Edward Keventer (Successors) Pvt. Ltd., New Delhi V. Addl. CIT, New Delhi

ITA 5247/DEL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65455 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-09-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 13-09-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 25-11-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: R K KAPOOR
• Keywords: Initiation of penalty proceedings
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: B NEW DELHI BEFORE SHRI S.V.MEHROTRA, ACCOUNTANT MEMBER AND SHRI KULBHARAT, JUDICIAL MEMBER I.T.A .NO.- 5247/DEL/2011 (ASSESSMENT YEAR- 2007-08) EDWARD KEVENTER (SUCCESSORS) (P). LTD. VS ADDL. CI T 1-E, NAAZ CINEMA COMPLEX, RANGE-10, JHANDEWALAN EXTENSION, NEW DELHI. NEW DELHI-55. PAN-AAACE0465E (A PPELLANT) (RESPONDE NT) APPELLANT BY: SH. R.K.KAPOOR, CA RESPONDENT BY: SH. RAM BILASH MEEN A, SR. DR APPEAL HEARD ON-13.09.2012 ORDER PRONOUNCED ON-14.09.2012 ORDER PER KULBHARAT, JM THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)-XIII, NEW DELHI DATED 15.09.2010. 2. THE ASSESSEE IN THIS APPEAL HAS RAISED FOLLOWING GROUNDS OF APPEAL:- 1). THAT THE IMPUGNED ORDER DATED 15.09.2011 PASS ED BY THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-XIII, NEW DELHI IS BAD IN LAW AND WRONG ON FACTS. 2). THAT THE LEARNED COMMISSIONER OF INCOME-TAX (AP PEALS)- XIII, NEW DELHI HAS ERRONEOUSLY DISMISSED THE APPEA L AS NON- MAINTAINABLE. 3). THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND, SUBSTITUTE, WITHDRAW AND/OR VARY ANY GROUNDS OF APP EAL AT OR BEFORE THE TIME OF HEARING. I.T.A .NO.- 5247/DEL/2011 2 3. THE FACTS IN BRIEF ARE THAT THE CASE OF THE ASSE SSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT. WHILE FRAMING ASSESSMENT, THE INCOME DECLARED AT RS. 48,05,970/- IS ACCEPTED. IN ASSESSMENT ORDER, THE AO HAS MADE AN OBSERVATION THAT THE SUBMISSION MADE BY THE ASSESSE E DURING THE ASSESSMENT SUBMISSIONS AND PROCEEDINGS WERE NOT FOUND TENABLE AND THE STAMP DUTY WAS MADE UNDER THE OBLIGATION OF THE SO CALLED AGRE EMENT WITH IRANIAN KERALA AND SHEILA AGAWAM BUT THE SAME IN NOT FIT OF IMAGINATION CAN BE DIRECTLY CO-RELATED AS HAS BEEN DONE BY THE ASSESSE E COMPANY WHILE DEBITING THE SAME TO THE CONSTRUCTION WORK IN PROGRESS. MOR EOVER, THIS AMOUNT HAD ALREADY BEEN CONSIDERED DURING THE ASSESSMENT PROCE EDINGS FOR THE ASSESSMENT YEAR 2006-07 AND THE ASSESSEE HAD BEEN G IVEN DUE BENEFIT FOR THE SAME AMOUNT BY REDUCING THE SAME AMOUNT FROM THE SA LE CONSIDERATION, BY THE THEN AO IN HIS ORDER U/S 143(3) DATED 31-12-200 8. IN VIEW OF THE SAME ADDITION OF THIS AMOUNT TO THE CONSTRUCTION WORK IN PROGRESS IS SQUARELY AGAINST THE PROVISION OF INCOME TAX ACT AS WELL AS SETTLED ACCOUNTANCY PRINCIPLES. HENCE, THE INCLUSION OF AMOUNT OF RS. 2,96,55,660/- ON ACCOUNT OF STAMP DUTY PAID, TO THE CONSTRUCTION WORK IN PRO GRESS IN THE BALANCE SHEET OF THE YEAR ENDING ON 31.03.2007 IS NOT ALLOWABLE. IN VIEW OF THIS AMOUNT TO FURNISHING INACCURATE PARTICULARS OF INCOME AND IS LIABLE TO BE PENALIZED U/S 271(1)(C) OF THE ACT. AGAINST THESE OBSERVATIONS, THE ASSESSEE FILED AN I.T.A .NO.- 5247/DEL/2011 3 APPEAL BEFORE THE LD. CIT(A). AFTER CONSIDERING TH E SUBMISSIONS, LD. CIT(A) DISMISSED THE APPEAL. 