DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1(4), MUMBAI V. NEELKAMAL REALTORS AND BUILDERS AND PRIVATE LIMITED, MUMBAI

ITA 4659/MUM/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6995 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 29-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C S SHARMA
• Assessee Lawyers: K G BOHRA
• Keywords: Earning of tax free income
• Section: 143(3); 14A; 115JB

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE HONBLE SH. SANDEEP GOSAIN , JM & HONBLE SH. G. MANJUNATHA, A M ./ I.T.A. NO . 4659/MUM/2017 ( / ASSESSMENT YEAR: 20 12 - 13 ) D CIT CEN CIR 1(4 ) , R. NO. 902 , 9 TH FLOOR , PRATISTHA BHAVAN, MUMBAI - 400 020 / VS. M/S NEELKAMAL REALTORS & BUILDERS PVT. LTD. 265 - E, C/O - HOTEL BALWAS INTERNATIONAL, BELLASIS ROAD, MUMBAI CENTRAL, MUMBAI - 400008 ./ ./ PAN NO. AA BCN8387P ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI C. S. SHARMA , DR / RESPONDENTBY : SHR I K. G. BOHRA , AR / DATE OF HEARING : 03.01 .201 9 / DATE OF PRONOUNCEMENT : 08.01.2019 / O R D E R PER SANDEEP GOSAIN, J UDICIAL MEMBER : THE PRESENT APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF COMMIS S IONER OF INCOME TAX (APPEALS) - 47, MUMBAI, DATED 30.03.17 FOR AY 2012 - 13 . 2 I.T.A. NO. 4659 / MUM/201 7 M/S NEELKAMAL REALTORS & BUILDERS PVT. LTD 2 . AS PER THE FACTS OF THE PRESENT CASE, THE ASSESSEE COMPANY IS ENGAGED IN REAL ESTATE BUSINESS INCLUDING RESIDENTIAL, COMMERCIAL AND PUBLIC UTILITIES. THE RETURN OF INCOME FOR THE YEAR UND ER CONSIDERATION WAS FILED ON 29 .09.12 DECLARING TOTAL INCOME OF R S 70,38,070 / - . SUBSEQUENTLY THE CASE WAS SELECTED FOR SCRUTINY AND AFTER SER VING STATUTORY NOTICES AND PROVIDING OPPORTUNITY OF HEARING, ASSESSMENT ORDER U/S 143(3) OF THE I.T. ACT WAS PASSED BY AO ON 23 .03.15 , THEREBY DETERMINING THE TOTAL INCOME AT RS. 72,31,886/ - UNDER NORMAL PROVISIONS OF THE ACT AND BOOK PROFIT U/S 115JB OF T HE ACT AT RS. 3,19,05,540/ - . 3 . AGGRIEVED BY THE ORDER OF AO, ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A) AND LD. CIT(A) AFTER CONSIDERING THE CASE OF BOTH THE PARTIES ALLOWED THE APPEAL OF THE ASSESSEE. 4 . AGGRIEVED BY THE ORDER OF LD. CIT(A), REVENUE HAS FILED THE PRESENT APPEAL BEFORE US . 5 . THE SOLITARY GROUND RAISED BY THE REVENUE RELATES TO CHAL LENGING THE ORDER OF LD. CIT(A) IN DELETING THE DISALLOWANCE U/S 14A R.W.S 115JB OF THE I.T. ACT. 3 I.T.A. NO. 4659 / MUM/201 7 M/S NEELKAMAL REALTORS & BUILDERS PVT. LTD 6 . WE HAVE HEARD THE COUNSELS FOR BOTH THE PARTIES AT LENGTH AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD, JUDGMENT CITED BY THE PARTIES AS WELL AS THE ORDERS PASSED BY REVENUE AUTHORITIES. WE FIND FROM THE RECORDS THAT ADMITTEDLY ASSESSEE HAD NOT EARNED ANY EXEMPT I NCOME DURING THE YEAR UNDER CONSIDERATION, THEREFORE LD. CIT(A) HAD RIGHTLY CONCLUDED THAT ALTHOUGH ASSESSEE HAD MADE INVESTMENTS IN EQUITY SHARES OF DOMESTIC BUSINESS AND INCOME FROM WHICH DOES NOT FORM PART OF TOTAL INCOME AND ASSESSEE HAD NOT ACTUALLY R ECEIVED ANY DIVIDEND INCOME DURING THE RELEVANT PERIOD. IN THIS RESPECT, LD. CIT(A) RELIED UPON THE JUDGMENT IN THE CASE OF M/S CHEMINVEST LTD. VRS. CIT (ITA NO. 749/2014) AND HAD RIGHTLY HELD THAT SECTION 14A WILL NOT APPLY, IF NO EXEMPT INCOME IS RECEIVE D OR RECEIVABLE DURING THE RELEVANT PREVIOUS YEAR. 7. AFTER HAVING GONE THROUGH THE FACTS OF THE PRESENT, WE FIND THAT LD. CIT(A) AFTER FOLLOWING THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CHEMINVEST LTD. (2015) 378 ITR 33 DELHI , HAD NOT FOUN D ANY CHANGE IN THE FACTS AND CIRCUMSTANCES FOR THE YEAR UNDER CONSIDERATION EXCEPT FOR THE AMOUNT INVOLVED. 4 I.T.A. NO. 4659 / MUM/201 7 M/S NEELKAMAL REALTORS & BUILDERS PVT. LTD THEREFORE, LD. CIT(A) RIGHTLY DELETED THE DISALLOWANCE MADE BY AO. 8. MOREOVER, N O NEW FACTS OR CONTRARY JUDGMENTS HAVE BEEN BROUGHT ON RECORD BE FORE US I N ORDER TO CONTROVERT OR REBUT THE FINDINGS SO RECORDED BY LD CIT (A) . THEREFORE, THERE ARE NO REASON S FOR US TO INTERFERE INTO OR DEVIATE FROM THE FINDINGS RECORDED BY THE LD. CIT (A). HENCE , WE ARE OF THE CONSIDERED VIEW THAT THE FINDINGS SO RECORDED BY THE LD. CIT (A) ARE JUDICIOUS AND ARE WE LL REASONED. RESULTANTLY, THIS GROUND RAISED BY THE REVENUE STANDS DISMISSED . 9. IN THE NET RESULT, THE APPEAL FILED BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH JAN, 2019 . SD/ - SD/ - ( G. MANJUNATHA ) (SANDEEP GOSAIN) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 08 . 01 .201 9 SR.PS . DHANANJAY 5 I.T.A. NO. 4659 / MUM/201 7 M/S NEELKAMAL REALTORS & BUILDERS PVT. LTD / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I LE / BY ORDER, . / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI