DCIT, New Delhi V. Ansal Properties and Infrastructure Ltd, New Delhi

ITA 3624/DEL/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1183 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2009
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 24-08-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: L M
• Assessee Lawyers: H MITTER

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : A : NEW DELHI BEFORE SHRI P.K. BANSAL, ACCOUNTANT MEMBER AND SHRI I.P. BANSAL, JUDICIAL MEMBER ITA NO. 3624/DEL/2009 ASSESSMENT YEAR : 2005-06 DCIT, CENTRAL CIRCLE-20, ROOM NO.333, E-2, ARA CENTRE, JHANDEWALAN EXTN., NEW DELHI. VS. ANSAL PROPERTIES AND INFRASTRUCTURE LTD., 115, ANSAL BHAWAN, 16, KG MARG, NEW DELHI. PAN : AAACA0006D (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI H. MITTER, CA REVENUE BY : SHRI L.M. PANDEY, CA O R D E R PER I.P. BANSAL, JUDICIAL MEMBER: THIS IS AN APPEAL FILED BY THE REVENUE. IT IS DIR ECTED AGAINST THE ORDER OF THE CIT (A) DATED 29 TH JUNE, 2009 FOR ASSESSMENT YEAR 2005-06. GROUND NO .2 READS AS UNDER:- 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE LD. CIT (A) HAS ERRED IN DELETING THE ADDITION OF RS.2,58,70,068/- ON ACCOUNT OF ANNUAL LETTING VALUE OF THE SELF OCCUPIED UNSOLD PROPERTIES. 2. GROUND NO.2 RELATES TO ADDITION MADE TO THE INCO ME OF ASSESSEE FROM HOUSE PROPERTY AT RS.2,58,70,068/- ON ACCOUNT OF NO TIONAL ANNUAL LETTING VALUE OF FLATS AND SPACES LYING UNSOLD IN THE CLOSING STOCK OF THE ASSESSEE. IT HAS BEEN ITA NO.3624/DEL/2009 2 MENTIONED IN THE ORDER OF THE CIT (A) THAT FOR EARL IER YEARS SIMILAR ISSUE WAS DECIDED BY THE TRIBUNAL IN ASSESSEES OWN CASE BY W AY OF FOLLOWING ORDERS:- A) ORDER OF CIT (A) FOR ASSESSMENT YEAR 1988-89 IN APPEAL NO.339/91-92 DATED 25.10.91 (PARA NO.2 TO 2.5 PAG E NO.2 TO 7) P.B PAGE NOS.113 TO 118. B) ORDER OF CIT (A) FOR ASSESSMENT YEAR 2004-05 IN APPEAL NO.534/06-07 DATED 26.5.2008 (PARA NO.3 PAGE NO.2 ) P.B PAGE NO.2 C) ORDER OF CIT (A) FOR ASSESSMENT YEAR 1988-89 IN APPEAL NO.339/91-92 DATED 25.10.91 (PARA NO.2 TO 2.5 PAG E NO.2 TO 7) P.B PAGE NOS.113 TO 118. D) .ORDER OF ITAT D BENCH, NEW DELHI IN ITA NO.20 6(DEL)/923 & 130/DEL/92 DATED 10.4.2000 FOR ASSESSMENT YEAR 1988 -89 (PARA NOS.7 TO 7.1 PAGE NOS.11 & 12) P.B PAGE NOS.106 TO 107. E) ORDER OF ITAT C BENCH, NEW DELHI IN ITA NO.301 9(DEL)/1992 FOR ASSESSMENT YEAR 1988-89 IN THE CASE OF SISTER COMPA NY M/S ANSAL HOUSING & CONSTRUCTION LIMITED (PARA NOS.4 TO 6 PAGE NOS.2 & 3) P.B PAGE NOS.144 TO 145. F) ITAT ORDERS FOR ASSESSMENT YEARS 1989-90 TO 1996 -97 AND 1998- 99 TO 2002-03 (PAGE NOS.70 TO 95 AND 24 TO 58) AND IN VIEW OF THE AFOREMENTIONED DECISIONS OF ITAT , CIT (A) HAS DELETED THE ADDITION. LD. DR RELYING ON THE ASSESSMENT ORD ER PLEADED THAT THE ADDITION WAS RIGHTLY MADE. 3. ON THE OTHER HAND, IT WAS PLEADED BY LD. AR THA T