M/s. Sir Pratap Heritage Hotels Pvt. Ltd. , Madhya Pradesh V. ACIT, Central Circle-1, Jodhpur

ITA 494/JODH/2017

• Counselvise Citation: [2020] 109 COUNSELVISE.COM (IT) 9713 (ITAT-JODHPUR)
• Duration Of Justice: 3 year(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 08-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C BADHOK LD
• Assessee Lawyers: RAJENDRA JAIN LD ARS
• Keywords: Business income; Business expenditure
• Section: 143(3); 142(1); 153A; 292BB; 143(2); 153; 132

Judgement Text

1 SIR PRATAP HERITAGE HOTELS PRIVATE LIMITED. ASSESSMENT YEARS: 2008-09 TO 2014-15 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH , , BEFORE HONBLE SHRI SANDEEP GOSAIN, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM (HEARING THROUGH VIDEO CONFERENCING MODE) ./ I.T.A. NOS.488 TO 494/JODH/2017 ( / ASSESSMENT YEARS: 2008-09 TO 2014-15) SIR PRATAP HERITAGE HOTELS PVT.LTD. 1, AMARKANTAK ROAD DHANPURI, SHAHDOL MADHYA PRADESH-484 114. / VS. A CIT CENTRAL CIRCLE - 1 JODHPUR RAJASTHAN ./ ./PAN/GIR NO. AAJCS-4923-L ( /APPELLANT ) : ( / RESPONDENT ) ASSESSEE BY : MS. RAKSHA BIRLA (CA) & SHRI RAJENDRA JAIN (ADVOCATE)LD.ARS. REVENUE BY : SHRI K.C. BADHOK- LD. CIT- DR / DATE OF HEARING : 06/11/2020 / DATE OF PRONOUNCEMENT : 21/12/2020 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER): - 1.1 AFORESAID APPEALS BY ASSESSEE FOR ASSESSMENT YE ARS [IN SHORT REFERRED TO AS AY] 2008-09 TO 2014-15 CONTE ST SEPARATE ORDERS OF LEARNED FIRST APPELLATE AUTHORITY. HOWEVE R, ALL THESE ASSESSMENTS STEM FROM COMMON SEARCH PROCEEDINGS. FA CTS AS WELL 2 SIR PRATAP HERITAGE HOTELS PRIVATE LIMITED. ASSESSMENT YEARS: 2008-09 TO 2014-15 AS ISSUES ARE STATED TO BE PARI-MATERIA THE SAME IN ALL THE YEARS. THEREFORE, ADJUDICATION IN ANY ONE YEAR SHALL APPLY EQUALLY TO ALL OTHER YEARS ALSO. WE TAKE UP THE FACTS AND ISSUES O F AY 2008-09, ITA NO.488/JODH/2017 AS THE LEAD YEAR 1.2 THE APPEAL BY ASSESSEE FOR AY 2008-09 CONTEST T HE ORDER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-2, UDAIPUR, [I N SHORT REFERRED TO AS CIT(A)], APPEAL NO.50/2016-17, DAT ED 19/09/2017 ON FOLLOWING EFFECTIVE GROUNDS: - 1.1 IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A)-2, UDAIPUR ERRED IN CONFIRMING THE ADDITIONS MADE BY A O IN HIS ORDER PASSED U/S 153A R.W.S. 143(3) OF THE INCOME TAX ACT, 1961 ('TH E ACT') DT. 27.03.2016 FOR THE RELEVANT ASSESSMENT YEARS AS SAME IS BAD IN LAW AND DESERVE TO BE DELETED SINCE THE SAME ARE NOT BASED ON ANY INCRIMI NATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH. 1.2 WITHOUT PREJUDICE TO THE ABOVE, IT IS RESPE CTFULLY SUBMITTED THAT CIT(A) - 2 UDAIPUR ERRED IN CONFIRMING THE ORDER PASSED BY A O AS SAME BAD IN LAW AND DESERVES TO BE QUASHED FOR WANT OF JURISDICTION SIN CE NO INCRIMINATING MATERIAL WHATSOEVER WAS UNEARTHED FOR THE RELEVANT ASSESSMEN T YEAR DURING THE COURSE OF SEARCH AND AS SUCH WITHOUT ANY INCRIMINAT ING MATERIAL NO ORDER COULD HAVE BEEN PASSED BY THE LD. AO. 