ITO, New Delhi V. M/s. Millennium Plaza Pvt. Ltd., New Delhi

ITA 4575/DEL/2013

• Counselvise Citation: 457520114 RSA 2013
• Duration Of Justice: 1 year(s) 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 23-04-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 02-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K JAISWAL
• Keywords: Additional evidence
• Section: 143(3)

Judgement Text

ITA NO. 4575/ DEL/ 2013 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E , NEW DELHI BEFORE SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER AND SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 4 575 /DEL/2013 A.Y. : 200 3 - 0 4 INCOME TAX OFFICER, WARD - 6(4), NEW DELHI VS. M/S MILLENNIUM PLAZA PVT. LTD., 26, COMMUNITY CENTRE, SAKET, NEW DELHI (PAN: AACCM9795M) (APPELLANT) (RESPONDENT) DEPARTMENT BY : SH. K.K. JAISWAL, SR. D.R. ASSESSEE BY : SH. GAUTAM JAIN, CA DATE OF HEARING : 23 - 04 - 201 5 DATE OF ORDER : 2 9 - 04 - 201 5 ORDER PER H.S. SIDHU : J M TH IS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) - I X, NEW DELHI DATED 2 4 . 5 .201 3 P ERTAINING TO ASSESSMENT YEAR 200 3 - 0 4 ON THE FOLLOWING GROUNDS: - 1. WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN DELETING THE DISALLOWANCE OF RS. 18,00,000/ - OUT OF BUILDING MAINTENANCE EXPENSES MERELY ON THE SUBMISSION OF ASSESSEE THAT MAINTENANCE INCOME HAS ITA NO. 4575/ DEL/ 2013 2 INCR EASED BY RS. 62,15,776/ - THUS INCREASE IN MAINTENANCE EXPENDITURE BY RS. 65,96,688/ - IS JUSTIFIED. 2. WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) DELETED THE ABOVE DISALLOWANCE WITHOUT PROVIDING THE AO ANY OPPORTUNITY TO REBUT, AS PER THE PROVISION OF RULE 46A, ON THE SUBMISSION OF THE ASSESSEE THAT DETAILS WERE FILED DURING THE COURSE OF ASSESSMENT. 3. THAT THE ORDER OF THE LD. CIT(A) IS ERRONEOUS AND IS NOT TENABLE ON FACTS AND IN LAW. 4. THAT THE GROUNDS OF APPEAL ARE WITHOUT PREJUDICE T O EACH OTHER. 5. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR FORGO ANY GROUND(S) OF THE APPEAL RAISED ABOVE AT THE TIME OF THE APPEAL RAISED ABOVE AT THE TIME OF THE HEARING. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE COMPANY WAS EN GAGED IN THE BUSINESS OF CONSTRUCTION. THE RETURN OF INCOME FOR THE A.Y. 2003 - 04 WAS FILED ON 24.11.2003 DECLARING LOSS OF RS. 3,58,02,720/ - . THE SAME WAS PROCESSED U/S. 143(1) OF THE ACT. SUBSEQUENTLY, THE CASE WAS SELECTED FOR SCRUTINY AND STATUTORY NO TICE U/S. 143(2) WAS ISSUED AND SERVED. THE ASSESSMENT WAS COMPLETED U/S. 143(3) VIDE ORDER DATED 31.3.2006 BY THE AO AT LOSS OF RS. 3,25,02,715/ - MAKING CERTAIN ADDITIONS. ITA NO. 4575/ DEL/ 2013 3 3. AGAINST THE ASSESSMENT ORDER, ASSESSE APPEAL BEFORE THE LD. CIT(A), WHO VIDE IMPUGNED ORDER DATED 2 4 .5.2013 HAS PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. 4. AGGRIEVED WITH THE AFORESAID IMPUGNED ORDER, REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 5. LD. DR RELIED UPON THE ORDER OF THE ASSESSING OFFICER AND REITERATED THE CONTENTIO NS RAISED BY THE REVENUE IN THE GROUNDS OF APPEAL. 