Bhubaneswar Development Authority, Bhubaneswar V. DCIT, Circle-4(1), Bhubaneswar

ITA 329/CTK/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 7258 (ITAT-CUTTACK)
• Duration Of Justice: 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 24-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PIYUSH KILHE
• Assessee Lawyers: G NAIKRAJAT KAR
• Keywords: Revenue expenditure; Capital expenditure

Judgement Text

1 BHUBANESWAR DEVELOPMENT AUTHORITY IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO. 317 /CTK/201 7 ASSESSMENT YEAR: 2012 - 2013 DCIT, CIRCLE - 1(1), BHUBANESWAR . VS. BHUBANESWAR DEVELOPMENT AUTHORITY, AKASH SHOVA BUILDING, SACHIVALAYA MARG, BHUBANESWAR PAN/GIR NO. AAALB 0073 G (APPELLANT ) .. ( RESPONDENT ) ITA NO. 329 /CTK/2017: ASSESSMENT YEAR: 20 12 - 2013 C.O. NO.07/CTK/2018 (ARISING OUT OF ITA NO.317/CTK/2017: A.Y. 2012 - 13) BHUBANESWAR DEVELOPMENT AUTHORITY, AKASH SHOVA BUILDING, SACHIVALAYA MARG, BHUBANESWAR VS. DCIT, CIRCLE - 1(1), BHUBANESWAR. PAN/GIR NO. (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI G.NAIK/RAJAT KAR, AR REVENUE BY : SHRI PIYUSH KILHE, CIT DR DATE OF HEARING : 24 / 0 7 / 201 8 DATE OF PRONOUNCEMENT : 24 / 0 7 / 201 8 O R D E R PE R N.S.SAINI, AM THESE ARE CROSS APPEALS FILED BY THE DEPARTMENT AND THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) - 2 , BHUBANESWAR DATED 30.5.2017 FOR THE ASSESSMENT YEAR 2012 - 13. THE ASSESSEE HAS ALSO FILED CROSS OBJECTION, WHICH ARISES OUT OF THE APPEAL OF THE REVENUE IN ITA NO.317/CTK/2017. 2 BHUBANESWAR DEVELOPMENT AUTHORITY 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) IS NOT JUSTIFIED IN LAW AS WELL AS ON FACTS IN DELETING THE ADDITION OF RS. 1,85,23,084/ - MADE BY THE AO ON ACCOUNT OF DISALLOWANCE OF OPEN SPACE DEVELOPMENT AND LAND SCAPING HOLDING IT AS REVENUE EXPENDITURE, WHEN IT IS A SETTLED FACT THAT THE DEVELOPMENT EXPENDITURE ON A FIXED ASSET IS A CAPITAL EXPENDITURE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) IS NOT JUSTIFIED IN LAW AS WELL AS ON FACTS IN DELETING THE ADDITION OF RS.70,68,567/ - MADE BY THE AO ON ACCOUNT OF DISALLOWANCE OF RENEWAL OF GRATUITY, WHEN THE ASSESSEE COULD NOT SUBSTANTIATE ITS CLAIM THAT THE DEPOSITS ARE MADE TO AN APPROVED GRATUITY FUND. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) IS NOT JU STIFIED IN LAW AS WELL AS ON FACTS IN DELETING THE ADDITION OF RS.9,47,888/ - MADE BY THE AO TOWARDS SUSPENSE ACCOUNT, WHEN THE SAME WAS CLEARLY REVENUE RECEIPTS . 4. THE APPELLANT CRAVES TO ALTER, AMEND OR ADD ANY OTHER GROUND THAT MAY BE CONSIDERED NECE SSARY IN COURSE OF THE APPEAL PROCEEDING. 3. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL IN ITS APPEAL: 1. FOR THAT THE ORDER DATED 30.05.2017 AS PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 2, BHUBANESWAR HEREINAFTER REFERRED TO AS THE 'LEARNED CIT(A)' IS FAR FROM JUST AND LEGAL ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE. 2. FOR THAT THE LEARNED CIT(A) AS WELL AS LEARNED ASSESSING OFFICER HAVE COMMITTED A GRAVE ERROR OF FACT AND LAW IN DETERMINING THE GROSS INCOME OF RS.4,21,16,987/ - AS TAXABLE ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE. 3. FOR THAT THE LEARNED CIT(A) FAILED TO UNDERSTAND THAT THE APPELLANT IS A CIVIC BODY OF GOVT, OF ODISHA DULY CONSTITUTED UNDER ORISSA DEVELOPMENT AUTHORITIES ACT, 1982 WITH M AIN OBJECT 'PLANNING AND DEVELOPMENT' AND ITS INCOME IS NOT CHARGEABLE TO INCOME TAX ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE. 4. FOR THAT THE APPELLANT HAS BEEN GRANTED REGISTRATION U/S.12AA OF THE IT.ACT VIDE ORDER DATED 26.05.2017 IN ITA NO.3 29/CTK/2013 BY 3 BHUBANESWAR DEVELOPMENT AUTHORITY THE HON'BLE ITAT, CUTTACK BENCH, CUTTACK ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE. 4 . AT THE OUTSET, LD A.R. OF THE ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER HAS PASSED ORDER PRIOR TO GRANT OF REGISTRATION U/S.12A A OF THE ACT AND, THEREFORE, THE ASSESSMENT HA S BEEN MADE ON A HIGHER SIDE AND FURTHER, THE ASSESSEE WAS GRANTED REGISTRATION U/S.12A A OF THE ACT BY THE ORDER OF THE TRIBUNAL IN ITA NO.329/CTK/2013 ORDER DATED 26.5.2017 , COPY OF THE ORDER IS PLACED ON RECOR D. 5 . LD D.R. SUPPORTED THE ORDERS OF LOWER AUTHORITIES. 6 . WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. BOTH THE PARTIES BEFORE US ADMITTED THAT THE ASSESSMENT FOR THE ASSESSMENT YEAR U NDER CONSIDERATION HA S BEEN COMPLETED IN THE CASE OF THE ASSESSEE PENDING GRANT OF REGISTRATION U/S.12AA OF THE ACT. IT WAS ALSO SUBMITTED THAT THE TRIBUNAL VIDE ITS ORDER DATED 26.5.2017 IN ITA NO.329/CTK/2013 HAS ALLOWED REGISTRATION U/S.12AA OF THE ACT TO THE ASSESSEE AND, THEREFORE, ALL THE ISSUES INVOLVED IN THE APPEALS ARE TO BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFI CER FOR ADJUDICATION AFRESH. 7 . IN VIEW OF ABOVE SUBMISSIONS OF BOTH THE PARTIES, WE SET ASIDE THE ORDERS OF LOWER AUTHORITIES AND REMAND THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER TO RE - ADJUDICATE THE ISSUES INVOLVED IN THE APPEALS FILED BY THE REVENUE AND THE ASSESSEE IN THE LIGHT OF REGISTRATION NOW GRANTED TO THE ASSESSEE U/S.12AA OF THE ACT TO THE ASSESSEE. 4 BHUBANESWAR DEVELOPMENT AUTHORITY 8 . THE CROSS OBJECTION FILED BY THE ASSESSEE IS IN SUPPORT OF THE ORDER OF THE CIT(A) AGAINST THE DELETION OF ADDITIONS. A S BOTH THE APPEALS FILED BY THE REVENUE AND ASSESSEE HAVE BEEN RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER , THE CROSS OBJECTION IS ALSO RESTORED TO THE FILE OF THE ASSESSING OFFICER. 9 . IN THE RESULT, APPEAL FILED BY THE REVENUE AS WELL AS THE APPEA L AND CROSS OBJE C TION OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 24 / 0 7 /201 8 . S D/ - SD/ - ( PAVAN KUMAR GADALE) ( N.S SAINI) JUDICIALMEMBER A CCOUNTANT MEMBER CUTTACK; DATED 24 / 0 7 /201 8 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER, SR.PRIVATE SECRETARY ITAT, CUTTACK 1. THE APPELLANT /ASSESSEE : BHUBANESWAR DEVELOPMENT AUTHORITY, AKASH SHOVA BUILDING, SACHIVALAYA MARG, BHUBANESWAR 2. THE RESPONDENT. REVENUE DCIT, 1(1), BHUBANESWAR 3. THE CIT(A) - 1, BHUBANESWAR 4. PR.CIT - 1, BHUBANESWAR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//