CIT vs. AMWAY INDIA ENTERPRISES PVT LTD

IN THE HIGH COURT OF DELHI AT NEW DELHI . . . ITA 346/2012 . . . CIT ..... Appellant . Through : Mr. Sanjeev Rajpal, Advocate. . . . versus . . . AMWAY INDIA ENTERPRISES PVT LTD ..... Respondent . Through : Mr. Mayank Nagi, Advocate. . . . CORAM: . HON'BLE MR. JUSTICE SANJIV KHANNA . HON'BLE MR. JUSTICE R.V.EASWAR . . . O R D E R . 18.05.2012 . . . 1. Two issues have been raised by the Revenue in this appeal which pertains to the assessment year 2006-07. . 2. The first issue relates to the expenditure no renovation/fixtures and fittings including partitions put up in the rented premises. Learned counsel for the Revenue has relied on the decision dated 25th November, 2011 in ITA No. 1118/2011 in CandC Constructions Private Limited v. CIT. The said decision is clearly distinguishable. The assessee had lost before the Income Tax Appellate Tribunal (tribunal). The findings of fact recorded was that the assessee had constructed sheds and had claimed that after completion of the project these were to be handed over to the contractee. Accordingly, they had claimed 100% depreciation. Before us, the assessee had urged a new ground . ITA 346/2012 page 1 of 3 . for the first time that the construction cost of sheds was not capital expenditure but revenue expenditure. This plea was not allowed to be raised as it was not urged and raised before the authorities/tribunal. . 4. Learned counsel for the respondent/assessee, who is present on advance notice, has drawn our attention to the decision dated 4.11.2011 in ITA Nos. 1344/2009 an 1636/2009 in the assessee?s own case. These appeals were in respect of assessment years 2001-02 and 2003-03, respectively. A Division Bench of this High Court after referring to, CIT v. Hi Line Pens Private Limited [2008] 306 ITR 0182 and ITA No. 621/2005 titled as CIT v. Escorts Finance Limited decided on 15th May, 2006, and some other judgments came to the conclusion that the expenditure incurred on renovations in the rented premises was revenue expenditure and not capital expenditure. The nature and type of expenditure incurred in the present case is the same. In view of the said decision, we do not see any reason to interfere with the order of the tribunal on this aspect. . 5. The second aspect raised by the Revenue relates to the disallowance under Section 14A of the Income Tax Act, 1961 (?the Act?). The Assessing Officer had applied Rule 8D of the Income Tax Rules, 1962 (?Rules? for short). In Maxopp Investment Limited v. Commissioner of Income Tax [2012] 247 CTR (Delhi) 162, it has . ITA 346/2012 page 2 of 3 . been held that Rule 8D of the Rules is not retrospective but only prospective and will apply only from the assessment year 2008-09. However, it has also been held that both direct and indirect expenses incurred for earning exempt income can be disallowed. . 6. Learned counsel for the respondent/assessee states that he has no objection, in case, the Assessing Officer applies the ratio of Maxopp Investment (supra). It is noticed that the tribunal had already passed an order of remand. The consent of learned counsel for the respondent is taken on record. The Assessing Officer will apply the decision of this Court in Maxopp Investment (supra) and accordingly examine and pass an order. The assessee will be given an opportunity of hearing before any decision/order is passed. . 7. The appeal is disposed of with the aforesaid directions. No costs. . . . SANJIV KHANNA, J. . . . . . R.V.EASWAR, J. . MAY 18, 2012 . AK . . . . . . . . . ITA 346/2012 page 3 of 3 . $ 25 .