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N TAW, THE LD.CIT (A) -2 ERRED IN CONFIRMING THE ADDITION AND FAILED TO APPR ECIATE THAT THE IMPUGNED ORDER PASSED BY THE LD. AO IS BAD IN LAW AND VOID F OR WANT OF JURISDICTION SINCE THE ASSESSMENT ORDER IS PASSED BY AO U/S 153A IS WITHOUT ISSUING THE JURISDICTIONAL NOTICE U/S 143(2) OF THE ACT WITHIN THE TIME PROVIDED UNDER THE ACT. 3. THE LEARNED CIT-APPEAL, ERRED IN FACTS, IN LAW A ND UNDER THE CIRCUMSTANCES OF CASE BY CONFIRMING DISALLOWANCE OF BUSINESS EXPE NSES OF RS.8,42,298/- BY OBSERVING THAT NO BUSINESS IS COMMENCED DURING THE YEAR. 3.1 THE LEARNED CIT(A) FAILED TO APPRECIATE THA T ASSESSEE IS NOT THE OWNER OF THE IMMOVABLE PROPERTY AND ALSO FAILED TO APPREC IATE THAT THE EXISTING/OLD HOTEL TAKEN BY THE ASSESSEE ON LEASE WAS FOR RUNNIN G HOTEL BUSINESS AFTER REPAIRING/RENOVATING THE SAME HENCE, APPELLANT HAD DULY COMMENCED THE ITS BUSINESS THEREFORE, ALL THE REPAIRING EXPENSES AND OTHER EXPENSES INCURRED TO MAINTAIN CORPORATE STATUS ARE ALLOWABLE AS BUSINESS EXPENSES. 3.2 THE LEARNED CIT(A) ERRED IN OBSERVING THAT EXPENSES INCURRED BY THE APPELLANT ARE PRIOR PERIOD EXPENSES HENCE SAME NOT ALLOWABLE AS BUSINESS EXPENSES. 3.3 THE LEARNED CIT(A) FAIL TO APPRECIATE THAT THE LEARNED AO DULY ACCEPTED THE INTEREST INCOME AS BUSINESS INCOME, HE NCE EXPENSES CLAIMED ARE DEDUCTIBLE. 3 SIR PRATAP HERITAGE HOTELS PRIVATE LIMITED. ASSESSMENT YEARS: 2008-09 TO 2014-15 3.4 ASSESSEE SUBMIT THAT THE LEARNED CIT(A) FAI L TO APPRECIATE THAT EXPENSES INCURRED FOR BUSINESS PURPOSE CANNOT BE DE NIED MERELY BECAUSE THE BUSINESS IS TEMPORARILY ABANDONED DURING THE YE AR DUE TO LITIGATION WITH LESSOR/OWNER OF THE PROPERTY. 4. IN THE FACTS & CIRCUMSTANCE OF CASE AND IN LAW, THE LD.AO FAILED TO ALLOW SET-OFF OF B/F LOSSES OF EARLIER YEARS. 1.3 THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSES SEE (AR), AT THE OUTSET, DRAWING OUR ATTENTION TO GROUND NOS. 1 & 2 CHALLENGED THE VALIDLY OF ASSESSMENT PROCEEDINGS BY SUBMITTING THAT SINCE NO INCRIMINATING EVIDENCE / MATERIAL WAS FOUND DURING THE COURSE OF SEARCH, THE ADDITIONS WOULD NOT BE SUSTAINABLE UNDE R LAW. THE ASSESSMENT PROCEEDINGS FOR THE YEAR ARE STATED TO B E UNABATED ASSESSMENT PROCEEDINGS. THE LD. CIT-DR RELIED UPON THE FINDINGS OF LOWER AUTHORITIES. 