THE ISSUE IS SQUARELY COVERED BY THE AFOREMENTIONED DECISIONS OF THE TRIB UNAL RELYING UPON WHICH THE CIT (A) HAS GIVEN THE RELIEF. IT WAS SUBMITTED THA T IT HAS BEEN RECORDED IN THE ASSESSMENT ORDER THAT FOR EARLIER YEARS THE ISSUE W AS CONSIDERED BY THE HIGHER AUTHORITIES AND IT WAS DECIDED IN FAVOUR OF THE ASS ESSEE, BUT AS THE DECISION OF ITA NO.3624/DEL/2009 3 THE HIGHER AUTHORITIES HAVE NOT BEEN ACCEPTED BY TH E DEPARTMENT AND THE MATTER IS SUBJUDICE BEFORE THE HON'BLE HIGH COURT, THE CO NTENTION OF THE ASSESSEE THAT NO ADDITION COULD BE MADE IN THIS REGARD WAS NOT AC CEPTABLE. 4. WE HAVE HEARD BOTH THE PARTIES ON THIS ISSUE. O UR ATTENTION WAS DRAWN TO THE VARIOUS ORDERS OF THE TRIBUNAL, THE COPIES OF W HICH ARE PLACED IN THE PAPER BOOK. THESE ORDERS OF THE TRIBUNAL STARTS FROM ASS ESSMENT YEAR 1988-89. THE LATEST ONE IS AN ORDER DATED 2 ND JUNE, 2009 FOR ASSESSMENT YEAR 2004-05 IN ITA NO.2559/DEL/08 IN WHICH THE FOLLOWING GROUND WAS RA ISED BY THE REVENUE:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LD. CIT (A) HAS ERRED IN GRANTING RELIEF OF RS.2,90,25,704/ - ON ACCOUNT OF NOTIONAL ANNUAL LETTING VALUE OF FLATS HELD AS CLOS ING STOCK. 5. THE MATTER WAS DECIDED BY THE TRIBUNAL AS FOLLOW S:- 2. THE ASSESSEE WAS ENGAGED IN THE BUSINESS OF REA L ESTATE, DEVELOPMENT OF MINI TOWNSHIP, CONSTRUCTION OF HOUSE S, COMMERCIAL COMPLEXES ETC. THE AO FOUND THAT THE ASSESSEE WAS T HE OWNER OF FLATS, WHICH WERE LYING AS UNSOLD IN THE CLOSING ST OCK AT THE END OF THE PREVIOUS YEAR. THE AO PROCEEDED TO COMPUTE THE NOTIONAL RENTAL INCOME AND BROUGHT IT TO TAX UNDER THE HEAD INCOME FROM HOUSE PROPERTY. THE CIT(A) FOLLOWING THE ORDER OF THE ITAT IN ASSESSEES OWN CASE IN A.Y. 2002-03 ACCEPTED THE CO NTENTION OF THE ASSESSEE AND DELETED THE ADDITION, WHICH IS THE SUBJECT MATTER OF GROUND NO. 1 ABOVE. 2.1 THE ASSESSEES COUNSEL, WHO APPEARED BEFORE US , STATED THAT IDENTICAL ISSUE AROSE IN ASSESSEES OWN CASE R IGHT FROM A.Y. 1988-89 AND THE ITAT HAS CONSISTENTLY DECIDED THE I SSUE IN FAVOUR OF THE ASSESSEE. COPIES OF ORDERS OF THE ITAT, NUMB ERING ABOUT 15, ARE FILED IN THE PAPER BOOK. 2.2. FACED WITH THIS, THE LEARNED DR STRONGLY ARGUE D IN FAVOUR OF THE VIEW TAKEN BY THE AO. 2.3. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENT IONS AND GONE THROUGH THE RECORDS. AS THE RECORDS SHOW, IN EARLIE R YEARS THE ITAT HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. TH E DISCUSSIONS IN THOSE ORDERS SHOW THAT THE ITAT APPRECIATED THE FAC T THAT BUILDINGS UNDER COMPLETION STAGE WERE STOCK IN TRADE OF THE A SSESSEE FROM ITA NO.3624/DEL/2009 4 WHICH NO INCOME COULD BE DERIVED BY THE ASSESSEE A ND THEREFORE, ESTIMATING THE VALUE OF THESE PROPERTIES AS INCOME FROM HOUSE PROPERTY WAS NOT PROPER. THE FACTS OF THE CASE OF THIS YEAR AND THE EARLIER YEARS BEING IDENTICAL, FOLLOWING OUR OWN VI EW IN EARLIER YEARS, WE CONSISTENTLY TAKE THE SAME VIEW. IN THE LIGHT OF THIS DISCUSSION, THE ORDER OF THE CIT(A) ON THE ISSUE IN QUESTION IS UPHELD. 