6. ON THE CONTRARY, LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THE ORDER OF THE LD. CIT(A) MAY BE UPHELD. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS. WE FIND THAT THE GROUND NO. 1 IS R ELATED WITH DELETION OF DISALLOWANCE OF RS. 18 LAKHS OUT OF THE BUILDING MAINTENANCE EXPENSES. IN THIS CASE THE AO NOTED THAT THE BUILDING MAINTENANCE EXPENSES HAD INCREASED FROM RS. 1,41,80,809/ - TO RS. 2,07,77,497/ - IN THE CURRENT YEAR, HOLDING THAT TH ERE WAS NO JUSTIFICATION FOR THE INCREASE IN THESE EXPENSES AND DOUBTING THE GENUINENESS OF THESE EXPENSES, HE DISALLOWED RS. 18 LAKHS AND ADDED THE SAME TO THE INCOME OF THE ASSESSEE. WE FIND THAT LD. CIT(A) HAS OBSERVED IN HIS IMPUGNED ORDER THAT THE ASSESSEE VIDE ITS LETTER DATED 22.5.2006 OBJECTED TO THE ADDITION TO THE ADDITION STATING THAT IT WAS DONE ON AN ADHOC ITA NO. 4575/ DEL/ 2013 4 BASIS AND WITHOUT GIVING ANY REASONS. FOR THE SAKE OF CONVENIENCE RELEVANT EXTRACTS IS GIVEN BELOW: - DETAILS OF BUILDING MAINTENANCE EXPENSES FOR F.Y. 2001 - 02 & 2002 - 03 1. BUILDING MAINTENANCE EXPENSES 20,777,498.00 14,180,809.00 6,596,689.00 BECAUSE MAINT. INCOME IS INCREASED BY RS. 62,15,776/ - SO EXP. IS ALSO INCREASE DBY RS. 65,96,689/ - . 7.1 IN OUR VIEW, LD. CIT(A) HAS RIGHTLY HELD THAT AN INCREASE IN THE MAINTENANCE INCOME HAS RESULTED IN THE RISE OF EXPENDITURE. WE FIND CONSIDERABLE FORCE IN THE FINDING OF THE LD. CIT(A) THAT THE AO HAS BROUGHT NOTHING ON RECORD TO DOUBT THE GENUINENESS OF THESE EXPENSES. THEREFORE, LD. CIT(A) HAS RIGHTLY HELD THAT THE ADDITION OF RS. 18 LACS CANNOT BE SUSTAINED. IN VIEW OF ABOVE DISCUSSIONS, WE ARE OF THE CONSIDERED VIEW THAT NO INTERFERENCE IS CALLED FOR IN THE WELL REASONED ORDER PASSED BY THE LD. CIT( A), HENCE, WE UPHOLD THE IMPUGNED ORDER BY REJECTING TH E ISSUE INVOLVED IN GROUND NO. 1 RAISED IN THE APPEAL BY REVENUE . 8 . WITH REGARD TO GROUND NO 2 IS CONCERNED RELATING TO DELETION OF DISALLOWANCE WITHOUT PROVIDING THE AO ANY OPPORTUNITY TO REBUT, AS PER THE PROVISION OF RULE 46A, ON THE SUBMISSION OF THE ASSESSEE THAT DETAILS WERE FILED DURING THE COURSE OF ASSESSMENT. IN OUR VIEW, THE LD. CIT(A) IN HIS WELL REASONED ORDER HAS NOT ADMITTED ANY ITA NO. 4575/ DEL/ 2013 5 ADDITIONAL EVIDENCE, ON THE ISSUE IN DISPUTE, HENCE, TH E CONTENTION RAISED BY THE REVENUE REGARDING WITHOUT PROVIDING THE AO AN OPPORTUNITY TO REBUT, AS PER THE PROVISIONS OF RULE 46A, HAS NO FORCE, THEREFORE, THE GROUND NO. 2 RAISED BY THE REVENUE IS HEREBY DISMISSED. 9 . IN THE RESULT, THE APPEAL FILED BY THE REVENUE STANDS DISMISSED . ORDER PRONOUNCED IN THE O PEN C OURT ON 2 9 / 4 /20 1 5 . S D / - S D / - [ S.V. MEHROTRA ] [ H.S. SIDHU ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 2 9 / 4 /201 5 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES ITA NO. 4575/ DEL/ 2013 6