Niagara Hotels & Builders Pvt. Ltd., New Delhi V. ITO, Ward-13(2), New Delhi

MA 440/DEL/2018

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3898 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 11 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-06-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2010-2011
• Appeal Filed On: 27-06-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Depreciation
• Section: 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘E’, NEW DELHI BEFORE SH. N. K. BILLAIYA, ACCOUNTANT MEMBER AND SH. ANUBHAV SHARMA, JUDICIAL MEMBER MA No.440/Del/2018 (In ITA No.5937/Del/2013) Assessment Year: 2010-11 Niagara Hotels & Builders Pvt. Ltd. G-6 & 7, Vikram Tower, 16, Rajendra Place, New Delhi-110008 Vs Addl. CIT Circle – 13 91) New Delhi (APPELLAN (RESPONDENT) Appellant Sh. Paritosh Garg, CA Respondent Ms. Garima Sharma, Sr. DR Date of hearing: 17/06/2022 Date of Pronouncement: 17/06/2022 ORDER PER N.K. BILLAIYA, AM: This miscellaneous Application by the assessee is directed towards the order of this Tribunal in ITA No.5937/Del/2013 for A.Y.2010-11. 2. The relevant part of the miscellaneous application read as under :- 2 The Hon’ble Tribunal, at para 7 of the order dated 13.12.2017 (impugned herein), confirmed the decision taken by the lower authorities, albeit on a different reasoning. The Hon’ble Tribunal held that deduction of construction expenses would not be allowed since the applicant is claiming standard deduction for repair and maintenance on such property in terms of section 24(a) of the Act. The Tribunal at Para 7 of the impugned order held as under: “15. We have considered the submission of both the parties and perused the material available on the record. In the present case, while deciding the first issue relating to the income received by the assessee from the rent of the same building for which the impugned expense were incurred on account of repair, we have held in the former part of this order by following the judgment of Hon'ble Jurisdictional high Court that the income to be held under the head house property and deduction u/s 24(a) of the Act for repairs to be allowed. Since, the repair & maintenance has already been allowed as per the provision contained in section 24(a) of the Act. Therefore, no separate deduction can be allowed for repair & maintenance. Accordingly, we do not see any merit in this ground of the assessee’s appeal. ” The underlined observations, as aforesaid have inadvertently 3 been made the Hon’ble Tribunal, without considering that the disallowance of Rs. 2,27,379 under section 24(a) of the Act was not the subject matter of appeal filed by the applicant. The grievance of the applicant was that the impugned addition has resulted in double disallowance in the facts of the present case. In other words, by inadvertently adding the amount of Rs. 2,27,379 (on which even depreciation is not claimed by the applicant), the applicant has increased its profits to that extent, in the return of income. The applicant, vide Ground of Appeal Nos 2-2.1, sought correction of this mistake and does not seek to claim any deduction from its Net Profit reported as income under head business. 3. We have given a thoughtful consideration to the contents of the miscellaneous application. We are of the considered view that the Tribunal has only expressed its opinion when it said “since the repair and maintenance has already been allowed as per the provisions contained in section 24(a) of the Act. Therefore, no separate deduction can be allowed for repair and maintenance”. We are of the considered view that there is no double disallowance by the Tribunal it has simply stated that no separate deduction will be allowed and if the assessee has not claimed any separate deduction there is no question of any further disallowance. In our considered view there is no mistake apparent from record rectifiable u/s. 254 (2) of the Act. The miscellaneous application is accordingly disposed off. 4 4. In the result, the miscellaneous application filed by the assessee is dismissed. Decision announced in the open court on 17.06.2022. Sd/- Sd/- (ANUBHAV SHARMA) (N. K. BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER *NEHA, Sr. Private Secretary* Date:- 17.06.2022 Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI Date of dictation Date on which the typed draft is placed before the dictating Member 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 17.06.2022 Date on which the file goes to the Bench Clerk Date on which file goes to the Head Clerk. The date on which file goes to the Assistant Registrar for signature on the order Date of dispatch of the Order