DCIT, New Delhi V. M/s. Delhi Tourism Transportation Corporation Ltd., New Delhi

ITA 716/DEL/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 1185 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 1 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2019
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: F
• Assessment Year: 2012-2013
• Appeal Filed On: 10-02-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Business income; Reasonable cause; Bad and doubtful debts; Revised return; TDS
• Section: 43B; 143(3); 145; 154

Judgement Text

FIT FOR PUBLICATION SD/- SD/- (JM) (AM) ITA NOS.- 716/DEL/2016 AND THREE OTHERS APPEALS. M/S DELHI TOURISM TRANSPORTATION CORPORATION LTD. PAGE 1 OF 25 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: B: NEW DELHI) BEFORE SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA NO:- 716/DEL/2016 ( ASSESSMENT YEAR: 2012-13) DCIT, CIRCLE- 7(1), NEW DELHI. VS. M/S DELHI TOURISM TRANSPORTATION CORPORATION LTD., 18-A, DDA SCO COMPLEX, DEFENCE COLONY, NEW DELHI- 110024. PAN NO: AAACD0169J APPELLANT RESPONDENT ITA NO:- 2489/DEL/2015 ( ASSESSMENT YEAR: 2010-11) M/S DELHI TOURISM TRANSPORTATION CORPORATION LTD., 18-A, DDA SCO COMPLEX, DEFENCE COLONY, NEW DELHI- 110024. VS. DCIT, CIRCLE- 10(1), AND COMMISSIONER (A)-III NEW DELHI. PAN NO: AAACD0169J APPELLANT RESPONDENT ITA NO:- 570/DEL/2016 ( ASSESSMENT YEAR: 2012-13) M/S DELHI TOURISM TRANSPORTATION CORPORATION LTD., 18-A, DDA SCO COMPLEX, VS. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE- 3(1), ITA NOS.- 716/DEL/2016 AND THREE OTHERS APPEALS. M/S DELHI TOURISM TRANSPORTATION CORPORATION LTD. PAGE 2 OF 25 DEFENCE COLONY, NEW DELHI - 110024. NEW DELHI. PAN NO: AAACD0169J APPELLANT RESPONDENT ITA NOS:- 2792/DEL/2015 ( ASSESSMENT YEAR: 2010-11) DCIT, CIRCLE- 7(1), NEW DELHI. VS. M/S DELHI TOURISM TRANSPORTATION CORPORATION LTD., 18-A, DDA SCO COMPLEX, DEFENCE COLONY, NEW DELHI- 110024. PAN NO: AAACD0169J APPELLANT RESPONDENT REVENUE BY : MS. ASHIMA NEB, SR. DR ASSESSEE BY : SHRI H.P. AGRAWAL, FCA AND SHRI PANCHAM SETHI, FCA ORDER PER ANADEE NATH MISSHRA, AM THESE FOUR APPEALS, ARE DIRECTED AGAINST DIFFERENT ORDER DATED 26.02.2015 AND 13.11.2015 OF COMMISSIONER OF INCOME TAX (APPEALS)- 3, LAXMI NAGAR, DELHI-110092 PERTAINING TO DIFFERENT ASSESSMENT YEARS I.E. 2010- 11 AND 2012-13. FOR THE SAKE OF CONVENIENCE AND BREVITY THESE FOUR APPEALS, TWO EAC H FILED BY REVENUE AND ASSESSEE, ARE BEING DISPOSED OFF BY WAY OF THIS CONSOLIDATED ORDE R. THE GROUNDS OF APPEALS ARE AS UNDER: ITA NOS.- 716/DEL/2016 AND THREE OTHERS APPEALS. M/S DELHI TOURISM TRANSPORTATION CORPORATION LTD. PAGE 3 OF 25 ITA NO.- 716/DEL/2016 1. LD. CIT(A) ERRED IN LAW AND ON FACTS OF THE CAS E IN DIRECTING THE AO TO ALLOW THE ASSESSEE DEDUCTION OF RS. 5,20,17,982/- WHICH W AS DISALLOWED BY THE AO U/S 43B OF THE I.T. ACT ON ACCOUNT OF ADVANCE EXCIS E DUTY. 2. LD. CIT(A) ERRED IN LAW AND ON FACTS OF THE CASE IN DIRECTING THE AO TO ALLOW THE ASSESSEE DEDUCTION OF RS. 1,43,34,019/- WHICH W AS DISALLOWED BY THE AO ON ACCOUNT OF PROVISION FOR LEAVE ENCASHMENT. 3. LD. CIT(A) ERRED IN LAW AND ON FACTS OF THE CASE IN DIRECTING THE AO TO ALLOW THE ASSESSEE LOSS OF RS. 44,65,663/- PERTAINING TO DITTM. 4. THE APPELLANT CRAVES LEAVE, MODIFY, ADD OR FOREG O AND GROUND(S) OF APPEAL AT ANY TIME BEFORE OR DURING THE HEARING OF THIS APPEA L. ITA NO.- 2489/DEL/2015 1. LD. CIT(A) ERRED BOTH IN LAW AND ON FACTS OF CA SE BY FAILING TO TREAT THE ASSESSMENT ORDER PASSED BY LD. AO TO BE INFRUCTUOUS AND VOID BEING BASED ON ORIGINAL RETURN WHEN REVISED RETURN IS DULY FILED. 2. LD. CIT(A) ERRED BOTH IN LAW AND ON FACTS OF CAS E BY: 2.1 DIRECTING THE LD. AO TO CONSIDER THE REVISED RE TURN 2.2. ALLOWING ANOTHER OPPORTUNITY TO THE LD. A O FOR ADJUDICATING UPON THE REVISED RETURN THROUGH REMAND REPORT WHEN TIME PERIOD ALLO WED BY SECTION 153(1) FOR CONCLUDING THE ASSESSMENT U/S 143(3) HAD ALREADY L APSED. 2.3 FAILING TO APPRECIATE THAT THE REMAND REPORT IS SUED BY THE LD. AO ON THE DIRECTIONS OF LD. CIT(A) CONTINUES TO SUFFER FROM THE SAME LEGAL INFIRMITY AS ORIGINAL ORDER PASSED U/S 143(3) WHICH WAS PASSED WITHOUT CONSIDERING THE DULY FILED REVISED RETURN. 3. LD. CIT(A) ERRED BOTH IN LAW AND ON FACTS OF CAS E BY: 3.1 OBSERVING THAT ADDITIONAL CLAIMS IN THE REVI SED RETURN ARE BASED ON ADHOC ESTIMATES. 3.2 FAILING TO APPRECIATE THAT THE RETURN IS REVI SED IN PURSUANCE TO THE ORDER OF HONBLE DELHI HIGH COURT IN AY 1990-91, 1991-92, 1 992-93, 1994-95 AND 1996-97 HOLDING THAT 3.2.1 THE EXPENDITURE INCURRED ON CONSTRUCTION OF F LYOVERS, ETC. WAS REVENUE EXPENSE, AND ITA NOS.- 716/DEL/2016 AND THREE OTHERS APPEALS. M/S DELHI TOURISM TRANSPORTATION CORPORATION LTD. PAGE 4 OF 25 3.2.2 AMOUNT STANDING TO CREDIT OF TIUF ACCOUNT WAS TO BE INCLUDED IN TAXABLE INCOME 3.3 FAILING TO ALLOW THE CLAIM OF BROUGHT FORWARD L OSSES AMOUNTING TO RS. 5,61,25,314/- IN THE REVISED RETURN. 4. LD. CIT(A) ERRED IN LAW AND ON FACTS OF THE CASE BY CONFIRMING THE REJECTION OF CLAIM OF 4.1 PROVISION FOR DOUBTFUL DEBTS AMOUNTING TO RS. 6 ,11,675/-. 4.2 PROVISION FOR DOUBTFUL LOANS AMOUNTING TO RS. 1 ,14,901/-. 5. LD. CIT(A) ERRED IN CONFIRMING THE ACTION OF THE AO IN 5.1 MAKING A NET ADDITION OF RS. 1,01,03,121/- TO T HE INCOME ON ACCOUNT OF INCOME FROM DILLI HAAT. 5.2 TREATING A PART OF INCOME FROM DILLI HAAT AS RENTAL INCOME AS AGAINST THE CLAIM OF THE ASSESSEE TO TREAT THE SAME AS INCOME FROM BUSINESS. 