M/s.GMR Enterprises Private Limited ( Successor to GMR Projects Private Limited), Bangalore V. Assistant Commissioner of Income-Tax, Central Circle- (2)(2), Bangalore

MA 53/BANG/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 9284 (ITAT-BANGALORE)
• Duration Of Justice: 9 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-01-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 04-04-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N SUKUMAR
• Assessee Lawyers: SUNIL JAIN
• Section: 37; 12; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, BANGALORE BEFORE SHRI A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER [ M P NO. 53 /B ANG /201 9 (IN ITA NO.2216/BANG/2016)] (ASSESSMENT YEAR S : 20 1 2 - 1 3 ) M/S. GMR ENTERPRISES PVT. LTD., (SUCCESSOR TO GMR PROJECTS PVT. LTD.,) NO.25/1, SKIP HOUSE, MUSEUM ROAD, BENGALURU 560 025. PAN: A AACN 6998 D APPLICANT VS. THE ACIT, CENTRAL CIRCLE 2(2 ), BENGALURU . RESPONDENT APPLICANT BY : SHRI. SUNIL JAIN , CA REVENUE BY : SHRI. N. SUKUMAR , ADDL.C IT DATE OF HEARING : 03 / 01 /20 20 DATE OF PRONOUNCEMENT : 10 / 01 /20 20 O R D E R PER A. K. GARODIA, AM: THIS MISCELLANEOUS PETITION (MP) IS FILED BY THE ASSESSEE IN WHICH IT IS STATED THAT CERTAIN APPARENT MISTAKES ARE THERE IN THE IMPUGNED TRIBUNAL ORDER. THE BENCH WANTED TO KNOW THE RELEVANT PARAS OF THE MP IN WHICH THE ASSESSEE HAS POINTED OUT THE ALLEGED APPARENT MISTAKE IN THE TRIBUNAL ORDER. IN REPLY, IT WAS SUBMITTED BY THE LEARNED AR OF THE ASSESSEE THAT PARAS 10 TO 11.3.1 OF THE MP ARE RELEVANT IN THIS REGARD. HENCE, WE REPRODUCE THESE PARAS FROM THE MP FILED BY THE ASSESSEE. MP NO. 53/BANG/2019 (IN ITA NO.2216/BANG/2016) PAGE 2 OF 5 MP NO. 53/BANG/2019 (IN ITA NO.2216/BANG/2016) PAGE 3 OF 5 2. THE LEARNED AR OF THE ASSESSEE REITERATED THE SAME CONTENTIONS WHICH ARE NOTED IN THESE PARAS OF THE MP AS REPRODUCED ABOVE. HIS MAIN ARGUMENT WAS THIS THAT THE TRIBUNAL HAS NOT CONSIDERED THE ARGUMENTS ADVANCED BY LEARNED AR OF THE ASSESSEE IN THE COURSE OF HEARING OF THIS APPEAL AND THE TRIBUNAL HAS NOT CONSIDERED THE SYNOPSIS WITH RELEVANT DOCUMENTS FILED ON 18.09.2018. IN THIS REGARD, WE FIND THAT IN PARA NO.10 OF THE IMPUGNED TRIBUNAL ORDER, THE VERY FIRST LINE SAYS THAT WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. HENCE, THIS CONTENTION IS NOT FACTUALLY CORRECT THAT THE TRIBUNAL HAS NOT CONSIDERED THE CONTENTIONS PUT FORWARD BY THE LEARNED AR OF THE ASSESSEE IN THE COURSE OF HEARING OF THIS APPEAL AND THE MATERIAL AVAILABLE ON RECORD. IT IS SEEN THAT AFTER SAYING THIS IN PARA NO.10 OF THE IMPUGNED TRIBUNAL ORDER