.07.18 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 04.07.18 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 06.07.18 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT 06.07.18 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 06.0 7.18 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER
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