5.3 RESTRICTING THE CLAIM OF EXPENSES TO 30% OF REC EIPTS FROM DILLI HAAT. 6. WITHOUT PREJUDICE TO GROUND NO. 4, LD. CIT(A) ER RED IN CONFIRMING THE ARBITRARY DISALLOWANCE OF EXPENDITURE BY THE LD. AO, WHILE D ETERMINING THE INCOME FROM DILLI HAAT, AS; 6.1 PROPORTIONATELY ATTRIBUTABLE EXPENSES W.R.T. R ENTAL INCOME AMOUNTING TO RS. 65,88,427/-. 6.2 50% OF OTHER REMAINING EXPENSES ON ACCOUNT OF NDMC SHARE AMOUNTING TO RS. 1,00,39,192/- 7. LD. CIT(A) ERRED IN LAW AND ON FACTS OF THE CASE BY CONFIRMING THE ADDITION OF RS. 61,81,344/- TO INCOME ON ACCOUNT OF UNDER- STATEMENT OF BANK INTEREST. ITA NO. 570/DEL/2016 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 1,43,04,472/- MADE T O THE INCOME OF THE ASSESSEE U/S 143(3) BY LD. AO. 2. LD. CIT(A) ERRED IN CONFIRMING THE ACTION OF THE AO IN 2.1 MAKING A NET ADDITION OF RS. 1,38,88,879/- TO THE INCOME ON ACCOUNT OF INCOME FROM DILLI HAAT. 2.2 TREATING A PART OF INCOME FROM DILLI HAAT AS RENT AL INCOME AS AGAINST THE CLAIM OF THE ASSESSEE TO TREAT THE SAME AS INCOME F ROM BUSINESS. 2.3 RESTRICTING THE CLAIM OF EXPENSES TO 30% OF RECEIPT S FROM DILLI HAAT. ITA NOS.- 716/DEL/2016 AND THREE OTHERS APPEALS. M/S DELHI TOURISM TRANSPORTATION CORPORATION LTD. PAGE 5 OF 25 3. WITHOUT PREJUDICE TO GROUND NO. 2, LD. CIT(A) ERRED IN CONFIRMING THE ARBITRARY DISALLOWANCE OF EXPENDITURE BY THE LD. AO, WHILE DE TERMINING THE INCOME FROM DILLI HAAT, AS: 3.1 PROPORTIONATELY ATTRIBUTABLE EXPENSES W.R.T. RENTAL INCOME AMOUNTING TO RS. 1,15,41,687/- 3.2 50% OF OTHER REMAINING EXPENSES ON ACCOUNT OF NDMC SHARE AMOUNTING TO RS. 1,15,33,415/- 4. LD. CIT(A) ERRED IN LAW AND ON FACTS OF THE CASE BY CONFIRMING THE REJECTION OF CLAIM OF 4.1 PROVISION FOR DOUBTFUL DEBTS AMOUNTING TO RS. 4,15, 593/-. 4.2 DEDUCTION OF RS. 32,59,477/- BEING REVENUE BOOKED U NDER DAMAGE CHARGES NOT REPRESENTING REAL INCOME OF ASSESSEE. ' ITA NO. 2792/DEL/2015 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW, LD. CIT(A) HAS ERRED IN DELETING ADDITION ON ACCOUNT OF DEDUCTION CLAIMED U/S 43B OF RS. 7,50,48,000/- BEING ADVANCE EXCISE DUTY PAYM ENT / DEPOSIT? 2. WHETHER THE CIT(A) WAS CORRECT IN ALLOWING DEDUC TION OF ADVANCE EXCISE DUTY PAID U/S 43B OF THE ACT. EVEN THOUGH THE LIABILITY TO PAY THE SUM HAD NOT CRYSTALLIZED DURING THE YEAR AND THE CLAIM WAS ALSO NOT DEBITED TO P & L ACCOUNT OF THIS YEAR? 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, LD. CIT(A) HAS ERRED IN DELETING DISALLOWANCE OF THE PR OVISIONS FOR THE LEAVE ENCASHMENT OF RS. 1,80,75,136/-? 4. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW, LD. CIT(A) HAS ERRED IN DELETING THE DISALLOWANCE OF TH E PAYMENT TO CRRI U/S 35(I)(IIA) OF RS. 11,03,000/- AS MADE BY THE AO.? 5. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, LD. CIT(A) HAS ERRED IN DELETING THE DISALLOWANCE OF TH E NET LOSS CLAIM OF THE UNIT OF RS. 32,79,998/- RELATED TO THE DELHI INSTITUTE O F TOURISM AND TRAVEL MANAGEMENT (DITTM) AS MADE BY THE AO? 6. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, LD. CIT(A) HAS ERRED IN DELETING THE DISALLOWANCE OF SU M OF RS. 33,74,567/- BEING 50% OF THE EXPENSES CLAIMED TOWARDS TOURISM PROMOT ION EXPENSES AND HIRING OF TENT & PURPOSE THEREOF AS MADE BY THE A O.? 7. THE APPELLANT CRAVES TO LEAVE, TO ADD, ALTER OR AMEND ANY GROUND OF APPEAL RAISED ABOVE AT THE TIME OF HEARING. ITA NOS.- 716/DEL/2016 AND THREE OTHERS APPEALS. M/S DELHI TOURISM TRANSPORTATION CORPORATION LTD. PAGE 6 OF 25 (1.1) DURING THE APPELLATE PROCEEDINGS IN INCOME TA X APPELLATE TRIBUNAL (ITAT, FOR SHORT) THE ASSESSEE FILED SEPARATE SYNOPSES FOR EAC H OF THE AFORESAID FOUR APPEALS. THE ASSESSEE ALSO FILED SEPARATE PAPER BOOKS FOR A.Y. 2 010-11 AND A.Y. 2012-13, CONTAINING THE FOLLOWING PARTICULARS: 1. RE. GROUND NO. 1: REVISE INCOME TAX RETURN AND ITS ACKNOWLEDGMENT OF FILING FOR A.Y. 2010-11. 2. RE. GROUND NO. 2: REMAND REPORT FOR CONSIDERING REVISED RETURN 3. RE. GROUND NO. 2: ASSESSEES SUBMISSION IN RESPE CT TO REMAND REPORT OF AO 4. RE. GROUND NO. 3: ORDER OF HONBLE DELHI HIGH CO URT IN AY 1990-91, 1991-92, 1992- 93, 1994-95 AND AY 1996-97. 5. RE. GROUND NO. 3: ORDER OF HONBLE ITAT IN ASSES SEES CASE FOR AY 2004-05 TO AY 2009-10 6. RE. GROUND NO. 5: PROFIT & LOSS A/C OF DILLI HA AT FOR FY 2009-10 7. RE. GROUND NO. 5: INCOME FROM DILLI HAAT AS PER ALTERNATE CONTENTION 8. RE. GROUND NO. 7: RECTIFICATION APPLICATION FIL ED U/S 154 BEFORE LD. AO 9. RE. GROUND NOJ. 7: SCREESHOT ON THE INCOME TAX PORTAL STATING THE EFFECT OF TDS CALIMED IN APPLICATION U/S 154 10. RE. GROUND NO. 1 & 2 (DEPTT): ORDER OF HONBLE ITAT IN ASSESSEES CASE IN AY 2008-09 AND AY 2009-10. 11. RE. GROUND NO. 1 & 2 (DEPTT): ORDER OF HONBLE DELHI HIGH COURT IN ASSESSEES CASE IN AY 2008-09 AND AY 2009-10. 12. RE. GROUND NO. 3(DEPTT): ORDER OF LD. AO IN ASS ESSEES CASE FOR AY 2005-06. 13. RE. GROUND NO. 4(DEPTT). NOTIFICATION NO. 53/20 11, DT. 30.09.2011 IN RELATION TO SECTION 35(1)(II) AND NAMES OF INSTITUTES COVERED U NDER CSIR. ITA NOS.- 716/DEL/2016 AND THREE OTHERS APPEALS. M/S DELHI TOURISM TRANSPORTATION CORPORATION LTD. PAGE 7 OF 25 14. RE. GROUND NO. 4 (DEPTT): CONFIRMATION BY CRRI FOR RECEIPTS OF PAYMENT FROM DTTDC 15. RE. GROUND NO. 4 (DEPTT): ORDER OF DCIT (EXEMPT ION) NEW DELHI U/S 10(23C)(IV) REGARDING EXEMPTION TO CSIR. 16. RE. GROUND NO. 5 (DEPTT): ORDER OF LD. CIT(S) D T. 30.01.2019 IN ASSESSEES CASE IN AY 2013-14. 