THAT THE TRIBUNAL MP NO. 53/BANG/2019 (IN ITA NO.2216/BANG/2016) PAGE 4 OF 5 HAS HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD, THE TRIBUNAL HAS PROCEEDED TO EXAMINE THE ALLOWABILITY OF THE ASSESSEES CLAIM UNDER SECTION 37 OF THE IT ACT, 1961. AS PER PARA NO.6 OF THE ASSESSMENT ORDER IN WHICH THE AO HAS DECIDED THE ISSUE OF ADVERTISING EXPENSES OF RS.3 CRORES, IT IS SEEN THAT THIS CLAIM WAS DISALLOWED BY THE AO UNDER SECTION 37 OF THE IT ACT, 1961 WITH A FINDING THAT THIS CLAIM IS NOT ENTIRELY RELATED TO THE BUSINESS ACTIVITIES OF THE ASSESSEE. ALTHOUGH THE LEARNED CIT(A) HAD ALLOWED THE CLAIM OF THE ASSESSEE AND REVERSED THE ORDER OF THE AO ON THIS ISSUE BUT WHEN THE REVENUE HAS FILED THE APPEAL BEFORE THE TRIBUNAL ON THIS ASPECT, THE TRIBUNAL IS REQUIRED TO EXAMINE THE ALLOWABILITY OF THE CLAIM IN VIEW OF THE PROVISIONS OF SECTION 37 OF IT ACT, 1961 AND THE TRIBUNAL HAS DONE SO AS PER THE IMPUGNED TRIBUNAL ORDER. IN THE SAME PARA NO.10 OF THE IMPUGNED TRIBUNAL ORDER, THIS FACT IS ALSO NOTED BY THE TRIBUNAL THAT THE ASSESSEE WAS ENGAGED IN THE BUSINESS OF CIVIL CONSTRUCTION AND CONSTRUCTING HIGHWAYS IN VARIOUS PARTS OF INDIA. AFTER NOTING THIS FACT, THE TRIBUNAL HAS NOTED THIS FACT ALSO THAT THE PRESENT ASSESSEE BEFORE US IS AN IN-HOUSE PROJECT EXECUTION DIVISION OF THE GMR GROUP AND IS NOT GROUP COMPANY ONLY. THEREAFTER, THE TRIBUNAL HAS NOTED IN THE SAME PARA 10 OF THE TRIBUNAL ORDER THAT ON THE BASIS OF MATERIAL AVAILABLE ON RECORD, THE ASSESSEE HAS FAILED TO DEMONSTRATE EITHER BEFORE THE AO OR BEFORE THE TRIBUNAL AS TO HOW THIS EXPENDITURE HAS RESULTED IN GETTING MORE PROJECTS IN INFRASTRUCTURE INDUSTRY AND FURTHER HOW IT IS RELATED TO THE BUSINESS OF ASSESSEE. THIS FINDING IS ALSO GIVEN BY THE TRIBUNAL THAT THE ASSESSEE HAS NOT EXECUTED ANY INDEPENDENT PROJECT OR HAS NOT MADE ANY ENDEAVOR TOWARDS GETTING SUCH PROJECTS. WITH THIS FINDING, THE TRIBUNAL HAS ULTIMATELY HELD THAT THIS EXPENDITURE IS NOT ALLOWABLE UNDER SECTION 37 OF THE IT ACT, 1961. IN VIEW OF THIS, WE ARE OF THE CONSIDERED OPINION, THERE IS NO APPARENT MISTAKE IN THE TRIBUNAL ORDER WHICH CAN BE RECTIFIED U/S 254 (2) AND HENCE, HOLD THAT FIND NO MERIT IN THIS MP FILED BY THE ASSESSEE. 3. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. SD/- SD/- (PAVAN KUMAR GADALE) JUDICIAL MEMBER (A. K. GARODIA) ACCOUNTANT MEMBER PLACE : BANGALORE DATED : 10/01/2020 /NS/* MP NO. 53/BANG/2019 (IN ITA NO.2216/BANG/2016) PAGE 5 OF 5 COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A)-II BANGALORE 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL BANGALORE