EH BUILDING CONSULTANCY PVT LTD,CHENNAI vs. DCIT CORP CIR 2(2), CHENNAI

आदेश आदेश /O R D E R आदेश आदेश

PER GIRISH AGRAWAL, ACCOUNTANT MEMBER:

This appeal by the Assessee is arising out of the order of

Commissioner of Income-tax (Appeals) -6, Chennai in ITA No.

10/CIT(A)-6/2015-16 dated 07.04.2017 against the order of DCIT-

Corporate Circle-2(2), Chennai passed u/s. 143(3) r.w.s. 147 of the

Income-tax Act, 1961 (herein after referred to as “the Act”) dated

18.02.2015.

2 EH Building Consultancy Private Ltd ITA No. 578/Chny/2019 AY: 2009-10 2. The grounds taken in this appeal are 15 in numbers which

essentially relates to (i) grounds challenging the validity of

reassessment proceedings u/s. 147 (ii) grounds relating to denial of

deduction u/s. 10A of the Act (iii) grounds relating to addition on

account of increase in share capital of Rs. 2,40,000/-.

as many as 16 times, notice have been sent on several occasions

which have returned un-served and are placed in the appeal folder.

Further, we note that there is no communication either from the

assessee or from the Counsel of the assessee in respect of change of

address for communication. Even today before us, none appeared

representing the assessee. Further, we note that this appeal is barred

by limitation as there is a delay of 638 days in filing the appeal. In

respect of delay in filing of this appeal, we find that a petition for

condonation of delay along with affidavit is placed on record. Order of

Ld CIT(A) dated 07.04.2017, which was received by the assessee on

the same date. This appeal ought to have been filed on or before

06.06.2017 which has been filed on 06.03.2019. The main reason

given in the petition for condonation of delay is on account of medical

ailment of the director of the assessee company. It is suffice to say that

whenever the reasons are assigned by an applicant for explaining the delay,

3 EH Building Consultancy Private Ltd ITA No. 578/Chny/2019 AY: 2009-10

then, such reasons are to be construed with a justice oriented approach.

Therefore, for the just decision of the controversy, we find it appropriate to condone the delay, and thus, admit it for adjudication.

delay of 638 days based on the petition and affidavit placed on record

and listing the matter for as many as 16 times and by sending the

notices on multiple occasions, which have returned un-served and

none appearing on behalf of the assessee, demonstrate that the

assessee is not serious in taking up the appeal for its judicial disposal.

However, since the matter is of 2019 and several opportunities have

been given to the assessee, we are inclined to decide the matter ex-

parte, qua, the assessee by taking assistance from the Ld. Sr. DR.

of the issue which is before us have been elaborately dealt by Ld.

CIT(A). On the first issue of validity of reassessment proceedings u/s.

147 of the Act, the findings given vide para 4.3 is reproduced as

under:

“ The matter is considered. I am unable to accede the grounds of appeal, as ‘change of opinion’ would come to the rescue of the appellant if the impugned issued has been examined by the Assessing Officer in the original proceedings, relevant documentary evidence have been scrutinized and a view has been taken, either positive or negative and discussed in the original assessment order. In the appellant's case it cannot be said that a view has been taken in the original proceedings just because the deduction as claimed was accepted. The appellant company has produced no evidence before me to demonstrate that the impugned issue was

4 EH Building Consultancy Private Ltd ITA No. 578/Chny/2019 AY: 2009-10

scrutinized and deliberated in the original proceedings. Hence, I am of the opinion that the ratio of Hon'ble Supreme Court's decision in CIT vs Kelvinator of India Limited case do not apply to the facts and circumstances of the appellant's case. Ir therefore, hold the reassessment proceedings to be valid, and the grounds challenging the validity of reassessment proceedings stand dismissed.”

5.1 We do not find any reason to interfere with the findings given by

the ld. CIT(A) on this issue. Accordingly, grounds taken by the

assessee relating to validity of re-assessment proceedings u/s. 147 of

the Act are dismissed.

the assessee, the Ld. CIT(A) has captured the factual development on

the issue and given his findings which are reproduced from pare 5.3 of

the impugned order:

“5.3 The matter is considered. The factual developments on thee issue ar~ recapped as under: a) The appellant claimed deduction under Section 10A of the Act in its return of income. b) In the reassessment proceedings, the AO questioned the allowability under Section 10A of the Act on the following two grounds: (a) The date of commencement of the business; and (b) Inconip1ete Form 56G. c) The appellant thereafter made an alternative claim under Section 10B of the Act. d) The Assessing Officer, for reasons mentioned in the order denied the claim under Section 10A of the Act, as well as alternative claim under Section 10B of the Act. Deduction under Section 10A is available to the newly established undertakings in the Free Trade Zone. The AO has not disputed that the appellant has set up an undertaking at Chennai, and the approval dated 19.12.2008 from STPJ has been furnished for the record. However, the appellant has submitted incomplete Form 56G. Critically, the significant column related to the information 'whether the full consideration in convertible foreign exchange for exports made by the

5 EH Building Consultancy Private Ltd ITA No. 578/Chny/2019 AY: 2009-10

undertaking was brought into India within period of six months from the end of the Previous year' has been left blank, Further, for the alternate claim of deduction under Section 10B, the certificate from the Competent Authority, as notified by CBDT is mandatory for the grant of deduction. Reliance is placed on the decision of Hon'ble Delhi High Court in the case of CIT vs Regency Creations Limited reported in [2013] 353 ITR 326 (Delhi). As the appellant has not produced any such approval, the AO cannot be faulted in denying the alternate claim. In view of the facts and circumstances discussed above, I do not find any reason to interfere with the findings of the AO. The grounds relating to the denial of claim under Section 10A/10B stands dismissed.”

6.1 On perusal of the observations and findings of the Ld. CIT(A),

supra, we do not find any reason to interfere with the same and

dismiss the grounds taken by the assessee in respect of claim of

deduction u/s. 10A of the Act.

Rs. 2,40,000/- for increase in authorized capital of the assessee

company, the observations and findings by Ld. CIT(A) from para 6 of

the impugned order is reproduced as under:

“6. Disallowance of ROC Filing Fees: 6.1 In the assessment order, the Assessing Officer has disallowed a sum of Rs. 2,40,000/- on account of it being a capital expenditure in the form of ROC filing fees. It is also mentioned in the impugned order, that the Authorized Representative accepted the findings of the AO. 6.2 In this appeal, the ground has been taken that the impugned expenditure is not capita] in nature, and that there was no increase- in Authorized Capital during FY 2008-09, A copy of the printed Annual Accounts for FY 2008-09 has been filed in support. 6.3 I am unable to accede to the grounds of appeal for the following reasons: a) It was incumbent on the appellant company to indicate the exact nature of expenditure, if it is not filing fees as contended. b) The finding of the AO with regard to the impugned amount being capital in nature was accepted by the Authorized Representative during the assessment proceedings.

6 EH Building Consultancy Private Ltd ITA No. 578/Chny/2019 AY: 2009-10 In the absence of clarity from the appellant on the exact nature of expenditure, I am inclined to sustain the disallowance made by AO that was accepted by appellant’s Authorized Representative. These grounds are therefore dismissed.”

7.1 Considering the above observations and findings, we are not

inclined to interfere with the above and dismiss the grounds taken by

the assessee on this issue of disallowance of ROC filing fees.

Accordingly, the appeal of the assessee is dismissed.

Sd/- Sd/- (िगरीश अ�वाल) (महावीर �सह ) (GIRISH AGRAWAL) (MAHAVIR SINGH) लेखा सद!य /ACCOUNTANT MEMBER उपा�य� /VICE PRESIDENT

चे#ई/Chennai, %दनांक/Dated, the 24th May, 2022 JPV JPV JPV JPV आदेश क� �ितिलिप अ�ेिषत/Copy to: 1. अपीलाथ�/Appellant 2. ��यथ�/Respondent 3. आयकर आयु� (अपील)/CIT(A) 4. आयकर आयु� /CIT 5. िवभागीय �ितिनिध/DR 6. गाड� फाईल/GF.