17. RE. GROUND NO. 5 (DEPTT): MOU ISSUED IN 1993 BY MINISTRY OF TOURISM, GOI AND RENEWAL LETTER DT. 08.09.2005. 18. RE. GROUND NO. 5 (DEPTT) : ABSTRACT OF DOD MINU TES HELD IN SEPT. 2007 RELATED TO TAKEN OVER OF DITTM BY DTTDC. 19. RE. GROUND NO. 6(DEPTT): INVOICES FOR TOURISM P ROMOTION EXPENSES 20. RE. GENERAL GROUND: SUBMISSION TO LD. CIT(A) DT . 20.06.2014 21. RE. GROUND 1 & 2: ORIGINAL AND REVISED COMPUTAT ION 22. RE. GROUND NO. 2 & 3 : COPY OF MEMORANDUM OF AS SOCIATION AND LICENCE DEED. 23. RE. GROUND NO. 2 & 3 : BALANCE SHEET AND PROFIT & LOSS A/C OF DILLI HAAT FOR FY 2011- 12 24. RE. GROUND NO. 2 & 3: INCOEM FROM DILLI HAAT AS PER ALTERNATE CONTENTION 25. RE. GROUND NO. 4: COPY OF LEDGERS RELATING TO P ROVISION FOR BAD & DOUBTFUL DEBT 26. RE. GROUND NO. 4: LEDGER OF ITE INDIA PVT. LTD. ALONG WITH NOTE ON REVERSAL OF RECOVERY RELATING TO DAMAGE CHARGES. 27. RE. GENERAL GROUND: SUBMISSION TO LD. CIT(A) (1.2) WE HAVE CONSIDERED ALL MATERIALS ON RECORD, INCLUDI NG THE AFORESAID SYNOPSES AND PAPER BOOKS, AND ORDER OF THE LOWER AUTHORITIES, NA MELY THE LD. COMMISSIONER OF INCOME ITA NOS.- 716/DEL/2016 AND THREE OTHERS APPEALS. M/S DELHI TOURISM TRANSPORTATION CORPORATION LTD. PAGE 8 OF 25 TAX (APPEALS) AND THE ASSESSEE. AT THE TIME OF HEA RING BEFORE US, WE HAVE HEARD BOTH SIDES PATIENTLY AND HAVE TAKEN THE ORAL SUBMISSIONS MADE BY THE TWO SIDES INTO CONSIDERATION. (2) WE FIRST TAKE UP ASSESSEES APPEALS IN ITA NO.2489 /DEL/2015 FOR ASSESSMENT YEAR 2010-11 (A.Y., FOR SHORT) AND ITA NO.570/DEL/2016 FOR A. Y. 2012-13. THE GROUNDS 1, 2, 3, AND 4 IN ASSESSEES APPEAL FOR A. Y. 2010-11 WER E NOT PRESSED. HENCE, THESE GROUNDS ARE DISMISSED, BEING NOT PRESSED. GROUND NO.1 IN AS SESSEES APPEAL FOR A. Y. 2012-13 IS GENERAL IN NATURE AND DOES NOT REQUIRED SPECIFIC AD JUDICATION. (2.1) GROUNDS 5 AND 6 IN ASSESSEES APPEAL FOR A. Y. 20 10-11 AND GROUNDS 2 AND 3 IN ASSESSEES APPEAL FOR A. Y. 2012-13 PERTAIN TO ADDI TIONS MADE BY THE ASSESSING OFFICER (AO, FOR SHORT) ON ACCOUNT OF INCOME FROM DILLI HAAT, TREATING PART OF INCOME FROM DILLI HAAT AS RENTAL INCOME AND RESTRICTING THE CLAIM OF EXPENSES TO 30% OF THE RECEIPTS. THE ADDITIONS MADE BY THE AO ON THIS ACCOUNT ARE RS.1,0 1,03,121/- FOR A. Y. 2010-11 AND RS.1,38,88,879/- FOR A. Y. 2012-13. AT THE TIME OF HEARING BEFORE US, THE LD. AUTHORIZED REPRESENTATIVE (AR, FOR SHORT) OF THE ASSESSEE SU BMITTED THAT THE ISSUE IS COVERED BY ORDER OF CO-ORDINATE BENCH OF ITAT (INCOME TAX APP ELLATE TRIBUNAL, FOR SHORT) DELHI IN ASSESSEES OWN CASE FOR A. Y. 2004-05 TO A.Y. 2009- 10 VIDE ORDER DATED 28.03.2018 IN ITA NOS. 3457/DEL/21007, 1505/DEL/2009, 4877/DEL/2009, 1903/DEL/2011, 1634/DEL/2011, 2687/DEL/2012 AND 4910/DEL/2012. DIRECTIONS OF ITA T IN AFORESAID ORDER DATED 28.03.2018 ARE CONTAINED IN PARAGRAPHS 19 AND 22 OF THE ORDER WHICH ARE REPRODUCED BELOW FOR READY REFERENCE:- ITA NOS.- 716/DEL/2016 AND THREE OTHERS APPEALS. M/S DELHI TOURISM TRANSPORTATION CORPORATION LTD. PAGE 9 OF 25 '19 FURTHER, THE NATURE OF THE BUSINESS ACTIVITY OF THE ASSESSEE UNMISTAKABLY DECIPHERS THAT IT CANNOT BE CARRIED OU T WITHOUT LETTING OUT STALLS ON REGULAR FREQUENCY TO DIFFERENT CRAFTSMEN. IN THE ABOVE HUE, WE HAVE ABSOLUTELY NO DOUBT IN OUR MIND THAT INCOME OF RS. 1.82 CRORE EARNED BY THE ASSESSEE FROM USE OF CRAFT STALLS ON 15 DAYS BASIS IS 'BUSINESS INCOME' AND HAS BEEN CONSIDERED BY THE AU THORITIES BELOW AS 'INCOME FROM HOUSE PROPERTY'. THE IMPUGNED ORDER IS PRO TANTO VACATED. 22. TURNING TO THE REMAINING AMOUNT OF RS.54.00 LAC, WE FIND THAT THE SAME CONSISTS OF RS.41.00 LAC, BEING, INCOME FROM S PACE RENTED ON REGULAR BASIS AND RS.12.99 LAC, BEING, LICENCE FEE FOR ALLOWING ACTIVITIES OF FOOD COURT, SOUVENIR SHOPS, BANK AND PCO. THIS A MOUNT OF RS.54 LAC HAS BEEN EARNED BY THE ASSESSEE FROM THE LETTING OU T OF ITS PERMANENT STRUCTURES. THE SAME CANNOT BE EQUATED WITH INCOME OF RS.1.82 CRORE DISCUSSED ABOVE, BEING, LICENCE FEE FOR USE OF CRAF T STALLS ON 15 DAY BASIS. THE ID. AR WAS FAIR ENOUGH NOT TO CONTEST TH E TAXABILITY OF RS.54.00 LAC AS INCOME HELD BY THE LOWER AUTHORITIE S TO BE FALLING UNDER THE HEAD 'INCOME FROM HOUSE PROPERTY.' THE AR OF THE ASSESSEE SUBMITTED THAT SAME VIEW MAY BE TAKEN FOR A.Y. 2010-11 AND A.Y. 2012-13 ALSO. (2.2) THE LD. DEPARTMENTAL REPRESENTATIVE (DR, FOR SHO RT) FAIRLY CONCEDED THAT THE ISSUES IN DISPUTE ARE COVERED BY THE AFORESAID ORDER DATED 28.03.2018 OF CO-ORDINATE BENCH OF ITAT, DELHI IN ASSESSEES OWN CASE FOR A. Y. 2004-0 5 TO 2009-10 ON IDENTICAL FACTS AND CIRCUMSTANCES. HOWEVER, SHE RELIED ON THE ORDERS O F THE AO. THUS, BOTH SIDES AGREE THAT THE ISSUE IN DISPUTE ARE COVERED BY AFORESAID ORDER DATED 28.03.2018 OF CO-ORDINATE BENCH OF ITAT, DELHI IN ASSESSEES OWN CASE. ITA NOS.