M/s Abhisar Buildwell Pvt. Ltd., Delhi V. DCIT, New Delhi

ITA 5212/DEL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7894 (ITAT-DELHI)
• Duration Of Justice: 46 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-05-2016
• Appeal Filed By: Assessee
• Assessment Year: misc
• Appeal Filed On: 01-01-1970
• Court: TRIBUNAL
• Department Lawyers: O P MEENA
• Assessee Lawyers: ABHISHEK ANAND S
• Keywords: Revenue expenditure; Capital expenditure

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH A AA A : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI BEFORE SHRI BEFORE SHRI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT G.D. AGRAWAL, VICE PRESIDENT G.D. AGRAWAL, VICE PRESIDENT G.D. AGRAWAL, VICE PRESIDENT AND AND AND AND SHRI SUDHANSHU SRIVASTAVA SHRI SUDHANSHU SRIVASTAVA SHRI SUDHANSHU SRIVASTAVA SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER ITA NO ITA NO ITA NO ITA NO . .. . 5212/DEL/2013 5212/DEL/2013 5212/DEL/2013 5212/DEL/2013 ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : 2008 2008 2008 2008 - -- - 09 0909 09 M/S ABHISAR BUILDWELL PRIVATE M/S ABHISAR BUILDWELL PRIVATE M/S ABHISAR BUILDWELL PRIVATE M/S ABHISAR BUILDWELL PRIVATE LIMITED, LIMITED, LIMITED, LIMITED, 1711, SP 1711, SP 1711, SP 1711, SP MUKHERJEE MARG, MUKHERJEE MARG, MUKHERJEE MARG, MUKHERJEE MARG, DELHI DELHI DELHI DELHI 110 006. 110 006. 110 006. 110 006. PAN : AAFCA6845D. PAN : AAFCA6845D. PAN : AAFCA6845D. PAN : AAFCA6845D. VS. VS. VS. VS. COMMISSIONER OF INCOME TAX COMMISSIONER OF INCOME TAX COMMISSIONER OF INCOME TAX COMMISSIONER OF INCOME TAX (APPEALS) (APPEALS) (APPEALS) (APPEALS)- -- -IV, IV,IV, IV, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : DR. RAKESH GUPTA, SHRI SOMIL AGARWAL AND SHRI ABHISHEK ANAND, ADVOCATES. RESPONDENT BY : S HRI O.P. MEENA, DR. DATE OF HEARING : 12.05.2016 12.05.2016 12.05.2016 12.05.2016 DATE OF PRONOUNCEMENT : 13.05.2016 13.05.2016 13.05.2016 13.05.2016 ORDER ORDER ORDER ORDER PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP : :: :- -- - THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YEA R 2008-09 IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-IV, NE W DELHI DATED 21 ST JUNE, 2013. 2. THE ONLY GROUND RAISED BY THE ASSESSEE IN THIS A PPEAL IS AGAINST THE LEVY OF PENALTY OF `3,72,177/- U/S 271(1)(C) OF THE INCOME-TAX ACT, 1961. 3. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D PERUSED THE MATERIAL PLACED BEFORE US. THE ASSESSEE HAS CLAIME D THE EXPENDITURE OF `12,04,457/- ON ACCOUNT OF FEES PAID TO THE REGI STRAR OF COMPANIES FOR INCREASE IN ITS SHARE CAPITAL. THE ASSESSEE CL AIMED THE SAME AS REVENUE EXPENDITURE WHICH WAS DISALLOWED BY THE ASS ESSING OFFICER ITA-5212/DEL/2013 2 TREATING THE SAME AS CAPITAL EXPENDITURE. THE ASSE SSING OFFICER ALSO LEVIED PENALTY THEREON U/S 271(1)(C). IN OUR OPINI ON, THE ISSUE UNDER CONSIDERATION IS SQUARELY COVERED BY THE DECISION O F HONBLE APEX COURT IN THE CASE OF CIT VS. RELIANCE PETROPRODUCTS PVT.LTD. (2010) 322 ITR 158 (SC). IN THE SAID CASE, HONBLE APEX C OURT HELD AS UNDER:- WHERE THERE IS NO FINDING THAT ANY DETAILS SUPPLIE D BY THE ASSESSEE IN ITS RETURN ARE FOUND TO BE INCORRECT OR ERRONEOUS OR FALSE THERE IS NO QUESTION OF INVITING THE PENALTY UNDER SECTION 271(1)(C). A MERE MAKING OF A CLAIM, WHICH IS NOT SUSTAINABLE IN LAW, BY ITSELF, WILL NOT AMOUNT TO FURNISHING INACCURATE PARTICULARS REGARDI NG THE INCOME OF THE ASSESSEE. SUCH A CLAIM MADE IN THE R ETURN CANNOT AMOUNT TO FURNISHING INACCURATE PARTICULARS. 4. THE RATIO OF ABOVE DECISION OF HONBLE APEX COUR T WOULD BE SQUARELY APPLICABLE TO THE FACTS OF THE ASSESSEES CASE. ADMITTEDLY, THE DETAILS SUPPLIED BY THE ASSESSEE IN ITS RETURN OF INCOME ARE NOT FOUND TO BE INCORRECT OR ERRONEOUS OR FALSE. THE A SSESSING OFFICER HAS DISALLOWED FEES PAID TO REGISTRAR OF COMPANIES FOR INCREASE IN THE SHARE CAPITAL TREATING THE SAME TO BE CAPITAL EXPEN DITURE. THUS, IT IS A CASE WHERE THE ASSESSEES CLAIM THAT THE EXPENDITUR E INCURRED IS REVENUE EXPENDITURE IS FOUND BY THE ASSESSING OFFIC ER TO BE NOT SUSTAINABLE IN LAW. BUT, THAT, BY ITSELF, WILL NOT AMOUNT TO FURNISHING OF INACCURATE PARTICULARS SO AS TO EXPOSE THE ASSESSEE TO PENALTY U/S 271(1)(C) OF THE ACT. ACCORDINGLY, WE, RESPECTFULL Y FOLLOWING THE ABOVE DECISION OF HONBLE APEX COURT, CANCEL THE PENALTY LEVIED U/S 271(1)(C) OF THE ACT. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. DECISION PRONOUNCED IN THE OPEN COURT ON 13.05.2016 . SD/- SD/- ( (( ( SUDHANSHU SRIVASTAVA SUDHANSHU SRIVASTAVA SUDHANSHU SRIVASTAVA SUDHANSHU SRIVASTAVA ) )) ) ( (( ( G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL ) )) ) JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VK. ITA-5212/DEL/2013 3 COPY FORWARDED TO: - 1. APPELLANT : M/S ABHISAR BUILDWELL PRIVATE LI MITED, M/S ABHISAR BUILDWELL PRIVATE LIMITED, M/S ABHISAR BUILDWELL PRIVATE LIMITED, M/S ABHISAR BUILDWELL PRIVATE LIMITED, 1711, SP MUKHERJEE MARG, DELHI 1711, SP MUKHERJEE MARG, DELHI 1711, SP MUKHERJEE MARG, DELHI 1711, SP MUKHERJEE MARG, DELHI 110 006. 110 006. 110 006. 110 006. 2. RESPONDENT : C CC COMMISSIONER OF INCOME TAX (APPEALS) OMMISSIONER OF INCOME TAX (APPEALS) OMMISSIONER OF INCOME TAX (APPEALS) OMMISSIONER OF INCOME TAX (APPEALS)- -- -IV, IV,IV, IV, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR