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2010 (1) TMI 755 - AT - Income TaxApplicability or otherwise of s. 263 - Advertisement expenses incurred by the appellant are attributable to contract activity - CIT invoked s. 263 for the reason that business of the assessee did not commence and, therefore, the expenses claimed by the assessee with regard to advertisement and publicity could not be claimed in the year under consideration - Held that - it is only in the case of lack of enquiry that such a course of action would be open and while holding so their Lordships have considered the earlier decision of Hon ble Delhi High Court in the case of Gee Vee Enterprises (1974 -TMI - 39778 - DELHI High Court). - Thus, applying the ratio laid down by the Hon ble High Court in the case of CIT vs. Sunbeam Auto Ltd. (2009 -TMI - 204642 - Delhi High Court), the order of CIT under s. 263 cannot be held valid as present case is not a case of lack of enquiry , order passed by CIT under s. 263 is quashed, appeal allowed.
Issues Involved:
1. Invocation of Section 263 of the Income Tax Act, 1961. 2. Allowability of advertisement expenses as revenue expenditure. 3. Squaring up of advances and loans. Issue-wise Detailed Analysis: 1. Invocation of Section 263 of the Income Tax Act, 1961: The appeal was filed by the assessee against the order passed by the Commissioner of Income Tax (CIT) under Section 263 of the Income Tax Act, 1961. The CIT invoked Section 263 on the grounds that the assessment order passed by the Assessing Officer (AO) was erroneous and prejudicial to the interest of Revenue. The CIT contended that the AO did not properly examine the issues related to advertisement expenses and the squaring up of advances and loans. 2. Allowability of Advertisement Expenses as Revenue Expenditure: The CIT argued that the advertisement expenses incurred by the assessee were attributable to contract activity and should be allocated to the contract, not allowed as revenue expenditure. The CIT believed that these expenses were incurred before the commencement of the business and thus could not be allowed as revenue expenditure. The assessee countered this by stating that the business of real estate development had commenced with the acquisition of land, and hence, the advertisement expenses were legitimate revenue expenditures. The assessee cited various judicial decisions to support the claim that in real estate business, the business is considered to have commenced with the acquisition of land. 3. Squaring up of Advances and Loans: The CIT also raised concerns about the squaring up of advances taken for the purchase of land and the appearance of sundry creditors in the balance sheet without corresponding purchases. The assessee clarified that the advances were paid for the purchase of land from DDA, which were later transferred to "leasehold land account" upon execution of the lease deed. The assessee provided detailed accounts and confirmations to support the transactions, arguing that the AO had duly examined these aspects during the assessment proceedings. Tribunal's Findings: The Tribunal found that the AO had indeed made inquiries and considered the submissions made by the assessee regarding the advertisement expenses and the advances. The Tribunal noted that the AO had accepted the assessee's claim after due examination and that the CIT's invocation of Section 263 was based on an incorrect assumption that the AO had not conducted proper inquiries. The Tribunal emphasized that the AO's order could not be deemed erroneous or prejudicial to the interest of Revenue merely because the CIT had a different opinion. The Tribunal also highlighted that the business of the assessee had commenced with the acquisition of land, as per the lease deed executed with DDA. The Tribunal referred to various judicial precedents to support the view that in the real estate business, the acquisition of land marks the commencement of business activities, and expenses incurred thereafter are allowable as revenue expenditures. Conclusion: The Tribunal concluded that the CIT's order under Section 263 was invalid as it did not meet the criteria for invoking such powers. The Tribunal quashed the CIT's order and allowed the appeal filed by the assessee, thereby upholding the AO's original assessment order.
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