- 716/DEL/2016 AND THREE OTHERS APPEALS. M/S DELHI TOURISM TRANSPORTATION CORPORATION LTD. PAGE 10 OF 25 (2.3) THE ASSESSEE COMPANY WAS INCORPORATED BY THE GOVER NMENT OF DELHI WITH THE MAIN OBJECT TO DEVELOP TOURISM. MAIN OBJECTS OF THE ASS ESSEE, AS CONTAINED IN MEMORANDUM OF ASSOCIATION STATES: 1. TO DEVELOP TOURISM AND TO : . (D) PROVIDE ENTERTAINMENT TO TOURISTS BY WAY OF CU LTURAL SHOWS, TOURIST COMPLEXES, ENTERTAINMENT AND AMUSEMENT PARK S, DANCES, MUSIC CONCERTS, BALLETS , FILMS, SHOWS, SPORTS AND GAMES, SON-ET- LUMINIERE SPECTACLES AND OTHERS. . (F) PROVIDE SHOPPING FACILITIES TO TOURIST, ESTABLI SH AND MANAGE SHOPS INCLUDING DUTY FREE SHOPS, BAZAARS, EMPORIA AND OTH ER PLACES FOR SELLING TRAVEL REQUISITES AND OTHER ARTICLES OF TOU RIST INTEREST' WITH THE OBJECT TO PROMOTE TOURISM, THE IDEA OF 'DI LLI HAAT WAS CONCEPTUALIZED IN 1994 BY THE MINISTRY OF TOURISM, GOVERNMENT OF INDIA AND LAND MEASURING ABOUT 6 ACRES WAS LEASED TO THE ASSE SSEE FROM NEW DELHI MUNICIPAL COUNCIL (NDMC) INITIALLY FOR 10 YEARS AND RENEWED FROM TIME TO TIME. ON THE LEASED LAND, THE ASSESSEE CONSTRUCTED SHOPS, STALLS, SPACE FOR BANKS, FOOD COURTS, GREEN PLAZA, ETC. AND WALKWAYS, AMPHIT HEATER AND OPEN THEATER FOR ENTERTAINMENT, FASHION SHOWS, AND CULTURAL PROG RAMMES. THE STALLS WERE ALLOTTED TO CRAFTSMEN, HAWKERS, ETC . AT A NOMINAL PAYMENT FOR A PERIOD OF 15 DAYS BY THE MINISTRY OF TEXTILES, GO VERNMENT OF INDIA. THESE CRAFTSMEN, HAWKERS AND ARTISANS COME FROM ALL CORNE RS OF INDIA AND ARE ALLOTTED OPEN SPACES HAVING TEMPORARY CONSTRUCTION ON ROTATIONAL BASIS AT RS.200 PER DAY FOR 15 DAYS. DILLI HAAT WAS CONCEPTUALIZED ON THE LAND LEASED BY NDMC AND AS A CONSIDERATION FOR LEASE OF LAND, ASSESSEE WAS REQUI RED TO PAY A SUM OF RS. 1,50,000/- PER ANNUM AS LICENSE FEE PLUS 50% OF THE SALES OF THE ENTRY TICKETS OF DILLI HAAT PER ANNUM. ITA NOS.- 716/DEL/2016 AND THREE OTHERS APPEALS. M/S DELHI TOURISM TRANSPORTATION CORPORATION LTD. PAGE 11 OF 25 (2.3.1) DURING THE A.Y. 2010-11 ASSESSEE EARNED TOTAL GROS S RECEIPTS AMOUNTING TO RS.5,98,17,388/- FROM DILLI HAAT, BREAK UP OF WHI CH IS AS FOLLOWS :- S. NO. PARTICULARS AMOUNT A STALL FESTIVAL INCOME 12,92,802 B LICENSE FEES ALLOWING ACTIVITIES OF FOOD COURT, SOU VENIR SHOPS, 3,38,54,654 BANK AND PCO TOTAL (A) 3,51,47,456 C. OTHER RECEIPTS (BRAND EXHIBITION STAGE) 78,82,381 D ENTRY TICKET CHARGES 1,60,16,025 E MISC. RECEIPTS 7,71,526 TOTAL (B) 2,46,69,932 TOTAL GROSS RECEIPTS (C ) 5,98,17,388 AS AGAINST THE TOTAL RECEIPTS AT DILLI HAAT AMOUN TING TO AFORESAID RS.5,98,17,388/- THE TOTAL EXPENSES INCURRED BY THE ASSESSEE AT DILLI H AAT WAS RS.3,03,00,709/-; AND THE NET INCOME OF RS. 2,95,16,679/- HAS BEEN SHOWN BY T HE ASSESSEE AS BUSINESS INCOME FROM DILLI HAAT. THE LD. AO AT PAGE NO. 10 OF HIS ORDER HELD THAT OUT OF THE TOTAL RECEIPTS OF RS.5,98,17,388/- FROM DILLI HAAT, RS. 3,38,54,653/- HAS BEEN EARNED ON ACCOUNT OF RENTAL INCOME BEING THE AGGREGATE OF FOL LOWING: ITA NOS.- 716/DEL/2016 AND THREE OTHERS APPEALS. M/S DELHI TOURISM TRANSPORTATION CORPORATION LTD. PAGE 12 OF 25 INCOME FROM SPACE RENTED ON REGULAR BASIS 98,87,91 7/- CRAFT STALL 2,39,66,739/- TOTAL 3,38,54,653/- WHILE COMPUTING INCOME UNDER THE HEAD HOUSE PROPERT Y, THE LD. AO ALLOWED EXPENSES @ 30 % OF THE RENTAL INCOME, I.E. HE ALLOWED ONLY R S. 1,01,56,396/- AS EXPENSES AGAINST RENTAL INCOME OF RS.3,38,54,653/-; AND DIS ALLOWED THE BALANCE EXPENSES OF RS. 1,01,03,121 (I.E. RS.2,02,59,517 -1,01,56,396) CLAI MED AGAINST THE AFORESAID RECEIPTS TOTALING RS. 3,38,54,653/-. (2.3.2) DURING THE A.Y. 2012-13 ASSESSEE EARNED TOTAL GROSS RECEIPTS AMOUNTING TO RS.7,94,29,047/- FROM DILLI HAAT, BREAK UP OF WHI CH IS AS FOLLOWS :- S . NO. PARTICULARS AMOUNT 1 ENTRY TICKETS 3,03,42,030/ - 2 INCOME FROM FAIR FESTIVAL & SPECIAL EXHIBITION 17,51,303 3 OTHER RECEIPTS (BRAND PROMOTION, MEETING HALL, ETC. ) 43,95,208 4 RENT / STORE CHARGES 4,11,39,371 5 OTHER RECEIPTS 3,70,800 6 MISC. INCOME (SALE OF TENDOR FORM, ETC.) 91,391 7 INTEREST ON FDR 13,38,944 TOTAL GROSS RECEIPTS ( C) 7,94,29,047 ITA NOS.- 716/DEL/2016 AND THREE OTHERS APPEALS. M/S DELHI TOURISM TRANSPORTATION CORPORATION LTD. PAGE 13 OF 25 THE TOTAL RECEIPT AT DILLI HAAT WAS RS.7,94,29,04 7/- AND THE TOTAL EXPENSE INCURRED BY THE ASSESSEE AT DILLI HAAT IS RS. 4,25,52,448 THE REBY THE NET INCOME OF RS.3,68,76,599/- HAS BEEN SHOWN BY THE ASSESSEE AS BUSINESS INCOME FROM DILLI HAAT. THE AO AT PAGE NO. 6 OF HIS ORDER HELD THAT OUT OF THE TOTAL RECEIPTS OF RS.7,94,29,047/- FROM DILLI HAAT, RS. 4,76,56,682 /- HAS BEEN EARNED ON ACCOUNT OF RENTAL INCOME BEING THE AGGREGATE OF FOLLOWING: INCOME FROM SPACE RENTED ON REGULAR BASIS 1,98,51, 494/- CRAFT STALL 2,78,05,188/- TOTAL 4,76,56,682/- WHILE COMPUTING INCOME UNDER THE HEAD HOUSE PROPERT Y, THE AO ALLOWED EXPENSES @ 30 % OF THE RENTAL INCOME, I.E. HE ALLOWED ONLY RS. 1,42,97,005/- AS EXPENSES AGAINST RENTAL INCOME OF RS.4,76,56,682/, DISALLOWED THE BA LANCE EXPENSES OF RS. 1,38,88,879 (I.E. RS. 5,07,65,477 - 3,68,76,599) CLAIMED AGAINS T THE AFORESAID RECEIPTS TOTALING RS. 4,76,56,682/-. (2.4) IN PARAGRAPH NO. 6.2 OF THE ORDER OF LD. CI(A) FOR A.Y. 2012-13; AND IN PARAGRAPH NO. 15.1 OF THE ORDER OF LD. CIT(A) FOR A.Y. 2010-1 1; THE LD. CIT(A) HAS OBSERVED THAT FACTS IN THE YEARS UNDER CONSIDERATION ARE IDENTICA L THE FACTS OF A.Y. 2009-10. DURING APPELLATE PROCEEDINGS IN ITAT; NEITHER SIDE HAS BRO UGHT ANY DISTINGUISHING FACTS FOR THIS YEAR TO OUR ATTENTION AS COMPARED TO FACTS FOR A.Y. 2004-05 TO A.Y. 2009-10. THEREFORE, RESPECTFULLY FOLLOWING THE ORDER OF THE CO-ORDINATE BENCH OF ITAT, DELHI FOR A.Y. 2004-05 TO A. Y. 2009-10 VIDE AFORESAID ORDER DATED 28.03.2 018 IN ASSESSEES OWN CASE, WE DIRECT THE AO TO ASSESS THE AMOUNT OF RS. 2,39,66,739/- RE CEIVED BY ASSESSEE FOR USE OF THE ITA NOS.