1.4 WE HAVE CAREFULLY HEARD THE RIVAL SUBMISSIONS A ND PERUSED RELEVANT MATERIAL ON RECORD INCLUDING DOCUMENTS PLA CED IN THE PAPER-BOOK. THE JUDICIAL PRONOUNCEMENTS AS CITED HA VE DULY BEEN DELIBERATED UPON. OUR ADJUDICATION TO THE SUBJECT M ATTER OF APPEAL WOULD BE AS GIVEN IN SUCCEEDING PARAGRAPHS. 2.1 THE MATERIAL FACTS ARE THAT THE ASSESSEE BEING RESIDENT CORPORATE ASSESSEE WAS ASSESSED FOR THE YEAR UNDER CONSIDERATION U/S. 153 R.W.S. 143(3) ON 27/03/2016. WHILE FRAMING ASSESSMENT, IT WAS SADDLED WITH DISALLOWANCE OF CERTAIN EXPENSES F OR RS.8.44 LACS. THE ASSESSMENT PROCEEDINGS STEM FROM SEARCH O PERATIONS U/S 132 CARRIED OUT BY THE DEPARTMENT ON VINOD PURO HIT GROUP OF CASES ON 16/04/2013 WHEREIN SEVERAL INCRIMINATING D OCUMENTS ALONG WITH CASH, JEWELERY AND OTHER VALUABLES WERE STATED TO BE FOUND / SEIZED FROM VARIOUS PREMISES SEARCHED BY TH E DEPARTMENT. 4 SIR PRATAP HERITAGE HOTELS PRIVATE LIMITED. ASSESSMENT YEARS: 2008-09 TO 2014-15 2.2 THE ORIGINAL RETURN OF INCOME WAS FILED BY THE ASSESSEE ON 04/09/2008 AND THE SAME WAS PROCESSED U/S 143(1). A PPARENTLY, NO EXISTING ASSESSMENT PROCEEDINGS WERE PENDING AT THE TIME OF SEARCH ACTION ON 16/04/2013. 2.3 IN RESPONSE TO NOTICE U/S 153A DATED 10/01/2014 , THE ASSESSEE FILED RETURN OF INCOME ON 17/03/2014. NOTI CES U/S 143(2) & 142(1) ALONG WITH QUESTIONNAIRE WAS ISSUED ON 07/ 08/2015 WHEREIN THE ASSESSEE WAS DIRECTED TO FILE REQUISITE DETAILS. 2.4 UPON PERUSAL OF DETAILS SO FILED, IT TRANSPIRED THAT THE ASSESSEE HAD NOT STARTED ANY BUSINESS DURING THE YEAR AND TH EREFORE, THE BUSINESS EXPENDITURE WAS OF RS.13.31 LACS CLAIMED A GAINST INTEREST INCOME WAS NOT TO BE ALLOWED. THE INTEREST INCOME W AS TO BE ASSESSED UNDER INCOME FROM OTHER SOURCES. ALTHOUG H, THE ASSESSEE JUSTIFIED THE DEDUCTION OF EXPENDITURE, HO WEVER, LD. AO HELD THAT ONLY INTEREST EXPENDITURE OF RS.4.86 LACS HAVING DIRECT NEXUS WITH EARNING OF INTEREST INCOME WAS TO BE ALL OWED AND THE BALANCE EXPENDITURE WAS TO BE DISALLOWED. ACCORDING LY THE ASSESSMENT WAS FRAMED AFTER DISALLOWING THE BALANCE EXPENDITURE. 3.1 BEFORE LD. CIT(A), THE ASSESSEE TOOK A STAND TH AT ASSESSMENT WAS BAD IN LAW SINCE THE ADDITIONS WERE NOT BASED O N ANY INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH PROCEEDINGS. RELIANCE WAS PLACED, INTER-ALIA, ON TH E DECISION OF HONBLE BOMBAY HIGH COURT IN CIT V/S CONTINENTAL WAREHOUSING CORPORATION (NHAVA SHEVA) LTD. 2015 374 ITR 645 AS WELL AS GURINDER SINGH BAWA 2016 386 ITR 418 AND THE DECISION OF 5 SIR PRATAP HERITAGE HOTELS PRIVATE LIMITED. ASSESSMENT YEARS: 2008-09 TO 2014-15 HONBLE DELHI HIGH COURT IN CIT V/S KABUL CHAWLA 61 TAXMANN.COM 412. THE LD. CIT(A), NOTICING