ACIT, NEW DELHI vs. M/S. MORGAN SECURITIES & CREDITS PVT. LTD., NEW DELHI

The above captioned two appeals by the Revenue and cross objection by the assessee were heard together and involve identical issues. Hence these are being disposed of by this common order for the sake of brevity and convenience.

Ground Nos. 4, 5 and 6 are general in nature and need no adjudication at our end. Remaining Ground Nos. 1 to 3 read as under:

Briefly stated, the facts giving rise to this appeal are that the AO made additions as enumerated above in the grounds of appeal. Aggrieved, the assessee carried the matter before the ld. CIT(A) by filing first appeal which was allowed on all three counts. Now the Revenue is aggrieved and has come in second appeal before the Tribunal.

The ld. DR submitted that the ld. CIT(A) erred in deleting the addition made on account of cessation of liability for the loan taken from M/s Virgin Securities & Credit Pvt. Ltd as it has been claimed as bad debt by the latter in its profit and loss account. The ld. DR submitted that the action of the assessee was quite justified and correct and therefore, the impugned order may be set aside by restoring that of the AO.

Per contra, the ld. AR supporting the impugned order, contended that since the ld. CIT(A) has held that the proceedings u/s 147/148 of the Act is illegal and without jurisdiction and the same are not sustainable and accordingly assessment u/s 147/148 of the Act is quashed and the Revenue has not challenged this conclusion in this appeal. Therefore, the other grounds on merits had become infructuous an academic and should have been dismissed being infructuous. The ld. AR further contended that however the ld. CIT(A) also decided the grounds of the assessee on merits and allowed the appeal which is under challenge by the Revenue before this Tribunal in this appeal.

The ld. AR further drew our attention towards operative para pertaining to quashing of reopening of assessment and issuance of notice u/s 147/148 of the Act at page 10 of the impugned order and submitted that the Revenue has not challenged the findings of the ld. CIT(A) wherein allowing the legal ground of the assessee reopening of assessment, initiation of proceedings and notice u/s 148 of the Act has been quashed. Therefore, the Revenue cannot be allowed to agitate the other grounds on merits wherein the ld. CIT(A) also granted relief to the assessee on all three counts by allowing the appeal of the assessee not only on legal grounds but also on merits.

On careful consideration of the above rival submissions, at the very outset, from the impugned order of the ld. CIT(A) operative para at page 10 on the legal ground, we note that the ld. CIT(A) allowed the legal objection of the assessee challenging the validity of reopening of assessment and initiation of notice u/s 147/148 of the Act with the following findings :

In view of the above discussion and conclusion of the ld. CIT(A), it is amply clear that the first appellate authority has allowed the legal grounds of the assessee by quashing the reopening of assessment and issuance of notice u/s 148 of the Act, however, from a reading of the impugned order, it is also vivid that the ld. CIT(A) not only decided the legal grounds of the assessee but also allowed the appeal of the assessee on merits on all three counts. Further, the Revenue has challenged the conclusion of the ld. CIT(A) which granted relief to the assessee on merits but there is no challenge to the findings of the ld. CIT(A) wherein he allowed the legal grounds/objection of the assessee by quashing reopening of assessment and notice u/s 148 of the Act. Therefore, in the totality of the above facts and circumstances of the case, we are of the considered opinion that while the conclusion of the ld. CIT(A) on legal grounds has not been challenged by the Revenue wherein reopening of assessment and issuance of notice u/s 148 of the Act has been quashed, then the other grounds on merits become infructuous and without challenging the conclusion of the first appellate authority on the legal objection of the assessee, the grounds raised by the Revenue on merits and appeal becomes infructuous and we dismiss the same as having become infructuous without any further deliberations. Accordingly, Ground Nos. 1, 2 and 3 raised by the Revenue are dismissed as having become infructuous.

