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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: SHRI KUL BHARAT & SHRI MANISH BORAD
आदेश / O R D E R
PER KUL BHARAT, J.M: This appeal by the assessee is directed against order of
the CIT(A)-I, Bhopal dated 30.3.2017 pertaining to the
[ITA No.448/Ind/2017] [M.P. Tourism Development Corporation, Bhopal] assessment year 2012-13. The assessee has raised
following grounds of appeal:-
Briefly stated facts are that the assessee had filed
original income, wherein it has declared income at
Rs.1,64,05,599/-, however this return was revised on
30.3.2014 declaring income at Rs.2,16,24,804/-. The case
of the assessee was picked up for scrutiny assessment and
[ITA No.448/Ind/2017] [M.P. Tourism Development Corporation, Bhopal] the assessment u/s 143(3) of the Income Tax Act, 1961
(hereinafter called as ‘the Act’) was framed. The A.O. while
framing the assessment rejected the claim of the assessee
that expenses incurred under the head ‘Repairs and
Maintenace’ are of the revenue nature. Accordingly, he
made addition of Rs.2 crores in this respect.
Aggrieved by this, the assessee preferred an appeal
before Ld. CIT(A). Ld. CIT(A) vide impugned order partly
allowed the appeal directing the assessing officer to allow
depreciation as per law. However, aggrieved by the order,
the assessee is in appeal. Ground Nos.1 & 3 are against
confirming the disallowance of Rs.2 crores. Ld. Counsel for
the assessee vehemently argued that Ld. CIT(A) was not
justified in confirming the additions. He submitted that
the expenses are of the revenue nature.
[ITA No.448/Ind/2017] [M.P. Tourism Development Corporation, Bhopal] 4. On the contrary, Ld. D.R. supported the order of the
Ld. CIT(A) stating that the issue is covered by the decision
of the Tribunal in earlier assessment years.
We have heard the rival submissions, perused the
materials available on records and gone through the orders
of the authorities below. Ld. CIT(A) in para Nos.5, 6 & 7 of
his order has decided the issue by observing as under:
[ITA No.448/Ind/2017] [M.P. Tourism Development Corporation, Bhopal]
[ITA No.448/Ind/2017] [M.P. Tourism Development Corporation, Bhopal]
We find that in the case of the assessee this Tribunal
in ITA Nos.685/Ind/2016 dated 28.2.2017 has decided the
issue by observing as under:
Replying to the above, the learned CIT DR strongly supported the order of the Assessing Officer which was confirmed by the learned CIT(A) by passing the impugned order. However, he could not controvert this factual situation that by the order dated 8.9.2016 of ITAT, Indore Bench, for the assessment year 2009-10, the issue has been restored to the file of the Assessing Officer with the following directions :-
[ITA No.448/Ind/2017] [M.P. Tourism Development Corporation, Bhopal]
“14. The first ground taken by the assessee is that the learned CIT(A) was not justified in confirming the action of the Assessing Officer that the sum of Rs.1,31,81,008/- out of total expenditure of Rs.2,36,51,306/- claimed on account of building repairs, other repairs & garden maintenance are of capital nature and disallowable. 15. The Assessing Officer noticed that the assessee company had claimed expenses on buildings repair and maintenance amounting to Rs.1,67,33,389/-.The Assessing Officer noted that the assessee had included expenses of capital nature in the repairs and maintenance expenses. these expenses. However, the Assessing Officer made the addition. On appeal, the learned CIT(A) following the decision of the CIT(A) for the assessment year 2007-08 the Assessing Officer disallowed 48.12% of the expenditure treating the same as capital in nature and added back the same to the total income of the assessee. On appeal, the learned CIT(A) considering the fact that the CIT(A) and the Tribunal had confirmed similar disallowance in the earlier years, confirmed the disallowance made by the Assessing Officer. Now the assessee is before us. 16. We have heard both the sides. We find that the Tribunal has confirmed the similar disallowance in the earlier years in the case of the assessee itself. We, therefore, find no flaw in the order of the learned CIT(A) and confirm the same. This ground is, therefore, rejected. 17. The next ground relates to confirmation of depreciation by the learned CIT(A) on Rs.1,13,81,008/- in case the said amount is treated as an expenditure 18. We have heard both the sides. We find that when the learned CIT(A) is justified in treating the expenditure of Rs.2,36,51,306/- as building repairs, other repairs and garden maintenance as capital in nature, therefore, the assessee is entitled to depreciation as per law. We, therefore, set aside the orders of the authorities below and restore this issue to the file of the Assessing Officer to decide the same as per law after giving the assessee an opportunity of being heard.”
In view of the above, we are of the view that that learned CIT DR could not controvert the factual situation that the impugned disallowance of building repairs, garden and others has been restricted to 48.12% of the total expenditure for the assessment year 2007-08, 2009-10 and 2010-11 and for the assessment year 2009-10 the cross objection of the assessee challenging the part disallowance of 48.12% has been rejected by the Tribunal and the issue has been restored to the file of the Assessing Officer for the limited purpose, by observing that the assessee is entitled to depreciation on the amount of part disallowance as per the provisions of the Act and thus the issue has been
[ITA No.448/Ind/2017] [M.P. Tourism Development Corporation, Bhopal] restored to the file of the Assessing Officer to decide the same afresh after affording due opportunity of hearing to the assessee. Respectfully following the order of the coordinate Bench of the Tribunal dated 8.9.2016 (supra) in the assessee’s own case for the assessment year 2009-10, the issue is restored to the file of the Assessing Officer for the limited purpose with the direction that the assessee is entitled to depreciation as per law on the amount of disallowance and the Assessing Officer is directed to calculate and allow the same as per the facts, circumstances and provisions of the Act. 8. In the result, the appeal of the assessee is partly disallowed by upholding the disallowance of 48.12% of total impugned expenditure and partly allowed for statistical purposes on the issue of allowability of depreciation on the amount of disallowance.
There is no change in the facts and circumstances in
the present case. The Ld. CIT(A) has followed the decision
of the Tribunal. Therefore, we do not see any infirmity in
the order of the Ld. CIT(A) and the same is hereby affirmed.
Ground Nos.1 & 3 of the assessee are dismissed.
Ground No.2 is in respect of charging of interest u/s
234B of the Act. This being consequential, no argument
was addressed. We therefore, dismiss the same.
Ground No.4 is general in nature and needs no
separate adjudication.
[ITA No.448/Ind/2017] [M.P. Tourism Development Corporation, Bhopal] 10. In the result, the appeal filed by the assessee is
dismissed.
Order was pronounced in the open court on 06.12.2018.
Sd/- Sd/-
(MANISH BORAD) (KUL BHARAT) ACCOUNTANT MEMBER JUDICIALMEMBER
Indore; �दनांक Dated : 06/12/2018 VG/SPS
Copy to: Assessee/AO/Pr. CIT/ CIT (A)/ITAT (DR)/Guard file. By order
Assistant Registrar, Indore