4. LD. AR SUBMITTED THAT THE LD. CIT(A) GROSSLY ERR ED IN DISMISSING THE APPEAL ON THE GROUND THAT SAME IS NOT MAINTAINABLE U/S 246A(1)(A). HE SUBMITTED THAT THE OBSERVATION OF THE AO WAS UNWARR ANTED AND THE AO HAS PROPOSED FOR INITIATION OF PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT. 5. ON THE CONTRARY, LD. SENIOR DR, SH. R.B.MEENA, S UBMITTED THAT THE ORDER OF LD. CIT(A) IS PERFECTLY JUSTIFIED. HE SUB MITTED THAT THE APPEAL OF THE ASSESSEE IS NOT MAINTAINABLE AS THE INCOME DECL ARED BY THE ASSESSEE HAS BEEN ACCEPTED. HE POINTED OUT THAT THE POWER OF TH E CIT(A) U/S 251 OF THE ACT IS THAT AGAINST THE ORDER OF ASSESSMENT, HE MA Y CONFIRM REDUCE, ENHANCE OR ANNUL ANY ASSESSMENT. THE ASSESSEE HAS NOT MADE ANY PRAYER TO THIS EFFECT. 6. WE HAVE HEARD THE RIVAL CONTENTIONS PERUSED MATE RIAL AVAILABLE ON RECORD. WE FIND THAT LD. CIT(A) HAS DECIDED THIS I SSUE AS UNDER:- ON CONSIDERATION OF THE ABOVE GROUNDS OF APPEAL I T IS SEEN THAT THE PRESENT APPEAL IS NOT MAINTAINABLE U/S 246A OF THE IT ACT. AS PER THE APPEAL MEMO FILED ON 12.01.2010 THE APPEAL HAS BEEN PREFERRED U/S 246(1)(A). HOWEVER, UNDER THE SAID S ECTION AN APPEAL WOULD LIE AGAINST AN ORDER U/S 143(3) WHERE THE ASSESSEE OBJECTS-TO THE INCOME ASSESSED, OR TO THE AMOUNT OF TAX DETERMINED, OR TO THE AMOUNT OF LOSS COMPUTED OR TO THE STATUS UNDER WHICH HE IS ASSESSED. IN THE PRESENT APPEAL THERE IS NO GRIEVANCE AGAINST THE INCOME ASSESSED, OR THE TAX D ETERMINED OR THE STATUS UNDER WHICH THE APPELLANT HAS BEEN ASSES SED. THE ASSESSING OFFICER HAS ACCEPTED THE TOTAL INCOME AT RS. 48,05,970/- AS DECLARED IN THE RETURN OF INCOME. T HE OBJECTION OF I.T.A .NO.- 5247/DEL/2011 4 THE APPELLANT IS AGAINST THE ASSESSING OFFICERS OB SERVATION THAT THE APPELLANT HAS FURNISHED INACCURATE PARTICULARS OF ITS INCOME. THIS HAS BEEN CLEARLY STATED IN GROUNDS NO.1 AND 2, GROUND NO-3 AND 4 ARE SUPPORTING GROUNDS TO GROUNDS NO 1 AND 2. GROUND NO. 5 RELATES TO INITIATION OF PENALTY PROCEEDINGS U/S 271(1)(C) AGAINST WHICH NO APPEAL LIES. GROUND NO. 6, IN THE FACTS OF THE INSTANT CASE IS ALSO NOT COVERED BY THE NATURE OF O BJECTIONS REFERRED TO IN SECTION 246(1)(A). AS THE MAKING OF THE OBSERVATION RELATING TO AN ACCOUNTING PROCEDURE ADO PTED BY THE APPELLANT DOES NOT HAVE ANY IMPACT ON THE APPELLANT S INCOME FOR THE ASSESSMENT YEAR 2007-08 WHICH IS THE YEAR IN AP PEAL, IT IS HELD THAT THE APPEAL FILED BY THE APPELLANT ON 12.0 1.2010 IS NOT MAINTAINABLE U/S 246(1)(A). ACCORDINGLY THE APPEAL IS DISMISSED AS NON MAINTAINABLE. 7. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF LD. CIT(A). IN VIEW OF THE FACT THAT THE POWER OF THE LD. CIT(A) IS TO THE EXTENT OF CONFIRMATION , REDUCTION, ENHANCEMENT OR ANNULMENT OF ASSESSMENT. MOREOVER, THE ASSESSEE IS NOT AGGRIEVED BY THE ASSESSMENT AS MADE BY THE AO. THE ASSESSEE IS ONLY AGGRIEVED TO THE EXTENT THAT THE O BSERVATION OF THE OF THE AO IS THAT INCLUSION OF AMOUNT OF RS. 2,96,55,660/- ON ACCOUNT OF STAMP DUTY PAID TO THE CONSTRUCTION WORK OF THE PROGRESS IN TH E BALANCE SHEET OF YEAR ENDING ON 31.07.2007, IS NOT ALLOWABLE. IN OUR CON SIDERED OPINION, LD. CIT(A) HAS RIGHTLY HELD THAT OBSERVATION RELATING T O AN ACCOUNTING PROCEDURE ADOPTED BY THE APPELLANT DOES NOT HAVE ANY IMPACT O N THE APPELLANTS INCOME FOR THE ASSESSMENT YEAR 2007-08 WHICH IS THE YEAR I N APPEAL AND THE APPEAL FILED BY THE ASSESSEE IS NOT MAINTAINABLE. IN THIS VIEW OF THIS MATTER, THE APPEAL OF THE ASSESSEE IS DISMISSED. I.T.A .NO.- 5247/DEL/2011 5 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 14.09.2012. SD/- SD/- (S.V.MEHROTRA) (KULBHARAT) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 14/09/2012 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI