Shyam Lal Nursing Home & Medical Research Centre Pvt. Ltd., New Delhi V. ITO, New Delhi

ITA 4191/DEL/2010

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 0026 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 30-03-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 10-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KISHORE B
• Keywords: Business income; Depreciation; Business expenditure; Additional evidence; Reasonable cause
• Section: 144

Judgement Text

ITA NO. 4191/DEL/2010 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G NEW DELHI BEFORE SHRI A.D. JAIN, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 4191/DEL/2010 A.Y. : 2003-04 SHYAM LAL NURSING HOME & MEDICAL RESEARCH CENTRE PVT. LTD., 19, ANSARI ROAD, DARYAGANJ, DELHI 110 002 (PAN/GIR NO. : AAACR2263D) VS. ITO, WARD 8(3), NEW DELHI (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) ASSEESSEE BY : SH. VINOD BINDAL, CA DEPARTMENT BY : SH. KISHORE B. (D.R.) ORDER ORDER ORDER ORDER PER SHAMIM YAHYA: PER SHAMIM YAHYA: PER SHAMIM YAHYA: PER SHAMIM YAHYA: AM AMAM AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 18.6.2 010 PERTAINING TO ASSESSMENT YEAR 2003-04. 2. THE GROUNDS RAISED READ AS UNDER:- I) THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRE D IN LAW AND ON FACTS IN CONFIRMING THE ASSESSMENT MADE U/S 1 44 AS VALID IGNORING THE FACTS AND SUBMISSIONS MADE BY THE APPELLANT. THUS THE ORDER PASSED U/S 144 SHOULD BE CANCELLED. ITA NO. 4191/DEL/2010 2 II) THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERR ED IN LAW AND ON FACTS IN NOT CONSIDERING THE EVIDENCES PLACE D ON RECORD WHILE STATING THAT NO PETITION U/S 46A WAS F ILED IGNORING THAT SUCH REQUEST WAS MADE BY THE ASSESSEE VIDE ITS SUBMISSION DATED 13.12.2005. THUS THE ADDITION AL EVIDENCES PLACED ON RECORD SHOULD BE CONSIDERED AND ACCEPTED AS THERE WAS A REASONABLE CAUSE FOR NOT F ILING THE SAME BEFORE THE ASSESSING OFFICER. III) THE LD. COMMISSIONER OF INCOME TAX (APPEALS) E RRED IN LAW AND ON FACTS IN DISALLOWING EXPENSES OF ` 9,00,020/ - INCLUDING ` 1,19,421/- AS DEPRECIATION BY HOLDING T HAT THE APPELLANT DID NOT CARRY OUT ANY BUSINESS DURING THE YEAR IGNORING THAT LULL IN IS NOT EQUIVALENT TO CLOSURE. THUS THE BUSINESS EXPENSES INCURRED SHOULD BE ALLOWED. IV) THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERR ED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF THE ASSESSI NG OFFICER IN CONSIDERING THE BUSINESS RECEIPT OF ` 9 ,00,000/- AS INCOME FROM HOUSE PROPERTY IGNORING THE FACTS AND EVIDENCES PLACED ON RECORD. THUS THE SAME SHOULD B E REVERSED AND THE SAID INCOME SHOULD BE ASSESSED AS BUSINESS INCOME. V) WITHOUT PREJUDICE TO THE ABOVE GROUNDS, IF THE IN COME IS TO BE ASSESSED AS INCOME FROM HOUSE PROPERTY, THEN THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN LAW A ND FACTS IN NOT ALLOWING PAYMENT OF HOUSE TAX OF 4,27, 032/- FROM THE INCOME FROM HOUSE PROPERTY IGNORING THE EVIDENCES AND REQUEST U/S 46A PLACED ON RECORD THOU GH ITA NO. 4191/DEL/2010 3 SUCH DEDUCTION IS STATUTORILY AVAILABLE TO THE AS SESSEE. THUS THE SAID AMOUNT SHOULD BE ALLOWED AS DEDUCTION. VI) THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERR ED IN LAW AND ON FACTS IN NOT FOLLOWING THE PRINCIPLE OF CONS ISTENCY WITHOUT PLACING ANY ADVERSE MATERIAL OR REASON ON RE CORD FOR DEVIATING FROM THE DECISIONS OF HIS PREDECESSOR S. THUS THE ORDER PASSED IGNORING THE PRINCIPLE OF CONSISTE NCY SHOULD BE REVERSED. 3. IN THIS CASE ASSESSEE HAS FILED A RETURN DECLAR ING LOSS OF ` 47,730/-. ASSESSING OFFICER NOTED THAT DURING T HE PREVIOUS YEAR RELEVANT FOR ASSESSMENT YEAR 2003-04, IN THE P&L AC COUNT, RECEIPTS HAVE BEEN SHOWN UNDER THE HEAD BUSINESS CENTRE HIG HER RECEIPT AMOUNTING TO ` 9 LACS AND AGAINST THESE RECEIPTS EXP ENDITURE TO THE TUNE OF ` 9,00,000/- HAVE BEEN DEBITED. ASSESSING OFFICER NOTED THAT ON PERUSAL OF P&L ACCOUNT CLEARLY INDICATES THAT NO BUSINESS ACTIVITY WAS CARRIED OUT DURING THE YEAR UNDER CONSIDERATION AND THE RECEIPTS WHICH HAVE BEEN SHOWN SHOULD BE TAXED UNDER THE INC OME HEAD INCOME FROM HOUSE PROPERTY. ACCORDINGLY, HE PROCE EDED TO ADD THE INCOME UNDER THE HEAD HOUSE PROPERTY AND TOTAL IN COME OF ` 6,30,000/-. 4. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (APPEALS) CONFIRMED THE ADDITION. 5. AGAINST THIS ORDER THE ASSESSEE IS IN APPEAL BEF ORE US. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORDS. WE NOTE THAT IN GROUND NO. (II) AND (V) ASSESSEE H AS SUBMITTED THAT ADDITIONAL EVIDENCES WERE SUBMITTED BEFORE THE LD. C OMMISSIONER OF ITA NO. 4191/DEL/2010 4 INCOME TAX (APPEALS) WHO HAS NOT ACCEPTED THE SAME. BOTH THE COUNSEL FAIRLY AGREED THAT IN THE INTEREST OF JUSTI CE, THE MATTER MAY BE REMITTED TO THE FILES OF THE ASSESSING OFFICER TO C ONSIDER THE ISSUE AFRESH, IN LIGHT OF THE ADDITIONAL EVIDENCES BEING SUBMITTED BY THE ASSESSEE. UNDER THE CIRCUMSTANCES, WE REMIT THE ISS UE TO THE FILES OF THE ASSESSING OFFICER TO CONSIDER THE SAME AFRESH. NEEDLESS TO ADD THAT THE ASSESSEE SHOULD BE GIVEN ADEQUATE OPPORTUN ITY OF BEING HEARD. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30/03/2011 UP ON CONCLUSION OF HEARING. SD/- SD/- [ [[ [A.D. JAIN A.D. JAIN A.D. JAIN A.D. JAIN] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBE ACCOUNTANT MEMBE ACCOUNTANT MEMBE ACCOUNTANT MEMBER R R R DATE 30/03/2011 SRB COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES