Hotel The Ascent, New Delhi V. JCIT, New Delhi

ITA 2545/DEL/2014

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7075 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 8 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 22-09-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 25-04-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AMRIT LAL
• Keywords: Set aside
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92

Judgement Text

ITAT 2545/DEL/2014 A.Y. 2007 - 08 HOTEL THE ASCENT, NEW DELHI 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : C NEW DELHI BEFORE SHRI J.SUDHAKAR REDDY, AM AND SHRI C.M.GARG, J.M. ITA NO: 2545 /DEL/2014 AY : - 200 7 - 08 HOTEL THE ASCENT VS. JCIT, RANGE 25 E 1050, SARASWATI VIHAR NEW DELHI NEW DELHI PAN: AAEFG 2590 Q (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI GAUTAM JAIN, ADV. RESPONDENT BY : SH. AMRIT LAL, SR.D.R. O R D E R PER J.SUDHAKAR REDDY, ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - X VI I, NEW DELHI DATED 04 .0 2. 2014 PERTAINING TO THE ASSESSMENT YEAR (A.Y.) 2007 - 08 . 2. FACTS IN BRIEF: - THE ASSESSEE IS A PARTNERSHIP FIRM CARRYING ON THE BUSINESS IN THE NAME AND STYLE OF HOTEL T HE ITAT 2545/DEL/2014 A.Y. 2007 - 08 HOTEL THE ASCENT, NEW DELHI 2 A SCENT , AT BARROTIWALA ROAD, BADDI, TEHSIL NALAGARH, DISTT. SOLAN (H.P.) . THE ASSESSEE CLAIMS THAT IT IS HAS COMMENCED BUSINESS ACTIVITIES ON 31.7. 2007 AND THE SAME WAS REGISTERED WITH THE D EPARTMENT OF T OURISM . THE ASSESSEE FIRM HAS CLAIMED THAT IT IS LOCATED IN A NOTIFIED AREA OF THE B OARD AND H ENCE IS ELIGIBLE FOR DEDUC TION UNDER SECTION 80 IC OF THE INCOME TAX ACT, 1961 (THE ACT). THE ASSESSING OFFICER (A.O.) REJECTED THE CLAIM OF THE ASSESSEE . A GGRIEVED THE ASSESSEEE CARRIED THE MATTER IN APPEAL BEFORE THE F IRST A PPELLATE A UTHORITY WHO HAD UPHELD THE ORDER OF THE A.O. BY OBSERVING AS UNDER. 5.8. THE APPELLANT HAS STATED CERTIFICATE FROM POLLUTION DEPARTMENT IS NOT REQUIRED IF ROOMS ARE LESS THAN 25. HOWEVER, I DO NOT FIND ANY SUCH LETTER FROM THE POLLUTION DEPT. ON RECORD. 5.9. IN MY VIEW, THE HOTEL MUST HAVE A VALID LICENSE ON THE BASIS OF NO OBJECTION FROM THE POLLUTION DEPARTMENT TO QUALIFY AS AN ECO TOURISM HOTEL. THE APPELLANT HAS NOT GIVEN ANY SUCH CERTIFICATE ON RECORD. IN VIEW THEREFORE, THE APPELLANT WILL NOT BE ELIGIBLE FOR DEDUCTION U/S 80 IC. 5.10. SINCE THERE IS NO CERTIFICATE FROM THE POLLUTION DEPT. THE DEDUCTION U/S 80 IC WILL NOT BE ALLOWED. THE DISALLOWANCE OF RS.8,12,002/ - IS CONFIRMED. THE GROUNDS OF APPEAL ARE RULED AGAINST THE APPELLANT. 3. AGGRIEVED WITH THIS ORDER, THE ASSESSEE IS IN APPEAL BEFORE US ON THE FOLLOWING GROUNDS. ITAT 2545/DEL/2014 A.Y. 2007 - 08 HOTEL THE ASCENT, NEW DELHI 3 1. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE ORDER PASSED BY THE LEARNED CIT(A) IS BAD IN LAW. 2. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE O RDER OF THE LEARNED ASSESSING OFFICER IN REJECTING THE CLAIM OF THE ASSESSEE U/S 80LC OF THE INCOME TAX ACT, 1961. 3. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A) HAS ERRED IN HOLDING THAT ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION U /S 80LC OF THE INCOME TAX ACT, 1961 OF RS. 18,13,809/ - (WRONGLY STATED AT RS. 8,12,002/ - IN THE APPELLATE ORDER). 4. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED C1T(A) HAS ERRED IN HOLDING THAT IN THE ABSENCE OF NO OBJECTION CERTIFICATE FROM THE POLLUTION DEPARTMENT THE ASSESSEE WAS NOT ELIGIBLE FOR DEDUCTION U/S 80LC OF THE INCOME TAX ACT, 1961 IGNORING THE LETTER OF HIMACHAL PRADESH POLLUTION CONTROL BOARD DATED 4.6.10 ISSUED TO THE APPELLANT WHICH WAS ALSO SUBMITTED TO THE AO AND LEAR NED CIT(A). 5. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND WITHOUT PREJUDICE TO THE ABOVE GROUNDS THE LEARNED CIT(A) HAS ERRED IN NOT CONSIDERING ADDITIONAL GROUND RELATING TO THE ALTERNATIVE CLAIM U/S 80LA AS HOTEL IN BADDI BEING BACKWARD AREA HAS BEEN GIVEN THE STATUS OF INDUSTRY AND ELIGIBLE FOR ALL THE BENEFITS LIKE OTHER INDUSTRY IN THAT AREA AS PER NOTIFICATION NO 1(10)/2001 - NER DATED 7.1.2003 OF MINISTRY OF COMMERCE. THE ACIT, CIRCLE 25(1), NEW DELHI ALSO OFFERED NO COMMENTS IN THIS REGAR D IN HIS REMAND REPORT DATED 16.12.2013 THOUGH HE ITAT 2545/DEL/2014 A.Y. 2007 - 08 HOTEL THE ASCENT, NEW DELHI 4 HAD BEEN ASKED TO OFFER HIS COMMENTS AS PER THE ORDER OF PREDECESSOR CIT(A). 6. THE ASSESSEE CRAVES YOUR INDULGENCE TO ADD AMEND OR ALTER ALL OR ANY GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 4. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT FAC TUAL INACCURAC Y HAS CREPT INTO THE ORDER OF THE LD.CIT(A), AS A CERTIFICATE FROM THE P OLLUTION D EPARTMENT WAS OBTAINED AND FILED BEFORE THE AUTHORIT IES. A COPY OF THIS CERTIFICATE WAS PLACED AT PAGE 6 OF THE ASSESSMENT ORDER . THE ASSESSEE FURTHER CLAIMED THAT THE ISSUE IS COVERED BY THE DECISION OF THE CHANDIGARH B ENCH OF THE TRIBUN AL IN ACIT VS. RAGHUNATH SINGH THAKUR (2012) 33 C CH 0306, CHANDIGARH ITAT, SPECIFICALLY RELIED ON PARA 25 AND 26 OF THIS ORDER . H E SUBMITTED THAT THE LD.CIT ( A) HAS NOT DISPUTED ANY OTHER FACTS IN THIS CASE . 5. THE LD.D.R. ON THE OTHER HAND SUBMITTED THAT THE AO IS OF THE VIEW THAT THE ASSESSEE WAS NOT CARRYING OUT ECO - T OURISM ACTIVITIES SPECIFIED IN THE POLICY OF HIMACHAL PRADESH AND ALSO THAT THE ASSESSEE HAS NOT PRODUCED THE P OLLUTION C ONTROL C ERTIFICATE . H E RELIED ON THE ORDER OF THE A.O. 6. A FTER HEARING RIVAL CONTENTIONS I FIND THAT THE LD.CIT(A) HAS AT PARA 5.8 BASED HIS DECISION ON THE FACTS THAT THE N O O BJECTION FROM THE P OLLUTION D EPARTMENT WAS NOT PLACED BEFORE HIM . ITAT 2545/DEL/2014 A.Y. 2007 - 08 HOTEL THE ASCENT, NEW DELHI 5 7. BEFORE US THE ASSESSEEE PRODUCED A COPY OF C ERTIFICATE OF P OLLUTION C ONTROL B OARD DATE D 4.6. 2010 WHICH IS AT PAGE 6 OF THE PAPER BOOK AND CLAIMS THAT THIS DOCUMENT HAS BEEN PRODUCED BEFORE THE LD.CIT(A). ON THIS FA CTUAL MATRIX WE DEEM IT FIT AND PROPER TO SET ASIDE THE ISSUE TO THE FILE OF THE F IRST A PPELLATE A UTHORITY FOR CONSIDERING THE C ERTIFICATE AND DISPOSE OF THE CASE IN ACCORDANCE WITH LAW. 8 . IN THE RESULT, THE APPEAL BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON 05 TH JANUARY, 2017 . SD/ - SD/ - (C.M. GARG) (J.SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: THE 05 TH JANUARY, 2017. *MANGA ITAT 2545/DEL/2014 A.Y. 2007 - 08 HOTEL THE ASCENT, NEW DELHI 6 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT; 2.RESPONDENT; 3.CIT; 4.CIT(A); 5.DR; 6.GUARD FILE BY ORDER ASST. REGISTRAR