THE PROVISIONS OF SEC.153A , OPINED THAT LD.AO WAS DUTY BOUND TO ASSESS OR REASSESS THE TOTA L INCOME OF 6 ASSESSMENT YEARS. THE TOTAL INCOME WILL COVER NOT O NLY THE INCOME EMANATING FROM DECLARED SOURCES BUT FROM ALL SOURCE S INCLUDING UNDISCLOSED ONES. FOR THE SAME, ANALOGY WAS DRAWN F ROM DECISION OF HONBLE RAJASTHAN HIGH COURT IN JAI STEEL V/S ACIT 2013 259 CTR 281 WHICH HELD THAT THE WORD ASSESS HAS BEEN USED IN THE CONTEXT OF ABATED PROCEEDINGS AND THE WORD REASSES S HAS BEEN USED IN THE CONTEXT OF COMPLETED ASSESSMENT PROCEED INGS. IT WAS ALSO NOTED THAT THE REVENUE WAS UNDER CHALLENGE BY WAY OF SPECIAL LEAVE PETITION (SLP) AGAINST THE FAVORABLE DECISION OF HONBLE BOMBAY HIGH COURT AS WELL AS HONBLE DELHI HIGH COU RT AND THEREFORE, THE ASSESSEES SUBMISSIONS COULD NOT BE ACCEPTED. ACCORDINGLY, THIS GROUND WAS REJECTED. 3.2 ANOTHER LEGAL GROUND TAKEN WAS THE FACT THAT NO TICE U/S 143(2) WAS NOT ISSUED WITHIN THE PRESCRIBED TIME OF 12 MON THS AND THE SAME WOULD NOT BE CURABLE DEFECT U/S 292BB AND THER EFORE, THE ASSESSMENT WAS LIABLE TO BE SET-ASIDE. HOWEVER, THI S GROUND WAS ALSO REJECTED BY LD. CIT(A), INTER-ALIA, BY RELYING UPON THE DECISION OF HONBLE DELHI HIGH COURT IN ASHOK CHADDHA V/S ITO 337 ITR 399. 3.3 ON MERITS, LD. CIT(A) UPHELD THE STAND OF LD. A O BY OBSERVING THAT THE BUSINESS OF HOTEL AND RESTAURANT HAD NOT C OMMENCED AND THEREFORE THE EXPENDITURE COULD NOT BE ALLOWED. 6 SIR PRATAP HERITAGE HOTELS PRIVATE LIMITED. ASSESSMENT YEARS: 2008-09 TO 2014-15 AGGRIEVED AS AFORESAID THE ASSESSEE IS UNDER FURTHE R APPEAL BEFORE US. 4. SINCE THE LEGAL GROUNDS TAKEN BEFORE US GOES TO THE ROOT OF THE MATTER, THE SAME ARE DEALT WITH AT THE OUTSET. FROM THE FACTS, IT EMERGES THAT THE ORIGINAL RETURN WAS FILED BY THE A SSESSEE ON 04/09/2008 AND THE SEARCH TOOK PLACE ON 16/04/2013. ADMITTEDLY, NO ASSESSMENT PROCEEDINGS WERE PENDING AGAINST ASSE SSEE ON THE DATE OF SEARCH AND IT WAS NOT A CASE OF ABATED ASSE SSMENT. UPON PERUSAL OF THE ASSESSMENT ORDER, IT IS QUITE EVIDEN T THAT LD. AO HAS NOT REFERRED TO ANY INCRIMINATING MATERIAL AGAINST THE ASSESSEE AND THE ADDITIONS MADE THEREIN ARE ALSO NOT BASED ON AN Y INCRIMINATING MATERIAL. THE BUSINESS EXPENDITURE CLAIMED THAT IS SOUGHT TO BE DISALLOWED WAS ALREADY CLAIMED IN THE ORIGINAL RETU RN OF INCOME. THE FACTS OF THE CASE, IN OUR CONSIDERED OPINION ARE SQ UARELY COVERED IN ASSESSEES FAVOR BY THE DECISION OF HONBLE BOMBAY HIGH COURT IN CIT V/S CONTINENTAL WAREHOUSING CORPORATION (NHAVA SHEVA) LTD. (2015 374 ITR 645) AS WELL IN GURINDER SINGH BAWA (2016 386 ITR 418) WHICH HAS HELD THAT IN THE ABSENCE OF ANY INCRIMINATING