Ground Nos. 3, 4 and 5 of the Revenue are general in nature which require no adjudication. Hence the same stand dismissed. The other remaining grounds read as under: 7

The assessee has also raised the following grounds of appeal in its cross objection:

Briefly stated, the facts giving rise to this appeal and cross objection are that the case was selected for scrutiny and the AO framed assessment order at NIL income as against returned loss/negative income of Rs. 9,53,85,260/- for A.Y 2009-10 by making three additions viz. (i) disallowance u/s 14A r.w.r 8D of the I.T. Rules, 1962 (ii) disallowance of Rs. 44,944/- paid to the architect/consultant (iii) disallowance of Rs. 49,13,375/- disallowed out of legal and professional charges. It is also pertinent to note that the AO disallowed the entire claim of expenses of Rs. 9,53,85,260/- and assessed the income of the assessee for the relevant period at NIL. Aggrieved, the assessee carried the matter before the ld. CIT(A) who granted relief to the assessee on all the issues except part confirmation of disallowance u/s 14A r.w.r. 8D of the Rules. Consequently, the Revenue has filed the present appeal challenging the relief granted to the assessee and the assessee has also filed cross objection challenging the part denial of relief.

We have heard the arguments of both the sides and carefully perused the relevant material placed on record before us. The ld. DR submitted that the ld. CIT(A) was not justified in allowing the claim of business expenses to the assessee to the extent of Rs. 9,53,85,260/- and in directing the AO to delete the disallowance of Rs. 49,13,355/- being claim of legal and profession charges. The ld. DR vehemently pointed out that when no business activity was undertaken by the assessee during the relevant financial period, then how come huge claim of expenses can be held as allowable without any receipts or income. The ld. DR also contended that the AO rightly made disallowance u/s 14A r.w.r 8D of the Rules which was partly upheld but the ld. CIT(A) granted relief on the major part of disallowance. The ld. DR also contended that the assessee could not bring on record anything to establish the nature of consultancy services received by the assessee by these parties and it was not explained in which manner and how these recipients have helped the assessee in conducting his business, especially when there was no business activity rendered. Therefore, the ld. DR submitted that the order of the AO may be restored.

Replying to the above, the ld. AR supported the impugned order and submitted that the AO made disallowance without any basis and justified reasoning. He further elaborated that during the relevant financial period there was a lull in the business of the assessee. Therefore, it could not undertake any substantial business activities but for smooth running of establishment of the assessee company, claimed expenses were very much necessary and therefore, the same are allowable. The ld. AR also submitted that as per financial receipts and statements, the assessee only claimed exempt income of Rs. 1,40,640/- in the return of income then no disallowance can be made beyond this amount. Therefore, the conclusion of the AO is not sustainable, thus the same should be demolished. The ld. AR also pointed out that the payment of legal and professional charges and consultancy services was made to protect the interest of the assessee company from various litigations and cases filed against it and filed by it to secure legal rights. Therefore, the same was incurred for the purpose of the business of the assessee and therefore, it was incurred under the business expediency and the same is allowable u/s 37 of the Act.

Placing rejoinder to the above submissions of the ld. AR on behalf of the revenue, the ld. DR fairly submitted that in case of lull in the business, definitely there is necessity to make some expenses for maintenance of establishment of the company and regarding legal and professional charges for the ongoing cases and litigation by the assessee and against the assessee.

On careful consideration of above, we may point out that the AO took an extreme step by dismissing explanation of the assessee that it has to incur some expenses pertaining to maintain corporate existence of establishment of the assessee company and legal and professional charges incurred by the assessee to enforce its legal rights and to save it from litigation filed against it. It is also relevant to note that as per the proposition laid down by Hon'ble Jurisdictional High Court of Delhi in the case of Hocims India 272 CTR [Del] the disallowance cannot be more than exempt income claimed by the assessee. This proposition was also not considered by the authorities below which gave rise to the cross objection of the assessee.

At the same time, we observe that the ld. CIT(A) also went in a extremely opposed conclusion discussing the conclusion of the AO he dismissed all the additions and disallowance made by the AO without any proper verification or examination of the claim of the assessee. We may point out that during the arguments, the ld. DR agreed to the submission of the ld. AR that if it is found just and proper then the department has no serious objection in restoring the case for de novo assessment to the file of the AO. In the light of the above noted facts and circumstances of the case of the case, we are inclined to hold that the assessment was not framed as per requirement of the Act and the ld. CIT(A) also granted relief without any justified basis and reasons. He e we find it necessary to restore the case to the file of the AO for a de novo adjudication after affording due opportunity of being heard to the assessee and without being prejudicial from the earlier assessment and impugned first appellate order. Having considered the rival submissions, we are of the considered view that the issue needs to be restored to the file of the AO for a fresh adjudication and hence the Ground of appeal raised is deemed to be allowed for statistical purposes.

In the result, the appeals of the Revenue as well as the cross objection of the assessee stand allowed for statistical purposes.