M/S. DLF INFOCITY DEVELOPERS (CHANDIGARH) LTD.,GURGAON vs. DCIT, GURGAON

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “B” NEW DELHI BEFORE SHRI S.V. MEHROTRA : ACCOUNTANT MEMBER AND Ms. SUCHITRA KAMBLE : JUDICIAL MEMBER Asstt. Yr: 2010-11 DLF Infocity Developers Vs. DCIT, Circle 1(1), (Chandigarh) Ltd., Gurgaon. 3rd Floor, Shopping Mall Complex, Arjun Marg, DLF City, Phase-I, Gurgaon. PAN: AABCD 9114 E ( Appellant ) (Respondent) Appellant by : Shri R.S. Singhvi, CA Respondent by : Shri Amrit Lal Sr. DR . Date of hearing : 10/12/2015. Date of order : 02/02/2016. O R D E R PER S.V. MEHROTRA, A.M:

This is assessee’s appeal against the order dated 9.2.2015 passed by the ld. CIT(A)-1, Gurgaon in appeal no. 256/12-13, relating to A.Y. 2010- 11.

“1. That on the facts and in the circumstances of the case, the impugned order passed by the learned CIT (Appeals) is bad in law and wrong on facts.

3. That the appellant craves leave to add, alter, amend, substitute. withdraw and/or vary any grounds of appeal at or before the time of hearing.

3. In course of assessment proceedings the AO noticed that assessee owned a building complex at Chandigarh. Part of the complex housed an IT park, income from which had been shown as business income and another part had been let out to retail merchants, income from which was declared as income from house property. The AO held that expenses attributable to retail part were not allowable as business income, as letting out of retail part was not part of business of the assessee and deduction u/s 24(a) had already been claimed on those receipts. He, therefore, required the assessee to establish that no expenses attributable to the retail division were claimed as deductible. After considering the assessee’s submissions the AO observed that no explanation was offered regarding statutory audit fee, tax audit fee, misc. expenses and rates and taxes debited to P&L account, which were common to I.T. Division and retail division. He computed the expenses attributable to retail division on the basis of ratio of area of retail division to the total area of the building complex and, accordingly, made a disallowance of Rs. 2,50,243/- being 22% of Rs. 11,36,981/-, the expenses incurred in respect of various items noted above.

4. Ld. CIT(A) dismissed the assessee’s appeal on various counts.

5. We have considered the submissions of both the parties and have perused the record of the case. Ld. counsel for the assessee submitted that audit fee is to be allowed being statutory obligation of company. For other two items viz. misc. expenses and rates & taxes, ld. counsel submitted that they did not pertain to retail division and hence could not be disallowed.

6. We are in agreement with ld. counsel that, in any view of the matter, audit fee paid by assessee company has to be allowed because that is for the existence of company. However, rates and taxes and misc. expenses cannot be allowed if they pertain to retail division. The AO has allocated the expenses on the basis of ratio of area of retail division to the total area of the building complex. If rates and taxes specifically pertained only to the area housing IT park, then no part of the same can be disallowed. However, if the rates and taxes are for the entire building then AO’s method of allocation is proper. We, therefore, restore this matter to the file of AO to record a specific finding whether any part of rates and taxes pertained to retail division or not and then compute the disallowance accordingly in terms of our observations made earlier. Similarly, AO shall also examine, whether any part of the misc. expenses pertained to the retail division or not because in this regard AO has observed that no explanation was offered by assessee.