- 716/DEL/2016 AND THREE OTHERS APPEALS. M/S DELHI TOURISM TRANSPORTATION CORPORATION LTD. PAGE 14 OF 25 CRAFT STALLS IN A. Y. 2010-11 AND RS. 2,78,05,181/- FOR A. Y. 2012-13 AS ASSESSEES INCOME UNDER THE HEAD PROFITS AND GAINS OF BUSINESS OR PR OFESSION AND THE BALANCE AMOUNT OF RS. 98,87,914/- FOR A.Y. 2010-11 AND RS. 1,98,51,49 4/- FOR A.Y. 2012-13 IS TO BE ASSESSED AS INCOME FROM HOUSE PROPERTY. AGAIN, R ESPECTFULLY FOLLOWING AFORESAID ORDER DATED 28.03.2018 OF CO-ORDINATE BENCH OF ITAT, DELH I IN ASSESSEES OWN CASE, FOR A.Y. 2004-05 TO A.Y. 2009-10, WE ALSO DIRECT THE AO TO A LLOW NECESSARY DEDUCTIONS AGAINST THESE INCOMES AS PER LAW, AFTER ALLOWING OPPORTUNIT Y OF BEING HEARD TO THE ASSESSEE. GROUNDS 5 AND 6 IN ASSESSEES APPEAL FOR A. Y. 2010 -11 AND GROUNDS 2 AND 3 IN ASSESSEES APPEAL FOR A. Y. 2012-13 ARE ACCORDINGLY DISPOSED OFF WITH THE AFORESAID DIRECTIONS. (3) GROUND 7 IN ASSESSEES APPEAL FOR A.Y. 2010-11 PER TAINS TO THE ADDITION OF RS. 61,81,344/- TO THE INCOME OF THE ASSESSEE ON ACCOUN T OF UNDERSTATEMENT OF BANK INTEREST. THE AO HAD INITIALLY MADE ADDITION OF RS . 6,79,78,189/- IN THE ORIGINAL ASSESSMENT ORDER, BUT LATER REVISED THE SAME TO RS . 61,81,344/-. THE ADDITION WAS MADE BY THE AO ON THE GROUND THAT ALTHOUGH THE ASSESSEE HAD CLAIMED CREDIT FOR TAX DEDUCTED AT SOURCE (TDS, FOR SHORT) ON THE INTEREST INCOME FROM THE BANK, CORRESPONDING INTEREST INCOME WAS NOT OFFERED TO TAX BY THE ASSESSEE DURIN G THE YEAR. THE LD. CIT(A) CONFIRMED THIS ADDITION ON THE GROUND THAT THE ASSE SSEE HAD FAILED TO FILE ANY EVIDENCE TO RECONCILE THE AMOUNT OF RS.61,81,344/-. AT THE TIM E OF HEARING BEFORE US, THE LD. AR OF THE ASSESSEE SUBMITTED THAT THIS AMOUNT REFERS TO I NTEREST ACCRUING TO THE ASSESSEE DURING THE YEAR ON FIXED DEPOSITS IN THE BANK. HE FURTHER STATED THAT ALTHOUGH THIS INTEREST INCOME HAS NOT BEEN OFFERED TO TAX DURING THE YEAR BY THE ASSESSEE, CREDIT FOR ITA NOS.- 716/DEL/2016 AND THREE OTHERS APPEALS. M/S DELHI TOURISM TRANSPORTATION CORPORATION LTD. PAGE 15 OF 25 TDS MADE BY THE BANK WAS CLAIMED BY THE ASSESSEE BE CAUSE THE ASSESSEE WAS FACING LIQUIDITY CRUNCH. HE FURTHER SUBMITTED THAT THE AS SESSEE BEING A PUBLIC SECTOR UNDERTAKING, LENIENT VIEW MAY BE TAKEN SPECIALLY BE CAUSE OF THE LIQUIDITY CRUNCH FACED BY THE ASSESSEE. HE FURTHER ALSO SUBMITTED THAT CLAIM FOR TDS MAY BE DISALLOWED TO THE EXTENT IT PERTAINS TO CORRESPONDING INCOME NOT OFFE RED TO TAX BY THE ASSESSEE DURING THE YEAR; BUT THE ADDITION TO INCOME MAY BE DELETED. F URTHER, IN THIS REGARD, HE ALSO SUBMITTED THAT THE AO FAILED TO APPRECIATE THAT INT EREST INCOME DUE ON THE FIXED DEPOSITS KEPT WITH THE BANKS ACCRUED TO THE CUSTOMERS ON 31S T MARCH EACH YEAR ALTHOUGH THE SAME HAD NOT BECOME DUE FOR PAYMENT; BUT THE TDS EN TRIES ARE BOOKED ON THE CLOSING DATE OF THE FINANCIAL YEAR I.E. ON 31 ST MARCH EACH YEAR ON PROVISIONAL BASIS TO COMPLY WIT H THE PROVISIONS OF THE ACCOUNTING STANDARDS. HE ALSO SUBMITTED THAT THE INTEREST INCOME ON FIXED DEPOSITS WAS OFFERED TO TAX IN SUBSEQUENT YEAR(S), FOLLOWING CASH SYSTEM OF ACCOUNTING; IN THE YEAR IN WHICH THE WAS TOWARDS AC TUALLY RECEIVED BY THE ASSESSEE. HE RELIED ON ORDER OF CO-ORDINATE BENCH OF ITAT, DELHI IN THE CASE OF DCIT VS. LLOYD INSULATION (INDIA) LTD. IN ITA NO. 2400/DEL/2011 FO R THE PREPOSITION THAT: INCOME OF A TAXPAYER IS NOT REQUIRED TO BE COMPUTED MERELY WITH REFERENCE TO THE TDS CERTIFICATE, BUT ASSESSMENT OF AN INCOME IS ALTOGETHER AN INDEPENDEN T EXERCISE. HOWEVER, THE LD. AR OF THE ASSESSEE FAIRLY CONCEDED THAT THE REGULAR METHO D OF ACCOUNTING BEING FOLLOWED BY THE ASSESSEE IS THE MERCANTILE SYSTEM OF ACCOUNTING. (3.1) THE LD. DR APPEARING FOR REVENUE SUBMITTED THAT TH E ADDITION SHOULD BE CONFIRMED IN VIEW OF THE FACT THAT THE ASSESSEE HAS ALREADY CLAIMED CREDIT FOR TAX DEDUCTED AT SOURCE IN RESPECT OF THE AFORESAID AMOU NT OF RS.61,81,344/-. SHE ALSO ITA NOS.- 716/DEL/2016 AND THREE OTHERS APPEALS. M/S DELHI TOURISM TRANSPORTATION CORPORATION LTD. PAGE 16 OF 25 RELIED ON THE ORDERS OF THE AO AND LD. CIT(A). (3.2) WE AGREE RESPECTFULLY WITH THE PROPOSITION THAT I NCOME OF A TAXPAYER IS NOT REQUIRED TO BE COMPUTED MERELY WITH REFERENCE TO TH E TDS CERTIFICATE, BUT ASSESSMENT OF AN INCOME IS AN ALTOGETHER INDEPENDENT EXERCISE. WE WISH TO ADD THAT INCOME OF AN ASSESSEE UNDER THE HEAD PROFITS AND GAINS OF BU SINESS OR PROFESSION AND INCOME FROM OTHER SOURCES IS TO BE DETERMINED REGARDLESS OF WHETHER TAX WAS DEDUCTED AT SOURCE IN RESPECT OF AMOUNTS RE CEIVED OR ACCRUED TO THE ASSESSEE. WHAT IS RELEVANT IS THE SYSTEM OF ACCOUN TING REGULARLY EMPLOYED BY THE ASSESSEE - WHETHER IT IS CASH SYSTEM OR MERC ANTILE SYSTEM. THE ASSESSEE IS NOT PERMITTED TO USE MIXED OR HYBRID SY STEM OF ACCOUNTING UNDER WHICH SOME ITEMS OF INCOME / EXPENDITURE ARE ACCOUN TED FOR UNDER CASH SYSTEM AND THE REMAINING ITEMS OF INCOME / EXPENDIT URE ARE ACCOUNTED FOR UNDER MERCANTILE . IN THIS CONTEXT, IT IS USEFUL TO REFER TO STATUTOR Y PROVISIONS REGARDING METHOD OF ACCOUNTING CONTAINED IN SECTION 145 OF INCOME TAX ACT, (I.T. ACT, FOR SHORT); RELEVANT PORTION OF WHICH IS REP RODUCED BELOW:- 145 (1) INCOME CHARGEABLE UNDER THE HEAD PROFITS AND GAINS OF BUSINESS OR PROFESSION OR INCOME FROM OTHER SOURCES SHALL, SUBJECT TO THE PROVISIONS OF SUB-SECTION (2), BE COMPUTED IN ACCO RDANCE WITH EITHER CASH OR MERCANTILE SYSTEM OF ACCOUNTING REG ULARLY EMPLOYED BY THE ASSESSEE. (2) . (3) .. IT IS OBVIOUS FROM THE PERUSAL OF THE AFORESAID PR OVISIONS U/S 145(1) OF I.T. ACT THAT IT IS NOT OPEN FOR THE ASSESSEE TO FOLLOW CASH SYSTEM OF ACCOUNTING FOR SOME OF THE ITEMS AND MERCANTILE SYSTEM OF ACCOUNTING FOR THE REMAINI NG ITEMS. MIXED OR HYBRID SYSTEM ITA NOS.