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Income Tax Appellate Tribunal, DELHI BENCH: H’ NEW DELHI
Before: SH. H.S. SIDHU & SH. O.P. KANT
ORDER PER O.P. KANT, A.M.: This appeal of the assessee is directed against the order dated 5th August, 2011 of the Ld. Commissioner of Income-tax( Appeals)-XIX, New Delhi for assessment year 2008-09 raising following grounds of appeal:
1. That the addition of Rs. 13,45,940/- has wrongly been sustained.
2. That the appellant had claimed the expenses which were mandatory for very existence of the company. The claim should have been considered and allowed in full.
3. That the losses of the past both business and depreciation etc duly assessed and determined merits to be adjusted against the taxable income computed. That the Ld. CIT(A) has omitted to consider the mistakes in the taxable income computed.
4. That the assessment as framed being bad in law and facts merits to be set aside. 2. The facts in brief are that the assessee filed return of income declaring income of Rs. 21,23,090/-on 29/09/2008. The income declared was comprised of rental income, interest income and excess provision written back . The case was taken up for scrutiny and notice under section 143(2) of the Income-tax Act,1961( in short the ‘Act’) was issued and served within the stipulated period. In the course of scrutiny proceedings, the Assessing Officer observed that no receipt under the head profit and gains from the business was shown by the assessee whereas deduction for expenses was claimed under the head. The Assessing Officer further noted from the profit and loss account that the assessee did not carry out any business or professional activity in the current financial year as well as in the preceding year and income in both the years was comprising of rental income, interest income and excess provision written back. In response to the query of the Assessing Officer as to why the loss claimed under the head profit and gains of business may not be disallowed, the assessee submitted that the assessee company had been doing business and earned huge commission from the services provided to the foreign party in past years. The assessee company filed copies of the relevant assessment order when the receipt of the commission was taxed. However, the Assessing Officer did not accept the contention of the assessee and made disallowance of Rs. 12,51,610/-. The Assessing Officer also disallowed the depreciation of Rs. 94,330/-on building on the ground that same was not used for the purpose of business. Aggrieved with the finding of the Assessing Officer, the assessee filed appeal before the Ld. Commissioner of Income-tax( Appeals), however could not succeed on the issue of disallowance of the expenses and the depreciation. In respect of allowance of past determined losses against the income computed, the Ld. CIT(Appeal) directed the Assessing Officer to verify the record and allow the brought forward losses in accordance with the provisions of the Act. Aggrieved, the assessee is in appeal before the Tribunal.
3. In ground No. 1, the assessee has challenged both the disallowances i.e. the disallowance of expenditure of Rs. 12, 51, 610/-and disallowance of depreciation of Rs. 94,330/-. In ground No. 2 the assessee has challenged the disallowance of expenses of Rs. 12, 51, 610/-.
4. Before us, the Ld. Authorised Representative of the assessee filed a paper book containing pages from 1 to 47 and submitted that the assessee was engaged in providing services to foreign parties on commission basis for last many years and in the assessment year 2002-03, 2003-04 and 2012-13, 2014-15 has shown receipt from professional fees, though in the year under consideration there were no receipt from professional fees, but the assessee was required to maintain all the infrastructure for providing professional services to foreign parties. The Ld. Authorised Representative, further submitted that in assessment year 2002-03, the assessment was completed under section 143 (3) of the Act i.e. the scrutiny assessment and all the expenses under the head profit and gains of business were duly allowed by the Assessing Officer. In subsequent assessment years i.e. 2012-13 and 2014-15 also such expenses have not been disallowed and therefore in view of the principle of consistency, also such expenses in the year under consideration were also allowable. In support of the proposition of consistency principle, the assessee relied on the judgement of the jurisdictional High Court in the case of Commissioner of Income-tax versus Dalmia Promoters Developers Private Limited reported in (2006) 281 ITR 346 (Del). The Ld. Authorised Representative in support of proposition of the assessee that the expenditure is allowable even if there is no income in the particular year, relied on the judgement of the Hon’ble Supreme Court in the case of Commissioner of Income-tax versus Rajendra Prasad Moody reported in 115 ITR 519 (SC). On the other hand, the Ld. Senior Departmental Representative, relying on the order of the lower authorities submitted that no business or professional receipts were shown by the assessee during the year and as such no deduction for expenses towards business or profession was allowable to the assessee.
We have heard the rival submissions and perused the material on record. It is a fact that the assessee has not shown any receipt from business or profession during the year but claimed expenses in the nature of Establishment Expenses, Administrative and General Expenses, Financial Charges and the Depreciation under the head profit and gains of the Business or profession. Before us, the assessee has submitted detail of expenses of similar nature incurred from assessment year 2002-03 to 2014-15. The expenses of similar nature have been allowed to the assessee in earlier and subsequent years and the claim of the assessee has even been allowed in the scrutiny assessment completed in 4 assessment year 2002-03. Thus, we are of the considered opinion that the principle of consistency requires that the assessee should have been allowed the similar expenses claimed under the head profit and gains from business or profession in the year under consideration also. The jurisdictional High Court in the case of CIT versus Dalmia Promoters Developers Private Limited (supra) has held that where there are no material change in facts in subsequent year, view taken for earlier years would continue on principle of consistency. The relevant finding of the Hon’ble High Court is as under:
7. The question in the above backdrop is whether the Tribunal was justified in upholding the order passed by the CIT(A) on the principles of consistency. In Radhasoami Satsang’s case (supra), the apex Court declared that although the principles of res judicata do not apply to IT proceedings, each assessment year being a unit by itself, yet in cases, where a fundamental aspect permeating through different assessment years has been found as a fact one way or the other and parties have allowed that position to be sustained by not challenging the order, it may not be appropriate to allow that position to be changed in a subsequent year. Their Lordships extracted with approval the following passage from Hoystead vs. Commr. of Taxation (1926) AC 155 (PC) :
Parties are not permitted to begin fresh litigations because of the view they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the Court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted, and there is abundant authority reiterating that principle."
