2014 (2) TMI 1365 - AT - Income Tax

Nature of expenditure - Disallowance of deduction of expenditure on the ground that it was capital expenditure - expenditure pertaining to the proposed new power project under the expense heads (a) professional fees (b) travelling expenses (c) tender expenses - HELD THAT - As assessee was rendering services for operating and maintaining of Power Plant but during the year, the assessee was to start its own Power Plant. The new projects were not expansion of existing business. Even if, the assessee s new projects are in the same line of business expenses relating to new projects are capital in nature and not allowable as revenue as held by the Hon ble Bomaby High Court in case of J. K. Chemical Ltd. 1992 (10) TMI 18 - BOMBAY HIGH COURT . The case law cited by the assessee is not squarely applicable on it because the assessee had incurred expenditure to expand the same business. Thus, we confirm the order of the CIT(A). The assessee s appeal on this ground is dismissed. Charging of interest u/s.234A, 234B and 234C - HELD THAT - Charging of interest u/s.234A, 234B and 234C is mandatory as held by CIT vs. Anzum M. H. Ghaswala Ors. 2001 (10) TMI 4 - SUPREME COURT to the above finding. The A.O. has not charged any interest u/s. 234A only charged u/s. 234B 234C.

Summary

Issues Involved:
1. Validity of the assessment order.
2. Disallowance of deduction for expenditure deemed capital in nature.
3. Levy of interest under Sections 234A, 234B, and 234C.
4. Challenge against initiation of penalty proceedings under Section 271(1)(c).

Detailed Analysis:

1. Validity of the Assessment Order:
The appellant challenged the validity of the assessment order on the grounds that it was general in nature. However, during the hearing, the appellant failed to point out any specific defect in the assessment order. The Assessing Officer (A.O.) passed the order under Section 143(3) for both assessment years (A.Y. 2007-08 and 2008-09) as a first scrutiny assessment, and there was no reopening of the case. Consequently, the Tribunal found this ground of appeal not maintainable.

2. Disallowance of Deduction for Expenditure Deemed Capital in Nature:
The appellant contested the disallowance of Rs. 4,75,07,667 (A.Y. 2007-08) and Rs. 1,63,76,957 (A.Y. 2008-09) claimed as revenue expenditure. The A.O. observed that the appellant, engaged in the business of operating and maintaining power plants, incurred these expenditures for new power projects, which were capital in nature. The expenditures included professional fees, traveling expenses, and tender expenses for various projects such as Ultra Mega Gujarat/MP and Gujarat Imported Coal. The A.O. and CIT(A) relied on various judicial precedents, including CIT vs. Ambica Mills Ltd. and CIT vs. Shri Digvijay Cement Co. Ltd., to conclude that such expenditures were capital in nature as they were incurred for creating new assets or projects. The Tribunal upheld this view, noting that the appellant's expenditures were indeed for new projects and not for the ongoing business of operating and maintaining power plants. Therefore, these expenses were capital in nature and not allowable as revenue expenses under Section 37(1).

3. Levy of Interest under Sections 234A, 234B, and 234C:
The appellant argued against the levy of interest under Sections 234A, 234B, and 234C. The CIT(A) upheld the levy, referencing the Supreme Court's decision in Anjum Ghaswala's case, which held that such interest is mandatory. The Tribunal directed the A.O. to calculate the interest as per law, noting that the A.O. had not charged interest under Section 234A but had charged it under Sections 234B and 234C.

4. Challenge Against Initiation of Penalty Proceedings under Section 271(1)(c):
The appellant challenged the initiation of penalty proceedings under Section 271(1)(c). The CIT(A) dismissed this ground, stating that the challenge was premature. The Tribunal agreed, noting that the issue of penalty proceedings was not ripe for adjudication at this stage.

Conclusion:
The Tribunal dismissed the appeals for both assessment years, affirming the disallowance of the claimed expenditures as capital in nature, upholding the mandatory levy of interest under Sections 234B and 234C, and deeming the challenge against penalty proceedings premature. The orders were pronounced in open court on 21.02.2014.