- 716/DEL/2016 AND THREE OTHERS APPEALS. M/S DELHI TOURISM TRANSPORTATION CORPORATION LTD. PAGE 17 OF 25 OF ACCOUNTING HAS LOST STATUTORY MANDATE W.E.F. 01. 04.1997, PURSUANT TO AMENDMENT OF SECTION 145 OF I.T. ACT BY THE FINANCE ACT, 1995. INCOME OF AN ASSESSEE UNDER THE HEAD OF PROFITS AND GAINS OF BUSINESS OR PROFESSIO N AND UNDER THE HEAD OF INCOME FROM OTHER SOURCES IS TO BE COMPUTED IN ACCORDANCE EITHER WITH CASH SYSTEM OF ACCOUNTING REGULARLY EMPLOYED BY THE ASSESSEE OR WI TH MERCANTILE SYSTEM OF ACCOUNTING REGULARLY EMPLOYED BY THE ASSESSEE. UNDISPUTEDLY, T HE REGULAR SYSTEM OF ACCOUNTING EMPLOYED BY THE ASSESSEE IS MERCANTILE SYSTEM. UNDER MERCANTILE SYSTEM OF ACCOUNTING ITEMS OF INCOME AND EXPENDITURE ARE ACCO UNTED FOR ON ACCRUAL BASIS; AND THE ACTUAL DATES OF PAYMENTS / RECEIPTS FOR VARIOUS ITEMS OF INCOME AND EXPENDITURE, ARE IRRELEVANT. ON THE OTHER HAND, UNDER CASH SYSTEM OF ACCOUNTING, VARIOUS ITEMS OF INCOME AND E XPENDITURE ARE ACCOUNTED FOR ON THE BASIS OF ACTUAL DATES OF RECEI PTS AND PAYMENTS; AND WHETHER THE SAME ACTUALLY ACCRUED DURING THE YEAR I S IRRELEVANT. ONCE THE ASSESSEE HAS OPTED TO FOLLOW MERCANTILE SYSTEM AS I TS REGULAR SYSTEM OF ACCOUNTING, IT IS NOT OPEN FOR THE ASSESSEE TO ACCOUNT FOR CERTAIN INCOME (INTEREST INCOME FROM FIXED DEPOSITS IN THE BANK, AS IN THIS CASE) UNDER CASH S YSTEM OF ACCOUNTING. IT IS NOT THE CASE OF THE ASSESSEE THAT INTEREST INCOME OF THE AS SESSEE FROM FIXED DEPOSITS IN BANK IS EXEMPT AND THUS, UNDISPUTEDLY THE INCOME IS TAXA BLE. UNDISPUTEDLY AGAIN, THE REGULAR SYSTEM OF ACCOUNTING FOLLOWED BY THE ASSESS EE IS MERCANTILE SYSTEM OF ACCOUNTING. UNDISPUTEDLY ALSO, INTEREST INCOME FRO M FIXED DEPOSITS IN BANK HAS ACCRUED TO THE ASSESSEE DURING THE YEAR BUT WAS NOT OFFERED AS INCOME ON ACCRUAL BASIS UNDER MERCANTILE SYSTEM OF ACCOUNTING. AS INCOME F ROM FIXED DEPOSITS IN BANK HAS ITA NOS.- 716/DEL/2016 AND THREE OTHERS APPEALS. M/S DELHI TOURISM TRANSPORTATION CORPORATION LTD. PAGE 18 OF 25 ACCRUED TO THE ASSESSEE IN ACCORDANCE WITH SYSTEM O F ACCOUNTING REGULARLY EMPLOYED (MERCANTILE SYSTEM, IN THIS CASE), THE INCOME HAS T O BE ASSESSED DURING THE YEAR. IT IS IRRELEVANT WHETHER THE ASSESSEE IS A PUBLIC SECTOR UNDERTAKING. UNLESS SPECIFICALLY PROVIDED UNDER LAW OR INTENDED BY NECE SSARY IMPLICATION UNDER SPECIFIC PROVISIONS OF LAW, OR HELD IN BINDING JUDI CIAL PRECEDENTS; A PUBLIC SECTOR UNDERTAKING CANNOT LEGITIMATELY CLAIM A PREF ERENTIAL TREATMENT IN DETERMINATION OF ITS TAX LIABILITIES. THEREFORE, WE HOLD THAT THE FACTS THAT ASSESSEE IS A PUBLIC SECTOR UNDERTAKING IS IRRELEVANT . IT IS ALSO IMMATERIAL WHETHER THE ASSESSEE WAS FACING LIQUIDITY CRUNCH. W HEN THE INCOME HAS TO BE ASSESSED DURING THE YEAR AND WHEN TAX IS TO BE PAID IN ACCOR DANCE WITH LAW ON SUCH INCOME, THE ASSESSEE CANNOT POSTPONE THE YEAR IN WH ICH THE INCOME WILL BE OFFERED TO TAX MERELY BECAUSE THE ASSESSEE HAS A LI QUIDITY CRUNCH. REQUIREMENT OF LIQUID FUNDS BY AN ASSESSEE, HOWSOEV ER GENUINE THE REQUIREMENT MAY BE, CANNOT BE ACCEPTED AS A LEGITIM ATE JUSTIFICATION FOR POSTPONEMENT OF THE YEAR IN WHICH INCOME WILL BE OF FERED BY THE ASSESSEE. THEREFORE, IN THE FACTS OF THE CASE BEFORE US, THE EXERCISE OF DETERMINING ASSESSEES INCOME LEAD US TO THE CONCLUSION THAT THE AFORESAID INCOME AMOUNTING TO RS. 61,81,344/- BY WAY OF INTEREST ON FIXED DEPOSITS IN BANK IS TO BE ASSESSED DURING THE YEAR. ACCORDINGLY, WE CONFIRM THE ADDITION OF AFOR ESAID AMOUNT OF RS. 61,81,344/-; AND DISMISS GROUND NO. 7 IN ASSESSEES APPEAL FOR A.Y. 2010-11. (4) GROUNDS 4.1 AND 4.2 IN ASSESSEES APPEAL FOR A.Y. 2012-13 WERE NOT PRESSED BY THE ASSESSEE; THEREFORE, THESE GROUNDS ARE DISMISSE D BEING NOT PRESSED. ITA NOS.- 716/DEL/2016 AND THREE OTHERS APPEALS. M/S DELHI TOURISM TRANSPORTATION CORPORATION LTD. PAGE 19 OF 25 (5) NOW WE COME TO THE APPEALS FILED BY REVENUE VIDE IT A NO. 2792/DEL/2015 FOR A.Y. 2010-11 AND ITA NO. 716/DEL/2016 FOR A.Y. 2012 -13. GROUNDS 1 AND 2 IN REVENUES APPEAL FOR A.Y. 2010-11 AND GROUND 1 IN R EVENUES APPEAL FOR A.Y. 2012-13 PERTAIN TO DISALLOWANCE MADE BY THE ASSESSING OFFIC ER U/S 43B OF I.T. ACT IN RESPECT OF PAYMENTS MADE BY THE ASSESSEE ON ACCOUNT OF ADVANCE EXCISE DUTY. THE DISALLOWANCES WERE MADE BY THE AO ON THE GROUND THA T PAYMENT OF ADVANCE EXCISE DUTY PERTAINS TO THE NEXT YEARS EXPENSES AND ARE N OT ALLOWABLE IN THE YEAR(S) IN WHICH IT HAS BEEN CLAIMED. ACCORDING TO THE ASSESSEE, AS PER THE EXCISE RULES & REGULATIONS SPECIFICALLY REGULATING THE LIQUOR INDUSTRY, THE AS SESSEE IS BOUND TO PAY THE EXCISE DUTY IN ADVANCE IN ORDER TO SECURE THE RELEASE OF TRANSP ORT PERMIT FOR SUPPLY OF LIQUOR AT VARIOUS LIQUOR SHOPS FOR IMMEDIATE ENSUING PERIOD. IT WAS SUBMITTED, THAT AS THE ASSESSEE IS ENGAGED IN THE RETAIL BUSINESS OF INDIA N MADE FOREIGN LIQUOR, THE ASSESSEE IS REQUIRED TO PAY / DEPOSIT THE EXCISE DUTY