MATERIAL, THE UNABATED ASSESSMENTS CO ULD NOT BE DISTURBED. SIMILAR IS THE VIEW OF HONBLE DELHI HIG H COURT IN CIT V/S KABUL CHAWLA 61 TAXMANN.COM 412 WHICH HAS SUMMED UP LEGAL POSITION AS FOLLOWS: - 'SUMMARY OF THE LEGAL POSITION: 37. ON A CONSPECTUS OF SECTION 153A(1) OF THE ACT, READ WITH THE PROVISOS THERETO, AND IN THE LIGHT OF THE LAW EXPLAINED IN T HE AFOREMENTIONED DECISIONS, THE LEGAL POSITION THAT EMERGES IS AS UNDER : I. ONCE A SEARCH TAKES PLACE UNDER SECTION 132 OF TH E ACT, NOTIC E UNDER SECTION 153A(1) WILL HAVE TO BE MANDATORILY ISSUED TO THE PERSON SEARCHED 7 SIR PRATAP HERITAGE HOTELS PRIVATE LIMITED. ASSESSMENT YEARS: 2008-09 TO 2014-15 REQUIRING HIM TO FILE RETURNS FOR SIX A.YS IMMEDIAT ELY PRECEDING THE PREVIOUS YEAR RELEVANT TO THE A Y IN WHICH THE SEARCH TAKES PLACE. II. ASSESSMENTS AND REASSESSMENTS P ENDING ON THE DATE OF THE SEARCH SHALL ABATE. THE TOTAL INCOME FOR SUCH AYS WILL HAVE TO B E COMPUTED BY THE AOS AS A FRESH EXERCISE. III. THE A.O. WILL EXERCISE NORMAL ASSESSMENT POWERS IN RESPECT OF THE SIX YEARS PREVIOUS TO THE RELEVANT A.Y. IN WHICH THE SEARCH TAKES PLACE. THE AO HAS THE POWER TO ASSESS AND REASSESS THE 'TOTAL INCOME' OF THE AFOREMENTIONED SIX YEARS IN SEPARATE ASSESSMENT ORDERS FOR EACH OF THE SIX YEARS. IN OTHER WORDS THERE WILL BE ONLY ONE ASSESSMENT ORDER IN RE SPECT OF EACH OF THE SIX A YS. ''IN WHICH BOTH THE DISCLOSED AND THE UNDISCLOS ED INCOME WOULD BE BROUGHT TO TAX'. IV. ALTHOUGH SECTION 153A DOES NOT SAY THAT ADDITIONS S HOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FOUND IN THE COURSE OF THE SE ARCH, OR OTHER POST- SEARCH M ATERIAL OR INFORMATION AVAILABLE WITH THE AO WHICH CAN BE RELATED TO THE EVIDENCE FOUND, IT DOES NOT MEAN THAT THE ASSESSMEN T CAN BE ARBITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WITH THE SEIZED MATERIAL. OBVIOUSLY AN ASSESSMENT HAS TO BE MADE UNDER THI S SECTION ONLY ON THE BASIS OF SEIZED MATERIAL. V. IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPL ETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESSMEN T CAN BE MADE. THE WORD 'ASSESS' IN SECTION 153A IS RELATABLE TO ABATE D PROC EEDINGS (I.E. THOSE PENDING ON THE DATE OF SEARCH) AND THE WORD 'REASSE SS' TO COMPLETED ASSESSMENT PROCEEDINGS. VI. INSOFAR AS PENDING ASSESSMENTS ARE CONCERNED, THE J URISDICTION TO MAKE THE ORIGINAL ASSESSMENT AND THE ASSESSMENT UNDER SECTIO N 153A MERG ES INTO ONE. ONLY ONE ASSESSMENT SHALL BE MADE SEPARATELY F OR EACH A Y ON THE BASIS OF THE FINDINGS OF THE SEARCH AND ANY OTHER M ATERIAL EXISTING OR BROUGHT ON THE RECORD OF THE A.O. VII. COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY T HE AO WHILE MAKI NG THE ASSESSMENT UNDER SECTION 153A ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR R EQUISITION OF DOCUMENTS OR UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN THE CO URSE OF SEARCH WHICH WERE NOT PRODUCED OR NOT ALRE ADY DISCLOSED OR MADE KNOWN IN THE COURSE OF ORIGINAL ASSESSMENT. THE VIEW OF HONBLE DELHI HIGH COURT IN CIT V/S KABUL CHAWLA (SUPRA) HAS BEEN FOLLOWED BY HONBLE HIGH COURT OF RAJASTHA N IN PR.CIT V/S SMT. DAKSHA JAIN (ITA NO.125/2017 DATED 04/07/2019) WHICH HAS DECLINED TO ADMIT REVENUES APPEAL. 8 SIR PRATAP HERITAGE HOTELS PRIVATE LIMITED. ASSESSMENT YEARS: 2008-09 TO 2014-15 FURTHER, UPON PERUSAL OF SLP NO. 18560 OF 2015 DATE D 12/10/2015 ADMITTED BY HONBLE SUPREME COURT AGAINST THE DECIS ION OF HONBLE BOMBAY HIGH COURT RENDERED IN CIT VS. CONTINENTAL WAREHOUSING CORPORATION (SUPRA), WE FIND THAT HONBLE APEX COURT HAS ONLY ADMITTED SPECIAL LEAVE PETITION (SLP ) AGAINST THE RULING OF THE HON'BLE BOMBAY HIGH COURT'S FINDING T HAT NO ADDITION CAN BE MADE IN RESPECT OF ASSESSMENTS WHICH HAVE BE COME FINAL IF NO INCRIMINATING MATERIAL IS FOUND DURING SEARCH OR DURING 153A PROCEEDINGS. HOWEVER, IT IS SEEN THAT THE HON'BLE A PEX COURT HAS NOT STAYED OR SUSPENDED THE OPERATION OF THE DECISI ON OF THE HON'BLE BOMBAY HIGH COURT IN ANY MANNER AND THEREFO RE, AT THE MOMENT, THE CITED DECISIONS OF VARIOUS HONBLE HIGH COURTS ARE BINDING ON US. THE DECISION OF HONBLE RAJASTHAN HIGH COURT IN JAI STEEL V/S ACIT 2013 259 CTR 281 ONLY LAYS DOWN THAT IT WOULD NOT BE OPEN FOR ASSESSEE TO SEEK DEDUCTION OR CLAIM EXPENDITURE IN ASSESSMENT U/S 153A WHICH HAS NOT BEEN CLAIMED IN ORIGINAL ASSESSM ENT, WHICH ASSESSMENT ALREADY STANDS COMPLETED. THE SAME ARE N OT THE FACTS OR ISSUES HERE. 5. RESPECTFULLY FOLLOWING ABOVE DECISIONS, WE ARE I NCLINED TO SET- ASIDE THE ADDITIONS SO MADE IN THE HANDS OF THE ASS ESSEE IN THE ASSESSMENT ORDER. THE GROUND THUS RAISED STAND ALLO WED. SINCE WE HAVE ALLOWED THIS LEGAL GROUND AND DELETED THE QUAN TUM ADDITIONS IN TOTO, THE REMAINING GROUNDS RAISED BEFORE US HAVE BEEN RE NDERED MERELY ACADEMIC IN NATURE AND THEREFORE, NOT DEALT WITH. 9 SIR PRATAP HERITAGE HOTELS PRIVATE LIMITED. ASSESSMENT YEARS: 2008-09 TO 2014-15 6. RESULTANTLY, THE APPEAL STANDS PARTLY ALLOWED IN TERMS OF OUR ABOVE ORDER. ITA NOS.489 TO 93/JODH/2017, AYS: 2009-10 TO 2013-1 4 7. FACTS ARE SIMILAR IN ALL THESE YEARS. THE ASSESS MENT HAS BEEN FRAMED U/S 153A R.W.S. 143(3) WHEREIN THE BUSINESS EXPENDITURE AS CLAIMED BY THE ASSESSEE HAS BEEN DISALLOWED. THE AP PELLATE ORDERS ARE, MORE OR LESS, ON SIMILAR LINES. FACTS BEING PA RI-MATERIA THE SAME, OUR