6. IN THIS VIEW OF THE SITUATION, RESPECTFULLY FOLL OWING THE EARLIER ORDERS OF THE TRIBUNAL, WE FIND NO MERIT IN THIS GROUND OF THE DE PARTMENT AND THE SAME IS DISMISSED. 7. GROUND NO.3 READS AS UNDER:- 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) HAS ERRED IN DELETING THE ADDITION OF R S.5,51,29,216/- ON ACCOUNT OF EXPENSES INCURRED ON COMPLETED PROJECTS. 8. THIS GROUND IS ALSO STATED TO BE COVERED IN FAVO UR OF THE ASSESSEE BY THE FOLLOWING ORDERS OF THE TRIBUNAL:- A) ORDER OF CIT (A) FOR ASSESSMENT YEAR 1987-88 IN APPEAL NO.180/90-91 DATED 8.10.90 (PARA NOS.4 TO 16 PAGE NOS.3 TO 12) P.B PAGE NOS.157 TO 166 B) ORDER OF ITAT D BENCH, NEW DELHI FOR ASSESSME NT YEAR 1987-88 IN ITA NO.9071(DEL)/1990 & 9152/DEL/1990 DATED 29.9 .1995 (PARA NOS.14 PAGE NOS.7 & 8) P.B PAGE NOS.152 TO 153. C) ORDER OF ITAT D BENCH, NEW DELHI FOR ASSESSMEN T YEAR 1988-89 IN ITA NO.206(DEL)/92 & 130/DEL/1992 DATED 10.4.200 0 (PARA NO.8 TO 8.1 PAGE NO.12) P.B PAGE NO.107. D) ORDER OF ITAT D BENCH, NEW DELHI FOR ASSESSMEN T YEAR 1989-90 IN ITA NO.7636(DEL)/1992 IN THE APPELLANTS OWN CAS E (PARA NO.5 PAGE NO.2) P.B PAGE NO.94. E) ORDER OF ITAT B BENCH, NEW DELHI IN ITA NO.346 7(DEL)/1994 FOR ASSESSMENT YEAR 1990-91 IN THE APPELLANTS OWN CASE (PARA NO.3(II) - PAGE NO.2) P.B PAGE NO.91 ITA NO.3624/DEL/2009 5 F) .ORDER OF ITAT D BENCH, NEW DELHI IN ITA NO.40 09(DEL)/1994 FOR ASSESSMENT YEAR 1991-92 (PARA NOS.1 (2) & 3 PAGE NOS. 1 TO 3) P.B PAGE NOS.86 TO 88. G) ORDER OF ITAT A BENCH, NEW DELHI IN ITA NO.193 2(DEL)/1996 FOR ASSESSMENT YEAR 1992-93 (PARA NOS.2 TO 4) P.B PAGE NOS.78-79 H) ORDER OF ITAT E BENCH, NEW DELHI IN ITA NO.580 4(DEL)/1997 FOR ASSESSMENT YEAR 1994-95 (PARA NOS.1 (B) & 4 PAGE NOS. 1 TO 2) P.B PAGE NOS.76 TO 77. I) ORDER OF ITAT E BENCH, NEW DELHI IN ITA NO.137 3(DEL)/99 FOR ASSESSMENT YEAR 1995-96 (PARA NOS.1 (3) & 5 PAGE NOS. 1 & 2) P.B PAGE NOS.74 TO 75. J) ORDER OF ITAT E BENCH, NEW DELHI IN ITA NO.217 3(DEL)/2000 FOR ASSESSMENT YEAR 1996-97 (PARA NOS.1 (B) & 2 PAGE NO. 1) P.B PAGE NO.70. K) ORDER OF CIT (APPEALS) FOR ASSESSMENT YEAR 1997- 98 IN APPEAL NO.130/2000-01 DATED 30.12.2000 (PARA NOS.5 TO 6 PAGE NOS. 2 TO 3) P.B PAGE NOS.60-61. L) ORDER OF ITAT A BENCH, NEW DELHI IN ITA NO.212 2(DEL)/2002 FOR ASSESSMENT YEAR 1998-99 (PARA NOS.6 TO 8 PAGE NOS . 