8. The Court reiterated the following observation made by it in Parashuram Pottery Works Co. Ltd. vs. ITO. 1977 CTR (SC) 32 : (1977) 106 ITR 1 (SC) : 5
At the same time, we have to bear in mind that the policy of law is that there must be a point of finality in all legal proceedings, that stale issues should not be reactivated beyond a particular stage and that lapse of time must induce repose in and set at rest judicial and quasi- judicial controversies as it must in other spheres of human activity.
Following the above decisions, this Court has in A.R.J. Security Printers’ case (supra) and CIT vs. Neo Poly Pack (P) Ltd. (2000) 245 ITR 492 (Del), held that even when the doctrine of res judicata does not apply to income-tax proceedings, where an issue has been decided consistently in a particular manner for earlier assessment years, the same view should prevail even during the subsequent years unless there is a material change in the facts. The law is, therefore, fairly well settled. For rejecting the view taken for the earlier assessment years, there must be a material change in the fact situation. There is no gainsaying that the previous view will have no application even in cases where the law itself has undergone a change but before an earlier view can be upset or digressed from, one of the two must be demonstrated namely a change in the fact situation or a material change in law whether enacted or declared by the Supreme Court. The CIT(A) and the Tribunal have in the instant case correctly held that there was no change in the fact situation. The income earned on fixed deposits for the previous three assessment years was, in the context of the very same facts and circumstances as are relevant for the year under consideration, treated as business income of the assessee. In the absence of a change in facts or any Addl. input there was no compelling reason for taking a different view. The CIT(A) and the Tribunal were, therefore, justified in holding that the view taken for the earlier assessment years continued to be applicable even for the year under consideration.”
Further, from the details filed for the earlier and subsequent years, we find that the assessee was engaged in professional activity and maintained infrastructure in the form of office space and also incurred travelling expenses. It is quite possible that the assessee may not have been able to bring business or professional receipt during the year, 6 however, he was required to maintain the office setup and other infrastructure to remain in the profession. The fact that assessee was engaged in the profession is evident from the details filed for subsequent years as the assessee has shown receipt from professional activity in assessment year 2012-13 and 2014-15. In the case of CIT versus Rajendra Prasad Moody (supra), while deciding the issue for deduction for expenses under the head income from other sources, the Hon’ble court has held that what section 57(iii) requires is that the expenditure must be laid out or expended wholly and exclusively for the purpose of making or earning income and the section does not require that this purpose must be fulfilled in order to qualify the expenditure for deduction and it does not say that the expenditure shall be deductible only if any income is made or earned. The same principle applies for allowability of deduction of expenditure under the head profit and gains of business. Thus in our considered view the expenses of Rs. 12,51,610/- debited by the assessee in the profit and loss account and claimed under the head profit and gains of the business are allowable both on the principle up consistency as well as business expediency. Accordingly the findings of the Ld. Commissioner of Income- tax( Appeals) on the issue in dispute are reversed.
The Assessing Officer has also disallowed the depreciation of Rs. 94,330/-on building on the ground that the building was let out and the rental income from the same was claimed under the head income from house property and thus necessary deduction has already been allowed under that head. Before the Assessing Officer, the assessee submitted that depreciation was claimed on the building which was for the personal use of the assessee, notwithstanding the fact that the substantial portion of the 7 building was rented out and the standard deduction under section 24 was claimed and therefore the depreciation claimed in the circumstances merits to be suitably adjusted vis-a-vis the claim preferred. However the Assessing Officer disallowed the entire depreciation of Rs. 94,330/-. The Ld. Commissioner of Income-tax( Appeals) have noted in his order that there was no serious objections from the assessee for the proposed action of the Assessing Officer and even no arguments were made before him in appellate proceedings. The disallowance of depreciation was accordingly confirmed by the Ld. Commissioner of Income-tax( Appeals). However before us, the Ld. Authorised Representative disputed the findings recorded by the Ld. Commissioner of Income-tax( Appeals) that the assessee has not objected in respect of the disallowance before either the AO or the CIT (A). Without going into the dispute as whether the assessee objected or not, it is clear that part of the building was let out and therefore the depreciation corresponding to that part cannot be allowed to the assessee. In subsection (2) of section 38 of the Act, it is clearly laid down that where any building is not exclusively used for the purpose of business or profession the deductions under clause (ii) of subsection (1) of section 32 shall be restricted to fair proportionate part thereof which the Assessing Officer may determine having regard to the use of such building for the purpose of business or profession. Thus in view of the clear provisions of the Act in this regard, we restore the issue to the file of the Assessing Officer and direct the Assessing officer to allow the depreciation in accordance with the provisions of section 38(2) of the Act. Accordingly the ground No 1 is allowed partly for statistical purpose and ground No. 2 of the appeal is allowed.
In ground No. 3 the assessee has agitated that the losses of the past both business and depreciation duly assessed and determined merits to be adjusted against the taxable income computed. We find that the Ld. Commissioner of Income-tax( Appeals) has already directed the Assessing Officer to verify the record and allow the brought forward losses in accordance with the provisions of the Act. Therefore in our view, the ground of appeal
does not require any adjudication and dismissed as infructuous.
9. In the result, the appeal of the assessee is partly allowed. (Order Pronounced in the Court on 30/03/2016).