IN ADV ANCE TO THE STATE EXCISE DEPARTMENT. AT THE TIME OF HEARING BEFORE US, THE LD. AR OF THE ASSESSEE SUBMITTED AT THE OUTSET, THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY ORDER DATED 30.09.2013 OF CO- ORDINATE BENCH OF ITAT, DELHI FOR A.Y. 2008-09 AND A.Y. 2009-10 IN ITA NOS. 2814/DEL/2012 AND 4756/DEL/2012. THE LD. AR OF THE ASSESSEE FURTHER SUBMITTED THAT THE ISSUE HAS ALSO BEEN DECIDED IN FAVOUR OF THE AS SESSEE VIDE ORDER DATED 09.07.2014 OF HONBLE DELHI HIGH COURT IN ASSESSEES OWN CASE IN ITA NOS. 267/2014 AND 268/14. THE LD. DR APPEARING FOR REVENUE AGREE THAT THIS IS SUE IS COVERED IN FAVOUR OF THE ASSESSEE VIDE AFORESAID ORDERS OF HONBLE DELHI HIG H COURT AND CO-ORDINATE BENCH OF ITAT, DELHI IN ASSESSEES OWN CASE FOR A.Y. 2008-09 AND A.Y. 2009-10. RESPECTFULLY ITA NOS.- 716/DEL/2016 AND THREE OTHERS APPEALS. M/S DELHI TOURISM TRANSPORTATION CORPORATION LTD. PAGE 20 OF 25 FOLLOWING THESE JUDICIAL PRECEDENTS, WE ALSO DECIDE THIS ISSUE IN FAVOUR OF THE ASSESSEE AND DIRECT THE AO TO DELETE ADDITIONS OF RS. 7,50,4 8,000/- FOR A.Y. 2010-11 AND RS. 5,20,17,982/- FOR A.Y. 2012-13 MADE BY THE ASSESSIN G OFFICER U/S 43B OF I.T. ACT ON ACCOUNT OF ADVANCE EXCISE DUTY. (6) GROUND 3 IN REVENUES APPEAL FOR A.Y. 2010-11 AND GROUND 2 IN REVENUES APPEAL FOR A.Y. 2012-13 PERTAIN TO DISALLOWANCE OF THE PROVISION FOR THE LEAVE ENCASHMENT. THE AO INVOKED SECTION 43B(F) OF I.T. A CT AND MADE ADDITIONS AMOUNTING TO RS. 1,80,75,136/- FOR A.Y. 2010-11 AND RS. 1,43, 34,019/- FOR A.Y. 2012-13; ON THE GROUND THAT THESE AMOUNTS WERE NOT ACTUALLY PAID BY THE ASSESSEE TILL THE DUE DATES OF FILING OF RETURN. AT THE TIME OF HEARING BEFORE US , THE LD. DR SUBMITTED THAT THIS ISSUE IS COVERED IN FAVOUR OF REVENUE BY AFORESAID ORDER DAT ED 28.03.2018 OF CO-ORDINATE BENCH OF ITAT, DELHI IN ASSESSEES OWN CASE FOR A.Y . 2004-05 TO A.Y. 2009-10. THE LD. AR OF THE ASSESSEE AGREED THAT THIS ISSUE IS COVERE D AGAINST THE ASSESSEE VIDE AFORESAID ORDER DATED 28.03.2018 OF CO-ORDINATE BENCH OF ITAT , DELHI IN ASSESSEES OWN CASE. RESPECTFULLY FOLLOWING THE AFORESAID DECISION OF CO -ORDINATE BENCH OF ITAT, DELHI VIDE ORDER DATED 28.03.2018; WE ALSO DECIDE THIS ISSUE I N FAVOUR OF REVENUE AND AGAINST THE ASSESSEE. ACCORDINGLY, THE AFORESAID ADDITIONS AMO UNTING TO RS. 1,80,75,136/- FOR A.Y. 2010-11 AND RS. 1,43,34,019/- FOR A.Y. 2012-13 ARE CONFIRMED. (7) GROUND 4 IN REVENUES APPEAL FOR A.Y. 2010-11 PERT AINS TO DISALLOWANCE OF THE PAYMENT MADE BY THE ASSESSEE TO CENTRAL ROAD RESEAR CH INSTITUTE (CRRI, FOR SHORT) FOR UNDERTAKING RESEARCH REGARDING THE CONCRETE STR ENGTH IN BRIDGES AND HAD CLAIMED ITA NOS.- 716/DEL/2016 AND THREE OTHERS APPEALS. M/S DELHI TOURISM TRANSPORTATION CORPORATION LTD. PAGE 21 OF 25 WEIGHTED DEDUCTION @ 125% OF THE SUM SO PAID U/S 35 (1)(IIA) OF I.T. ACT. THE AO DISALLOWED THIS CLAIM ON THE GROUND THAT THE DOCUME NTARY EVIDENCE DID NOT CONTAIN THE NAME OF THE ASSESSEE. THE LD. CIT(A) ALLOWED THE C LAIM OF THE ASSESSEE OBSERVING AS UNDER: HAVING GONE THROUGH THE SUBMISSION AND THE ORDER O F ASSESSMENT, IT EMERGES THAT THE CENTRAL ROAD RESEARCH INSTITUTE IS A UNIT OF COUNCIL FOR SCIENTIFIC AND INDUSTRIAL RESEARCH AND THE INCOME OF WHICH IS EXEM PT U/S 10(23C) (VI) IF THE ACT. THE ASSESSING OFFICER IS DIRECTED TO ALLOW THE DEDU CTION OF RS. 8,82,40/- WITH THE WEIGHTED DEDUCTION REBATE U/S 35(1)(IIA) OF THE ACT . THE DISALLOWANCE OF RS. 11,03,000/- MADE BY THE ASSESSING OFFICER IS THEREF ORE, DELETED. (7.1) AT THE TIME OF HEARING BEFORE US, THE LD. DR RELIE D ON THE ORDER OF THE AO. THE LD. AR OF THE ASSESSEE RELIED ON THE ORDER OF THE L D. CIT(A). THE LD. AR FURTHER SUBMITTED THAT CSIR HAS BEEN APPROVED, THROUGH NOTI FICATION NO. 53/2011 [F.NO. 203/73/2010/ITA-II], DATED 30.09.2011, FOR THE PURP OSE OF SECTION 35(1)(II), READ WITH RULES 5C AND 5E OF THE INCOME-TAX RULES, 1962, IN TH E CATEGORY OF OTHER INSTITUTION. HE ALSO SUBMITTED THAT THE PAYMENT OF RS. 8,82,400/ - TO CRRI WAS MADE VIDE CHEQUE NO. 651127 DATED 12.06.2009. HE FURTHERMORE SUBMIT TED THAT THE DIRECTOR GENERAL OF INCOME TAX (EXEMPTION), NEW DELHI VIDE ORDER NO. F .NO. DGIT(E)/10(23C)(IV)/2010- 11/1508 DATED 22 ND FEBRUARY 2011 PASSED UNDER THE PROVISIONS OF SECTI ON 10(23C)(IV) HAS EXEMPTED CSIR FROM PAYMENT OF TAXES FOR THE AY 2010-11. THE LD. AR ALSO FILED RELEVANT EVIDENCES IN THIS REGARD AS PART OF THE PA PER BOOKS. AFTER CONSIDERING THE ORDER OF THE LD. CIT(A) AND ON PERUSAL OF THE EVIDE NCES FILED BY THE LD. AR OF THE ASSESSEE AND AFTER TAKING INTO ACCOUNT THE SUBMISSI ONS MADE BY THE LD. AR OF THE ASSESSEE, WE ARE OF THE VIEW THAT THE CLAIM MADE BY THE ASSESSEE IS PROPER AND ITA NOS.