3 TO 4) P.B PAGE NOS.57 TO 58. M) ORDER OF ITAT E BENCH, NEW DELHI IN ITA NO.529 6(DEL)/2003 FOR ASSESSMENT YEAR 2000-2001 (PARA NOS.1 (C) & 4 TO 5 PAGE NO. 1 & 3) P.B PAGE NOS.37 & 39. N) ORDER OF ITAT E BENCH, NEW DELHI IN ITA NO.392 2(DEL)/2004 FOR ASSESSMENT YEAR 2001-02 (PARA NOS.2(3) & 5 TO 7 P AGE NOS. 2 & 4 TO 6) P.B PAGE NOS.31 & 33 TO 35. O) ORDER OF ITAT I BENCH, NEW DELHI IN ITA NO.481 9(DEL)/2005 FOR ASSESSMENT YEAR 2002-03 (PARA NOS. 5 TO 7 PAGE NO S.4 TO 6) P.B PAGE NOS.27 TO 29. ITA NO.3624/DEL/2009 6 P) ORDER OF CIT (APPEALS) FOR ASSESSMENT YEAR 2003- 04 IN APPEAL NO.57/06-07 DATED 10.1.20088 (PARA NO.4 PAGE NO.3 ) P.B PAGE NO.14. Q) ORDER OF CIT (APPEALS) FOR ASSESSMENT YEAR 2004- 05 IN APPEAL NO.534/06-07 DATED 26.5.2008 (PARA NOS.4 PAGE NO. 3) P.B PAGE NO.3. 9. RELYING UPON THE AFOREMENTIONED DECISIONS OF THE TRIBUNAL, THE CIT (A) HAS DELETED THE ADDITION. THE DISALLOWANCE WAS MAD E BY THE ASSESSING OFFICER IN RESPECT OF EXPENSES OF COMPLETED PROJECTS AND S IMILAR DISALLOWANCE WAS CONSIDERED BY THE TRIBUNAL IN AFOREMENTIONED ORDERS . WHILE MAKING SUCH DISALLOWANCE, THE ASSESSING OFFICER HAS MADE SIMILA R OBSERVATIONS AS HAVE BEEN MADE IN RESPECT OF GROUND NO.1. HE HAS MENTIONED T HAT THIS ISSUE HAS BEEN ACCEPTED IN FAVOUR OF THE ASSESSEE BY THE HIGHER AU THORITIES, BUT AS DEPARTMENT AS NOT ACCEPTED, THE DECISIONS OF HIGHER AUTHORITY AND THE MATTER IS PENDING BEFORE THE HON'BLE HIGH COURT, THE DISALLOWANCE IS BEING MADE. 10. AFTER HEARING BOTH THE PARTIES, WE FIND THAT TH IS ISSUE WAS ALSO DISCUSSED BY THE TRIBUNAL IN THE AFOREMENTIONED ORDER DATED 2 ND JUNE, 2009 AND THE MATTER WAS DEALT WITH AS UNDER:- 3. PROJECT-WISE AND HEAD-WISE DETAILS WITH REGARD TO EXPENSES INCURRED DURING THE YEAR IN RESPECT OF PROJECT SHOW N AS COMPLETED IN EARLIER YEARS WAS FURNISHED ALONG WITH THE RETUR N OF INCOME. AS IN THE EARLIER YEARS, SIMILAR EXPENSES WERE ACCOUNTED FOR IN RESPECT OF ITS VARIOUS PROJECTS SHOWN COMPLETED IN EARLIER YEA RS. THE AO, AS COULD BE SEEN FROM THE DISCUSSION IN THE ASSESSMENT ORDER, FOLLOWED HIS OWN VIEW EXPRESSED IN EARLIER YEARS IN MAKING THE DISALLOWANCE. THE AO IN HIS ORDER HAS ALSO MENTION ED THAT THE DECISION OF THE CIT(A) AND THE ITAT WERE NOT ACCEPT ED BY THE DEPARTMENT AND THE MATTER IS AWAITING FOR THE DECIS ION OF THE HIGH COURT OF DELHI. THE ASSESSEES COUNSEL HAS ALSO FI LED COPIES OF THE ORDERS ON THE IDENTICAL ISSUE RIGHT FROM THE ASSESS MENT YEARS 1987- 88 TILL 2003-04. IN THE LIGHT OF OUR DECISION IN EA RLIER YEARS ORDERS WITH WHICH WE ARE IN FULLY AGREEMENT, WE DO NOT FIN D ANY INFIRMITY IN THE ORDER OF CIT(A) WHO HAS JUST FOLLOWED THE ORDER OF THE ITAT IN THE EARLIER YEARS. WE DECLINE TO INTERFERE. ITA NO.3624/DEL/2009 7 11. IN THIS VIEW OF THE SITUATION, AS THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE AFOREMENTIONED DECISION OF THE TRIB UNAL, WE FIND NO MERIT IN THIS GROUND ALSO AND THE SAME IS DISMISSED. 12. IN THE RESULT, THE APPEAL FILED BY THE DEPARTME NT IS DISMISSED. . 13. THE ORDER PRONOUNCED IN THE OPEN COURT ON 30.10 .2009. [P.K. BANSAL] [I.P. BANSAL] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED, 30.10.2009. DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES