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Income Tax Appellate Tribunal, DELHI BENCHES : “C” NEW DELHI
Before: SHRI J.SUDHAKAR REDDY, AM & SHRI C.M.GARG, J.M.
PER J.SUDHAKAR REDDY, ACCOUNTANT MEMBER
This is an appeal filed by the assessee directed against the order of the Ld. Commissioner of Income Tax (Appeals)- XVII, New Delhi dated 04.02.2014 pertaining to the Assessment year (A.Y.) 2007-08.
Facts in brief:- The assessee is a partnership firm carrying on the business in the name and style of Hotel The ITAT 2545/Del/2014 A.Y. 2007-08 Hotel The Ascent, New Delhi Ascent, at Barrotiwala Road, Baddi, Tehsil Nalagarh, Distt. Solan (H.P.). The assessee claims that it is has commenced business activities on 31.7.2007 and the same was registered with the Department of Tourism. The assessee firm has claimed that it is located in a notified area of the Board and hence is eligible for deduction under Section 80 IC of the Income Tax Act, 1961 (the Act). The Assessing Officer (A.O.) rejected the claim of the assessee. Aggrieved the assesseee carried the matter in appeal before the First Appellate Authority who had upheld the order of the A.O. by observing as under. “5.8. The appellant has stated certificate from Pollution Department is not required if rooms are less than 25. However, I do not find any such letter from the Pollution Dept. on record. 5.9. In my view, the hotel must have a valid license on the basis of No Objection from the Pollution Department to qualify as an eco tourism Hotel. The appellant has not given any such Certificate on record. In view therefore, the appellant will not be eligible for deduction u/s 80 IC. 5.10. Since there is no certificate from the Pollution Dept. the deduction u/s 80 IC will not be allowed. The disallowance of Rs.8,12,002/- is confirmed. The grounds of appeal are ruled against the appellant.”
3. Aggrieved with this order, the assessee is in appeal before us on the following grounds.
ITAT 2545/Del/2014 A.Y. 2007-08 Hotel The Ascent, New Delhi “1. That under the facts and circumstances of the case the order passed by the Learned CIT(A) is bad in law.
2. That under the facts and circumstances of the case the Learned CIT(A) has erred in confirming the order of the Learned Assessing Officer in rejecting the claim of the assessee u/s 80lC of the Income Tax Act, 1961.
That under the facts and circumstances of the case the Learned CIT(A) has erred in holding that assessee is not eligible for deduction u/s 80lC of the Income Tax Act, 1961 of Rs. 18,13,809/- (wrongly stated at Rs. 8,12,002/- in the appellate order).
4. That under the facts and circumstances of the case the Learned C1T(A) has erred in holding that in the absence of no objection certificate from the pollution department the assessee was not eligible for deduction u/s 80lC of the Income Tax Act, 1961 ignoring the letter of Himachal Pradesh Pollution Control Board dated 4.6.10 issued to the appellant which was also submitted to the AO and Learned CIT(A).
5. That under the facts and circumstances of the case and without prejudice to the above grounds the Learned CIT(A) has erred in not considering additional ground relating to the alternative claim u/s 80lA as Hotel in Baddi being backward area has been given the status of industry and eligible for all the benefits like other Industry in that area as per notification No 1(10)/2001-NER dated 7.1.2003 of Ministry of Commerce. The ACIT, Circle 25(1), New Delhi also offered no comments in this regard in his remand report dated 16.12.2013 though he
ITAT 2545/Del/2014 A.Y. 2007-08 Hotel The Ascent, New Delhi had been asked to offer his comments as per the order of predecessor CIT(A). 6. The assessee craves your indulgence to add amend or alter all or any grounds of appeal before or at the time of hearing.”
The Ld.Counsel for the assessee submitted that factual inaccuracy has crept into the order of the Ld.CIT(A), as a certificate from the Pollution Department was obtained and filed before the authorities. A copy of this certificate was placed at page 6 of the assessment order. The assessee further claimed that the issue is covered by the decision of the Chandigarh Bench of The Tribunal in ACIT vs. Raghunath Singh Thakur (2012) 33 CCH 0306, Chandigarh ITAT, specifically relied on para 25 and 26 of this order. He submitted that the Ld.CIT(A) has not disputed any other facts in this case.
The ld.D.R. on the other hand submitted that the AO is of the view that the assessee was not carrying out Eco- tourism activities specified in the policy of Himachal Pradesh and also that the assessee has not produced the Pollution Control Certificate. He relied on the order of the A.O.
After hearing rival contentions I find that the Ld.CIT(A) has at para 5.8 based his decision on the facts that the No Objection from the Pollution Department was not placed before him.
ITAT 2545/Del/2014 A.Y. 2007-08 Hotel The Ascent, New Delhi
Before us the assesseee produced a copy of Certificate of Pollution Control Board dated 4.6.2010 which is at page 6 of the paper book and claims that this document has been produced before the ld.CIT(A). On this factual matrix we deem it fit and proper to set aside the issue to the file of the First Appellate Authority for considering the Certificate and dispose of the case in accordance with law.
In the result, the appeal by the assessee is treated as allowed for statistical purposes. Order pronounced in the Open Court on 05th January, 2017.
Sd/- Sd/- (C.M. GARG) (J.SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBER
Dated: the 05th January, 2017. *manga ITAT 2545/Del/2014 A.Y. 2007-08 Hotel The Ascent, New Delhi