- 716/DEL/2016 AND THREE OTHERS APPEALS. M/S DELHI TOURISM TRANSPORTATION CORPORATION LTD. PAGE 22 OF 25 SUSTAINABLE. THE ORDER PASSED BY LD. CIT(A) ON THI S ISSUE IS SOUND, PROPER AND IN ACCORDANCE WITH LAW IN THE FACTS AND CIRCUMSTANCES OF THE CASE. THE LD. DR FAILED TO MAKE ANY CASE FOR US TO WARRANT INTERFERENCE WITH T HE DECISION OF LD. CIT(A) ON THIS ISSUE. THEREFORE, THE ORDER OF THE LD. CIT(A) ON T HIS ISSUE IS CONFIRMED AND GROUND 4 OF REVENUES APPEAL FOR A.Y. 2010-11 IS ACCORDINGLY DISMISSED. (8) GROUND 5 OF REVENUES APPEAL FOR A.Y. 2010-11 AND GROUND 3 OF REVENUES APPEAL FOR A.Y. 2012-13 PERTAIN TO THE DISALLOWANCE S OF LOSS CLAIMED BY THE ASSESSEE, AMOUNTING TO RS. 32,79,998/- FOR A.Y. 2010-11 AND R S. 44,65,663/- FOR A.Y. 2012-13, ON THE RUNNING OF DELHI INSTITUTE OF TOURISM AND TR AVEL MANAGEMENT (DITTM, FOR SHORT). IN A.Y. 2010-11 THE DISALLOWANCE WAS MADE BY THE AO, STATING AS UNDER: THE ASSESSEE HAD CLAIMED A LOSS OF RS. 32,79,998/- IN RESPECT OF DELHI INSTITUTE OF TOURISM AND TRAVEL MANAGEMENT. THE ASSESSEE WAS ASKED TO SUBMIT THE DETAILS IN RESPECT OF ABOVE SAID LOSS. THE ASSESSE E IN ITS REPLY STATED THAT FOR THESE PLEASE REFER TO PROFIT & LOSS ACCOUNTS OF DIT TM FILED IN THE ANNUAL REPORT. THE NET LOSS AS APPEARING IN P/L A/C AND CERTIFIED BY THE AUDITORS HAVE BEEN CLAIMED AND FILED ANNUAL ACCOUNTS FOR THE YEAR 201 0-11 ALONG WITH NOTE NO. 1 NOTES TO ACCOUNTS FORMING PART OF ANNUAL ACCOUNTS S TATES THAT THE MANAGEMENT OF DELHI CHAPTER OF THE INSTITUTE OF TOURISM AND TR AVEL MANAGEMENT WAS GIVEN TO THE CORPORATION OF 1 ST JANUARY, 1993 INITIALLY FOR A PERIOD OF 5 YEARS. AS PER THE DECISION OF MINISTRY OF TOURISM, GOVT. OF INDIA IN THE MEETING HELD ON 4 TH NOVEMBER, 1992 ITS STAND RENEWED FOR ANOTHER 5 YEAR S UPTO 2004, AND THEREAFTER UPTO 2009. SINCE THE OWING THE PROPRIETY OF THE IN STITUTE IS STILL NOT YET DECIDED, THE ACCOUNTS HAVE BEEN PREPARED AND ANNEXED AS PER PRACTICE CONSISTENTLY FOLLOWED SINCE ITS SETUP ON 1993. ON THE BASIS OF ABOVE LOSS CLAIMED IN RESPECT TO DE LHI INSTITUTE OF TOURISM AND TRAVEL MANAGEMENT STANDS ADDED BACK TO THE INCOME O F THE ASSESSEE. IN A.Y. 2012-13, THE DISALLOWANCE WAS MADE BY AO, H OLDING AS UNDER: ITA NOS.- 716/DEL/2016 AND THREE OTHERS APPEALS. M/S DELHI TOURISM TRANSPORTATION CORPORATION LTD. PAGE 23 OF 25 6.10 IT HAS ALSO BEEN NOTICED THAT IN THE AY 2007- 08 WHERE NET PROFIT OF THE SAME INSTITUTE WAS ADDED BY AO, THE ASSESSEE HAS CL AIMED THAT THE OWNERSHIP OF INSTITUTE BELONGS TO IITM- GWALIOR AND NOT TO DTTDC . WHEREAS IN THE PREVIOUS YEAR UNDER ASSESSMENT, THE NET LOSS HAS BEEN CLAIME D IN RETURNED INCOME AS NET BUSINESS LOSS. THIS RESULTS TO THE CONTRARY STAND OF THE ASSESSEE WITHOUT ANY REASONABLE CAUSE & EXPLANATION FOR THESE TWO SITUAT IONS ON RECORD. ON THE BASIS OF ABOVE FACTS, NET LOSS CLAIMED IN RE SPECT OF UNIT TITLED AS DELHI INSTITUTE OF TOURISM & TRAVEL MANAGEMENT STANDS ADD ED BACK TO THE INCOME OF ASSESSEE CORPORATION. FOR BOTH THE YEARS, THE LD. CIT(A) ALLOWED ASSESSEE S CLAIM, HOLDING THAT THE ASSESSEE HAS BEEN EXCLUSIVELY MANAGING, ADMINISTRATING THIS INSTITUTE WITHOUT ANY INTERFERENCE OF THE CONCERNED MINISTRY; AND THAT THE AO HAD NOT DISPUTED THAT THE INSTITUTE WAS RUN BY THE ASSESSEE AND HAD SUSTAINED THE LOSSES CLAIME D BY THE ASSESSEE. AT THE TIME OF HEARING BEFORE US, THE LD. DR DREW OUR ATTENTION TO THE FACTS THAT THE ISSUE WAS REMANDED BACK TO THE AO BY THE ORDER DATED 28.03.20 18 OF CO-ORDINATE BENCH OF ITAT, DELHI IN ASSESSEES OWN CASE FOR A.Y. 2009-10 . THE LD. DR SUBMITTED THAT FOR A.Y. 2010-11 AND 2012-13 ALSO THIS ISSUE MAY BE REM ANDED BACK TO THE AO FOR FRESH ORDER AFTER NECESSARY VERIFICATION OF THE CLAIM. T HE LD. AR OF THE ASSESSEE AGREED THAT THE ISSUE MAY BE REMANDED BACK TO THE AO FOR F RESH ORDER. IN VIEW OF THE FOREGOING, WE REMAND THIS ISSUE FOR A.Y. 2010-11 AN D A.Y. 2012-13 BACK TO THE FILE OF THE AO FOR FRESH ORDER ON THIS ISSUE, AFTER NECESSA RY VERIFICATION OF ASSESSEES CLAIM. (9) GROUND 6 OF REVENUES APPEAL FOR A.Y. 2010-11 PERT AINS TO DISALLOWANCE OF RS. 33,74,567/- BEING 50% OF THE EXPENSES CLAIMED BY AS SESSEE TOWARDS TOURISM PROMOTION EXPENSE AND HIRING OF TENT & PURPOSE TH EREOF. THE LD. CIT(A) DELETED THIS ADDITION ON THE GROUND THAT NO FINDING OF FACT WAS RECORDED BY THE AO, THAT ANY ITA NOS.- 716/DEL/2016 AND THREE OTHERS APPEALS. M/S DELHI TOURISM TRANSPORTATION CORPORATION LTD. PAGE 24 OF 25 PARTICULAR EXPENDITURE WAS NOT GENUINE OR NOT EXPEN DED FOR THE BUSINESS. AT THE TIME OF HEARING BEFORE US, THE LD. DR RELIED ON THE ORDE R OF THE AO. THE LD. AR OF THE ASSESSEE RELIED ON THE ORDER OF THE LD. CIT(A). HE ALSO SUBMITTED THAT THE AO HAD NOT PROVIDED OPPORTUNITY TO PRODUCE THE RELEVANT DETAIL S AND DOCUMENTARY EVIDENCES IN SUPPORT OF THESE EXPENSES. HE SUBMITTED THAT THE A SSESSEE IS WILLING TO PRODUCE THE SAME. LD. AR OF THE ASSESSEE SUBMITTED THAT THE IS SUE MAY BE REMANDED BACK TO THE FILE OF THE AO FOR VERIFICATION AND FRESH ORDER ON THIS ISSUE. IN REPLY, THE LD. DR DID NOT EXPRESS ANY OBJECTION TO REMANDING OF THE ISSUE BACK TO THE FILE OF THE AO FOR VERIFICATION AND FRESH ORDER. IN THE FITNESS OF TH INGS, AND AS BOTH SIDES AGREE, WE REMAND THIS ISSUE TO THE FILE OF THE AO FOR NECESSA RY VERIFICATION AND FRESH ORDER. THE AO IS DIRECTED, BEFORE HE PASSES FRESH ORDER, TO PR OVIDE OPPORTUNITY TO THE ASSESSEE TO PRODUCE / SUBMIT RELEVANT DETAILS AND DOCUMENTARY E VIDENCES. (10) IN THE COMBINED RESULT, ALL THE FOUR APPEALS ARE P ARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH DAY OF MARCH, 2019. SD/- SD/- (SUDHANSHU SRIVASTAVA) (ANADEE NATH M ISSHRA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 20.03.2019 (POOJA) ITA NOS.- 716/DEL/2016 AND THREE OTHERS APPEALS. M/S DELHI TOURISM TRANSPORTATION CORPORATION LTD. PAGE 25 OF 25 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 19/3/19 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 20/3/19 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER