DCIT CENTRAL CIRCLE-30 , DELHI vs. AVANTHA REALTY LTD. , DELHI
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Income Tax Appellate Tribunal, DELHI BENCH “H”: NEW DELHI
INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “H”: NEW DELHI BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI ANUBHAV SHARMA, JUDICIAL MEMBER ITA No. 936/Del/2022 (Assessment Year: 2016-17) DCIT, Vs. Avantha Realty Ltd, Central Circle-30, 124, Thapar House, Delhi Janpath, New Delhi (Appellant) (Respondent) PAN: AAACJ8030A Assessee by : Shri Upvan Gupta, Adv Revenue by: Ms. Yamini, Sr. DR Date of Hearing 28/11/2022 Date of pronouncement 30/11/2022
O R D E R PER ANUBHAV SHARMA, J. M.: 1. The present appeal has been preferred by the revenue against the order dated 15.02.2022 of Ld. CIT(A)-27, New Delhi (hereinafter referred as Ld. First Appellate Authority) in appeal No. CIT(A), Delhi- 01/10157/2018-19 before it against the order dated 07.12.2018 passed u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred as ‘the Act’) by the Assessing Officer, ACIT/ DCIT, CC-20,/ ACIT(3(2), Delhi. 2. The assessee company field its return of income claiming loss of Rs. 6,50,25,917/- under normal provisions at an income of Rs. 49,02,948/- and under MAT provisions u/s 115JB of the Act and the case was selected for complete scrutiny. Thereafter, the ld AO had made disallowance of the interest u/s 24(b) of the Act at Rs. 5,01,33,879/- and u/s 14A read with Rule 8D of the Income Tax Rules, 1962 at Rs. 3,57,61,254/- and recalculated the total income of the assessee at Rs. 2,08,69,216/- under normal provisions of the Act at Rs. Page | 1
4,06,64,202/- u/s 115JB of the Act. The ld CIT(A) had allowed the appeal of the assessee primarily following the orders of the previous Assessment Years in assessee’s own case for AYs 2010-11 to 2014-15 and the revenue has come in appeal raising following grounds of appeal:- 1) The Ld. CIT(A) has erred in law and on facts in deleting the disallowance of interest paid to Ballarpur Industries Ltd. of Rs.5,01,33,879/- u/s 24(b) of the IT, Act 1961. 2) The Ld. C1T(A) has erred in law and on facts in deleting the addition of Rs.3,57,61,254/- made by the AO on account of disallowance u/s 14A of the IT Act, 1961 read with Rule 8D of the Income Tax Rules , 1962. 3) The Ld. CIT(A) has erred in law and on facts, in relying upon the Ld. ITAT, Delhi’s order dated 25.10.2021, in the assessee’s own case for AYs 2010-11 to 2014-15, without appreciating that the said decision of the Hon’ble ITAT has not been accepted by the Department on merits. 4) (a) The Ld. Commissioner of Income Tax (Appeals) is erroneous and not tenable in law and on facts.”
Heard and perused the record. 4. The ld DR submitted that the ld CIT(A) has fallen an error in not discussing the merits of the case and following previous years orders while principle of res judicata is not applicable. 5. On the other hand the ld AR placed on record the copy of the order in case of assessee for AYs. 2010-11 and 2014-15 in ITA No. 4360, 4361, 4362/Del/2016 and 6147,6148/Del/2017 decided vide order dated 25.10.2021. 6. Giving thoughtful consideration to the matter on record, it can be observed that in regard to ground No. 1 in assessee’s own case the Tribunal has held in para No. 7 as under:- “7. We agree with the argument of the ld. DR. We find that the ld. CIT(A) has not solely adjudicated based on the earlier assessments but has also so considered the various judgments
of Hon’ble High Court of Calcutta in the case of CIT Vs. R.P Goenka (233 ITR 128) and the judgment of Hon’ble Punjab & Haryana in the case of CIT Vs. Sunil Kumar Sharma (254 ITR 103) wherein it was held that unpaid price is to be treated as borrowed capital within the meaning of Section 24(b). Hence, on independent examination of the facts and the provisions of law, we hold that the interest paid by the assessee to BIL is an allowable deduction as it amounts to interest on the capital borrowed.” 7. In regard to disallowance made u/s 14A the Tribunal has observed in para No. 9 as follows:- 9. With regard to consideration of disallowance of expenses u/s 14A for computing the book profit u/s 115JB, we hereby hold that in accordance with the clause (f) of Explanation to Section 115JB, the disallowance under Section 14A of the Act is a notional disallowance and therefore, by taking recourse to Section 14A of the Act, the amount cannot be added back to book profit under clause (f) of Section 115JB of the Act. The AO is directed to re- compute the profits following the two directions given above.” 8. The ld DR has not able to substantiate anything to the contrary on facts or the law to not follow the reasoned findings of the Co- ordinate bench in assessee’s own case for immediately preceding five years. There is no error in the findings of the ld CIT(A). Grounds are not sustainable and the appeal of the revenue is dismissed. Order pronounced in the open court on 30/11/2022. -Sd/- -Sd/- (ANIL CHATURVEDI) (ANUBHAV SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 30/11/2022 A K Keot Copy forwarded to 1. Applicant 2. Respondent 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, New Delhi Page | 3