ADJUDICATION AS FOR AY 2008-09 SHALL MUTATIS MUTANDIS APPLY TO ALL THESE YEARS. THE ASSESSEE SUCCEEDS ON LEGAL GROUNDS AND ALL THESE APPEALS STANDS PARTLY ALLOWED. ITA NOS.494/JODH/2017, AY: 2014-15 8. IN THIS YEAR, THE ASSESSMENT HAS BEEN FRAMED U/S 143(3) VIDE ORDER DATED 27/03/2016. THE BUSINESS EXPENDITURE OF RS.1.36 LACS HAS BEEN DISALLOWED ON THE REASONING THAT THE BUSIN ESS HAD NOT BEEN COMMENCED. THE LD. CIT(A), IN THE LIGHT OF ASS ESSEES FINANCIAL STATEMENTS AS WELL AS AFTER GOING THROUGH THE TERMS OF LEASE AGREEMENT REACHED A CONCLUSION THAT THE ASSES SEE DID NOT ACQUIRE THE BUSINESS PREMISES ON ON-GOING BUSINESS BASIS BUT SIMPLY TOOK AN OLD STRUCTURE ON LEASE. FURTHER, IT COULD NOT BE SAID THAT THERE WAS A TEMPORARY DORMANCY / LULL PERIOD F OR ASSESSEES BUSINESS. THEREFORE, THE ACTION OF LD. AO WAS UPHEL D. AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US ASSAILI NG THE DISALLOWANCE OF EXPENDITURE. 9. UPON DUE CONSIDERATION, WE FIND THAT THE PREMISE S WAS TAKEN ON LEASE SINCE 2006 AND THE BUSINESS COULD NOT BE C OMMENCED BY THE ASSESSEE TILL AY 2014-15 WHICH WOULD SUBSTANTIA TE THE FACT THAT 10 SIR PRATAP HERITAGE HOTELS PRIVATE LIMITED. ASSESSMENT YEARS: 2008-09 TO 2014-15 THERE WAS NOT ANY TEMPORARY DORMANCY OR LULL PERIOD FOR THE BUSINESS. NO FRESH MATERIAL HAS BEEN PLACED BEFORE US TO DISTURB THESE FINDINGS RENDERED BY LEARNED FIRST APPELLATE AUTHORITY. HOWEVER, IN OUR CONSIDERED OPINION, THE EXPENDITURE WHICH WAS QUITE NECESSARY TO MAINTAIN ASSESSEES CORPORATE PE RSONALITY WOULD BE AN ALLOWABLE EXPENDITURE SINCE WITHOUT INCURRING THE SAME, THE ASSESSEE COULD NOT HAVE REMAINED INTO EXISTENCE. TH EREFORE, WE DIRECT LD. AO TO IDENTIFY SUCH EXPENDITURE AND ALLO W THE SAME TO THAT EXTENT. THE ASSESSEE IS DIRECTED TO FURNISH TH E REQUISITE DETAILS, IN THIS REGARD. FOR THE SAID LIMITED PURPOSE, THE I SSUE STAND RESTORED BACK TO THE FILE OF LD. AO THE APPEAL STANDS ALLOWE D FOR STATISTICAL PURPOSES. CONCLUSION 10. ITA NOS. 488 TO 493/JODH/2017 STAND PARTLY ALLO WED WHEREAS ITA NO.494/JODH/2017 STAND ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED U/R 34(4) OF INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963. SD/- SD/- (SANDEEP GOSAIN) (MAN OJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 21/12/2020 SR.PS:-JAISY VARGHESE ! / COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. #$' / THE RESPONDENT 3. % ( ) / THE CIT(A) 4. % / CIT CONCERNED 5. &'#( ) , ) , ) / DR, ITAT, JODHPUR 6. '+,-! / GUARD FILE 11 SIR PRATAP HERITAGE HOTELS PRIVATE LIMITED. ASSESSMENT YEARS: 2008-09 TO 2014-15 / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, JODHPUR.