Apex Buildwell Pvt. Ltd., Gurgaon V. ACIT, Central Circle- 17 , New Delhi

ITA 2726/DEL/2018

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 7986 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 9 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-01-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 19-04-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Revenue expenditure; Capital expenditure

Judgement Text

ITA NOS.-3231/DE/2014 AND 2726/DEL/2018. M/S APEX BUILDWELL PVT. LTD. PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: A: NEW DELHI) (THROUGH VIDEO CONFERENCING) BEFORE SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA NO:- 3231/DEL/2014 ( ASSESSMENT YEAR: 2009-10) M/S APEX BUILDWELL PVT. LTD., B-10, SHIVALIK, MALVIYA NAGAR, NEW DELHI 110017. VS. ACIT, CENTRAL CIRCLE-17, NEW DELHI. APPELLANT RESPONDENT PAN NO: AAFCA0010N ITA NO:- 2726/DEL/2018 ( ASSESSMENT YEAR: 2009-10) M/S APEX BUILDWELL PVT. LTD., 25-B, SECTOR-32, GURGAON, HARYANA-122001. VS. ACIT, CENTRAL CIRCLE-17, NEW DELHI. APPELLANT RESPONDENT PAN NO: AAFCA0010N ASSESSEE BY : SHRI ABHISHEK MATHUR, ADV. REVENUE BY : SHRI SHIV SWAROOP SINGH, SR. DR PER ANADEE NATH MISSHRA, AM (A) THE AFOREMENTIONED APPEALS IN THE CASE OF THE ASSE SSEE ARE TAKEN UP TOGETHER FOR THE SAKE OF CONVENIENCE AND BREVITY; AND ARE HEREBY DISPOSED OFF THROUGH THIS CONSOLIDATED ORDER. GROUNDS TAKEN IN THESE APPEALS OF ASSESSEE ARE AS UNDER: ITA NOS.-3231/DE/2014 AND 2726/DEL/2018. M/S APEX BUILDWELL PVT. LTD. PAGE 2 OF 5 ITA NO:- 3231/DEL/2014 I. THAT IN THE PRESENT CASE RELEVANT TO THE AY- 2 009-10 THE RETURN OF INCOME WAS FILED ON 30/09/2009, THEREFORE, THE NOTI CE U/S. 143[2] OF THE I T ACT, 1961 COULD BE ISSUED LAST BY 30/09/2010. HOWE VER, AS PER IMPUGNED ASSESSMENT ORDER THE SAID NOTICE WAS ISSUED ON 13/1 0/2010. HENCE, THE SAID NOTICE AS WELL AS THE IMPUGNED ASSESSMENT BASE D ON THAT NOTICE IS BEYOND JURISDICTION. SO FAR AS NOTICE DATED 30/08/ 2010 AS SAID IN THE IMPUGNED APPEAL ORDER IS CONCERNED THAT NOTICE WAS NEITHER ISSUED NOR SERVED UPON THE APPELLANT COMPANY. II. THAT THE APPELLANT COMPANY MADE AN ADVANCE OF R S. 28,00,000=00 ON 02/01/2006 FOR PURCHASE OF LAND, BUT BECAUSE OF THE APPELLANT COMPANY COULD NOT COMPLY WITH THE TERMS OF AGREEMENT IN THA T RESPECT, THE LANDOWNERS FORFEITED THE SAID ADVANCE AMOUNT OF RS. 28,00,000=00. THE LD. ASSESSING OFFICER HAS ERRED TO HOLD THAT THE SAID A DVANCE AMOUNT WAS IN THE NATURE OF CAPITAL EXPENDITURE AND TO DISALLOW THE C LAIM OF THAT AMOUNT AS REVENUE EXPENDITURE. III. THAT THE APPELLANT ASSESSEE CRAVES LEAVE TO AD D, ALTER, AMEND, REVISE, MODIFY, SUBSTITUTE OR DELETE ANY OR ALL GROUNDS OF APPEAL AND / OR PRAYER MADE. ITA NO:- 2726/DEL/2018 1) THAT THE HONBLE COMMISSIONER OF INCOME TAX (AP PEALS) HAS ERRED IN LAW AS MUCH AS ON THE FACTS OF THE CASE BY NOT ADJU DICATING THE FIRST LEGAL GROUND OF APPEAL RAISED BY THE APPELLANT BEFORE HIM WHICH STATES THAT THE LEARNED ASSESSING OFFICER WHILE IMPOSING THE PENALT Y OF RS.8,65,200/- U/SEC. 271(L)(C) OF THE INCOME TAX ACT, 1961 HAS HELD THAT THE PENALTY IS BEING LEVIED FOR FURNISHING INACCURATE PARTICULARS OF INC OME THEREBY CONCEALING TRUE PARTICULARS OF INCOME WITHOUT APPRECIATING THE FACT THAT IN THE ABSENCE OF THE CLEAR CUT FINDING AS TO WHETHER THE PENALTY IS BEIN G LEVIED FOR FURNISHING INACCURATE PARTICULARS OF INCOME OR FOR CONCEALMENT OF INCOME, NO PENALTY CAN BE IMPOSED AND THUS, THE ORDERS OF BOTH THE LEA RNED ASSESSING OFFICER AS WELL AS THE HONBLE COMMISSIONER OF INCOME TAX A RE LIABLE TO BE QUASHED. 2) THAT THE HONBLE COMMISSIONER OF INCOME TAX (APP EALS) HAS FURTHER ERRED IN LAW AS MUCH AS ON THE FACTS OF THE CASE WH ILE CONFIRMING THE PENALTY AS LEVIED BY THE LEARNED ASSESSING OFFICER BY HOLDING THAT THE APPELLANT HAS LOST THE APPEAL IN QUANTUM BEFORE THE HONBLE CIT (APPEALS) WITHOUT APPRECIATING THE FACT THAT THE PENALTY PROC EEDINGS ARE INDEPENDENT OF THE QUANTUM PROCEEDINGS. 3) THAT THE HONBLE COMMISSIONER OF INCOME TAX (APP EALS) HAS ERRED IN LAW AS MUCH AS ON THE FACTS OF THE CASE BY CONFIRMING T HE PENALTY IMPOSED BY ITA NOS.-3231/DE/2014 AND 2726/DEL/2018. M/S APEX BUILDWELL PVT. LTD. PAGE 3 OF 5 THE LEARNED ASSESSING OFFICER WITHOUT APPRECIATING THE MERITS OF THE CASE AND ALSO WITHOUT APPRECIATE THE FACTS THAT MERE CLA IM OF EXPENDITURE WHICH IS NOT SUSTAINABLE IN LAW DOES NOT AMOUNT TO FURNIS HING INACCURATE PARTICULARS OF INCOME AND THUS, THE PENALTY OF RS.8 ,65,200/- AS LEVIED BY THE LEARNED ASSESSING OFFICER ON THE ADDITIONS OF RS.28 .00 LACS MADE BY HIM BY TREATING THE REVENUE EXPENDITURE AS CAPITAL EXPENDI TURE IS LIABLE TO BE DELETED. 4) THAT THE APPELLANT ASSAIL HIS RIGHT TO AMEND, AL TER AND FURNISHING ADDITIONAL GROUND(S) OF APPEAL, IF REQUIRED AT THE TIME OF HEARING OF THE APPEAL. IT IS, THEREFORE, KINDLY PRAYED THAT THE UNWARRANTE D PENALTY OF RS. 8,65,200/- BE DELETED / QUASHED AFTER PROVIDING A FAIR OPPORTU NITY OF BEING HEARD TO THE APPELLANT. (B) AT THE TIME OF HEARING, AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSESSEE INFORMED US THAT THE ASSESSEE HAS OPTED TO SETTLE T HE AFOREMENTIONED APPEALS UNDER VIVAD SE VISHWAS SCHEME, 2020 (VSVS, FOR SHORT) AND THA T THE ASSESSEE HAS ALREADY FILED THE RELEVANT FORMS. THE LD. COUNSEL FOR ASSESSEE ALS O DREW OUR ATTENTION TO LETTER DATED 16 TH JANUARY, 2021 FILED IN INCOME TAX APPELLATE TRIBUNA L (ITAT, FOR SHORT) GIVING INTIMATION FOR THE SAME, AND REQUESTING TO WITHDRAW BOTH THESE APPEALS. (B.1) AT THE TIME OF HEARING BEFORE US, THE LD. COUNSEL F OR ASSESSEE AS WELL AS THE LEARNED SENIOR DEPARTMENTAL REPRESENTATIVE (LD. SR . DR, FOR SHORT) SUBMITTED BEFORE US THAT THESE APPEALS MAY BE TREATED AS WITHDRAWN AND MAY BE DISMISSED ON ACCOUNT OF THE AFORESAID VSVS. AFTER DUE CONSIDERATION, AND IN V IEW OF THE FOREGOING; AND AS BOTH SIDES HAVE AGREED TO THIS; WE ARE OF THE VIEW THAT BOTH T HESE APPEAL HAVE BECOME INFRUCTUOUS, AND TREAT THESE APPEALS AS WITHDRAWN ON ACCOUNT OF THE AFORESAID VSVS. ACCORDINGLY, ITA NOS.-3231/DE/2014 AND 2726/DEL/2018. M/S APEX BUILDWELL PVT. LTD. PAGE 4 OF 5 THESE APPEALS HAVING BECOME INFRUCTUOUS, ARE HEREBY DISMISSED AS WITHDRAWN, SUBJECT TO SETTLEMENT OF THE DISPUTES IN THE APPEALS UNDER THE AFORESAID VSVS. (C) BEFORE WE PART, WE HEREBY CLARIFY, BY WAY OF AB UNDANT CAUTION, THAT IF FOR SOME REASON THE DISPUTES UNDER THESE APPEALS BEFORE US ARE NOT SETTLED UNDER THE AFORESAID VSVS, THEN THE ASSESSEE WILL BE AT LIBERTY TO APPRO ACH ITAT FOR RESTORATION OF THESE APPEALS, IN ACCORDANCE WITH LA W. (D) IN THE RESULT, THESE APPEALS ARE DISMISSED. THIS ORDER HAS BEEN ALREADY PRONOUNCED ON 19 JANUAR Y, 2021 IN OPEN COURT, IN THE PRESENCE OF REPRESENTATIVES OF BOTH SIDES; AFTE R CONCLUSION OF THE HEARING. SD/- SD/- (SUDHANSHU SRIVASTAVA) (ANADEE N ATH MISSHRA) JUDICIAL MEMBER ACCOUNTANT MEMBE R DATED: 19/01/2021 POOJA/- COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI ITA NOS.-3231/DE/2014 AND 2726/DEL/2018. M/S APEX BUILDWELL PVT. LTD. PAGE 5 OF 5 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE 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 THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER