2015 (9) TMI 230 - HC - Income Tax

Reverse of ex parte order passed by ITAT - whether such change of opinion is sustainable in law? - Held that - Admittedly Paper Book filed by the appellant does not contain the Miscellaneous Petition filed by the respondent before the Tribunal for recalling the order dated 21st February, 2003 and the order passed thereon. As it appears that the Tribunal had recalled the order dated 21st February, 2003 and had proceeded to hear the appeal afresh after giving notice to the parties and had passed the impugned order, in view of the law laid down in Income Tax Officer vs. Murlidhar Sarda (1973 (6) TMI 21 - CALCUTTA High Court) and in Khaitan Paper & Industries Ltd (2004 (4) TMI 15 - CALCUTTA High Court ), the question no.(i) is answered in the negative, against the Revenue and in favour of the assessee. Expenditure incurred for project expenditure - AO disallowed the expenditure as it was not related to the current year s income - CIT(A) and ITAT allowed claim - Held that - In our view since the project was abandoned in the assessment year 1995-96 and the entire expenses was written off during the said assessment year, the issue stands covered by the judgment in Binani Cements 2015 (3) TMI 849 - CALCUTTA wherein it was held that The decision to abandon the project was the cause for claiming the deduction. The decision was taken in the relevant year. It can therefore be safely concluded that the expenditure arose in the relevant year. - Decided in favour of the assessee. Deferred Revenue expenditure - ITAT allowed claim - Held that - Since section 43B of the Income Tax Act deals with certain deductions to be made on actual payment, that is payment of tax, duty, cess or fee, or any sum payable by the assessee as an employer by way of contribution to any provident fund or superannuation fund or gratuity fund or any other fund for the welfare of the employees or other deduction as referred to in section 36 or any sum payable by the assessee as interest on any loan or advance or any sum payable by the assessee as an employee in lieu of any leave at the credit of his employer or any sum payable as interest on any loan or borrowing from any public financial institution in accordance with the terms and conditions, which does not have any bearing on the subject matter in issue, and as we find that the Tribunal, while allowing the matter had directed the Assessing Officer to verify whether the claim of ₹ 4,60,000/- is already embedded in the amount of ₹ 31,83,750/- and after verification to allow deduction on the actual amount written off by the assessee during these years, the question need not be answered.- Decided in favour of the assessee.

Summary

Issues:
1. Reversal of ex parte order by Income Tax Appellate Tribunal
2. Allowance of project expenditure when project not in operation
3. Acceptance of deferred revenue expenditure without statutory provision

Issue 1: Reversal of ex parte order by Income Tax Appellate Tribunal:
The appellant challenged the Tribunal's reversal of its ex parte order, alleging it was a change of opinion. The respondent argued that the Tribunal had the power to recall the order under Section 254(2) of the Act, citing relevant judgments. The High Court held that the Tribunal was justified in recalling the order and rehearing the appeal due to sufficient cause, as per established legal principles. Thus, the first issue was decided against the Revenue and in favor of the assessee.

Issue 2: Allowance of project expenditure when project not in operation:
The appellant contended that the Tribunal erred in setting off losses against the assessment year 1995-96, citing relevant case laws. On the other hand, the respondent argued that the project was abandoned, and the entire expenditure was written off during the year, justifying the allowance of deferred revenue expenses. The High Court noted that the Tribunal found no dispute regarding the spread over of expenditure in earlier years and held that the expenditure arose in the relevant year when the project was abandoned. Relying on the judgment in Binani Cement Ltd., the Court concluded in favor of the assessee on this issue.

Issue 3: Acceptance of deferred revenue expenditure without statutory provision:
The Court observed that Section 43B of the Income Tax Act pertains to deductions on actual payment, which was not directly relevant to the matter at hand. The Tribunal directed the Assessing Officer to verify the actual amount written off by the assessee, indicating a practical approach to the issue. Consequently, the Court deemed it unnecessary to provide a specific answer to this question. Ultimately, the appeal was dismissed, with no order as to costs.

This judgment addressed the challenges raised by the appellant regarding the reversal of the ex parte order, allowance of project expenditure, and acceptance of deferred revenue expenditure. The Court's detailed analysis and reliance on relevant legal precedents ensured a comprehensive resolution of the issues raised under the Income Tax Act, 1961.