IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCHES "E" : DELHI
BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER
AND
SHRI T.S. KAPOOR, ACCOUNTANT MEMBER
ITA.No.6567/Del./2015
Assessment Year 2012-2013
M/s. Ansal Urban
The DCIT, Circle-2 (2), Condominium Pvt. Ltd.,
Room No.392, C.R. vs. 115, Ansal Bhawan,
Building, I.P. Estate, 16 Kasturba Gandhi Marg,
New Delhi 110 002. New Delhi 110 001.
PAN AAHCA2956R
(Appellant) (Respondent)
For Revenue : Ms. Rinku Singh, Sr. D.R.
For Assessee : Shri Satyam Setti, Advocate.
Date of Hearing : 05.08.2019
Date of Pronouncement : 07.08.2019
ORDER
PER BHAVNESH SAINI, J.M.
This appeal by Revenue has been directed against
the Order of the Ld. CIT(A)-1, New Delhi, Dated 18.09.2015,
for the A.Y. 2012-2013 on the following grounds :
1. "The Ld. CIT(A) has erred in law and on facts in
allowing the claim of expenses of Rs.1,00,49,126/-
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ITA.No.6567/Del./2015 M/s. Ansal Urban
Condominium Pvt. Ltd., New Delhi.
without revising the return u/s 139(5) by the
assessee which is not permissible in view of the
decision of Hon'ble Supreme Court in the case of
Goetze India (Ltd.).
2. Without prejudice to the above Ld. CIT(A) has erred in
law and on facts in allowing the above claim without
affording opportunity to the AO to verify the veracity
of the claim."
2. Briefly the facts of the case are that assessee filed
return of income showing loss of Rs.1.05 crores. The
assessee company was incorporated as a subsidiary of
Ansal Landmark Township Pvt. Ltd. (ALTPL), for the
purpose of developing a Group Housing Scheme in
Ghaziabad. The assessee company is developing a group
housing project namely Acquapolis Project and follows
percentage of completion method for recognizing income. As
per statement of Profit & Loss Account, the assessee has
shown other income amounting to Rs.10,14,644/-. After
claiming expenses, loss of Rs.2,23,05,212/- has been shown
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ITA.No.6567/Del./2015 M/s. Ansal Urban
Condominium Pvt. Ltd., New Delhi.
in the statement of Profit & Loss Account. In the
computation of income, the assessee has added back the
statutory disallowances and after claiming depreciation as
per Income tax Act, 1961, net loss of Rs.1,05,72,733/- has
been returned. During the course of assessment proceeding,
the assessee vide its letter dated 12.01.2015 submitted that
the ROC expenses with regard to increase in share capital
has been inadvertently added back to the tune of
Rs.1,17,67,986/- whereas the actual amount of the
expenditure is only Rs.17,18,860/-. The A.O. however do
not accept the claim of assessee because no revised return
have been filed under section 139(5) of the I.T. Act. The A.O.
relied upon Judgment of the Hon'ble Supreme Court in the
case of Goetze India Ltd., vs. CIT [2006] 157 Taxman 1 (SC)
and disallowed the claim of assessee.
3. The assessee reiterated the submissions made
before the A.O. and produced the documentary evidences on
record that there was a mistake in making claim before A.O.
He has submitted that A.O. shall have to assess the
assessee on correct tax liability as per Law and various
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ITA.No.6567/Del./2015 M/s. Ansal Urban
Condominium Pvt. Ltd., New Delhi.
decisions have been relied upon. The Ld. CIT(A) examined
the issue and noted that during assessment proceedings
assessee filed revised computation of income before A.O.
whereby it has claimed that expenses of Rs.1,00,49,126/-
were wrongly added back in the computation of income
along with expenses of Rs.17,18,860/- pertaining to the
amount paid for increase in authorised share capital. The
assessee submitted that only an amount of Rs.17,18,860/-
pertain to increase in authorised share capital and the
remaining expenditure of Rs.1,00,49,126/- comprise of plan
sanction fee, development fee, environment and pollution
fee etc., The assessee made such a claim before A.O. to
highlight that it is a mistake in making the claim. The
assessee relied upon Judgment of Hon'ble Delhi High Court
in the case of CIT vs. Jai Parabolic Springs Ltd., 306 ITR 42
(Del.) in which it was held that "CIT(A) had the jurisdiction to
entertain the additional claim not filed before A.O." and
other decisions of different High Courts were also referred
to. The Ld. CIT(A), therefore, noted that case of the assessee
is covered by these Judgments, therefore, claim of expenses
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ITA.No.6567/Del./2015 M/s. Ansal Urban
Condominium Pvt. Ltd., New Delhi.
of Rs.1,00,49,126/- is fully allowable. The claim of assessee
was accordingly allowed.
4. After considering the rival submissions, we are of
the view that no interference is called for in the matter. The
Ld. D.R. relied upon Order of the A.O. and submitted that
since no revised return was filed before A.O, therefore, claim
of excluding expenses should not have been allowed.
5. On the other hand, Learned Counsel for the
Assessee submitted that appellate authority have power to
entertain the claim which is not made before A.O.
6. In the present case, the A.O. did not dispute on
merit that claim of assessee is justified. Since it is a mistake
on record, therefore, the Ld. CIT(A) being First Appellate
Authority has correctly entertained the claim of assessee.
The Revenue has not filed any appeal on merit to challenge
the Order of Ld. CIT(A) that assessee is not entitled to claim
on merits. The issue is, therefore, covered by the Judgment
of Hon'ble Delhi High Court in the case of CIT vs. Jai
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ITA.No.6567/Del./2015 M/s. Ansal Urban
Condominium Pvt. Ltd., New Delhi.
Parabolic Springs Ltd., (supra) in which it was held as
under :
"Held, dismissing the appeal, that there was no
prohibition on the powers of the Tribunal to entertain an
additional ground which according to the Tribunal arose
in the matter and for the just decision of the case. There
was no infirmity in the order of the Tribunal."
6.1. In view of the above, no infirmity have been
pointed out in the Order of the Ld. CIT(A). Departmental
appeal fails and is dismissed.
7. In the result, appeal of Department dismissed.
Order pronounced in the open Court.
Sd/- Sd/-
(T.S. KAPOOR) (BHAVNESH SAINI)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Delhi, Dated 07th August, 2019
VBP/-
Copy to
1. The appellant
2. The respondent
3. CIT(A) concerned
4. CIT concerned
5. D.R. ITAT `E' Bench, Delhi
6. Guard File.
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ITA.No.6567/Del./2015 M/s. Ansal Urban
Condominium Pvt. Ltd., New Delhi.
// BY Order //
Assistant Registrar : ITAT Delhi Benches :
Delhi.
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