2019 (7) TMI 1095 - HC - Income Tax

Disallowance of expenses u/s 37(1) - disallowance of depreciation u/s 32 - proof of commencement of business - ITAT stated that the nature of business of the assessee company was to develop various common facilities and the material facts as elaborated in the order substantiate that the business of the assessee company was set up during the year under consideration - ITAT further held that assessee company was entitled to depreciation on plant and machinery which includes office equipment and vehicle, computer, computer software and furniture, fixture used for the purpose of business HELD THAT - Tribunal, while concurring with the findings recorded by the CIT(A), has observed that having regard to the materials on record it can be said that the business of assessee had been set up and that the only thing was that the assessee was not able to generate any income out of the same. The CIT(A), as well as the Tribunal, have placed reliance on the decision of this Court in the case of CIT Vs Saurashtra Cement And Chemical 1972 (8) TMI 19 - GUJARAT HIGH COURT this Court, explaining the meaning of business , held that business connotes a continuous course of activities, which go to make up the business, need not be started simultaneously in order that the business may commence. The business would commence when the activity which is first in point of time and which must necessarily precede all other activities, is started - Decided against revenue.

Issues:
1. Appeal under Section 260A of the Income Tax Act, 1961 by Revenue against ITAT order for A.Y. 2012-13.
2. Disallowance under section 37(1) r.w.s 3 of the Act.
3. Disallowance under section 32 r.w.s 3 of the Act.
4. Interpretation of the term "business" for commencement of business activities.

Analysis:

1. The appeal was filed by the Revenue against the ITAT order for A.Y. 2012-13. The first issue raised was the disallowance of ?2,40,18,801 under section 37(1) r.w.s 3 of the Act. The Tribunal upheld the order of the CIT(A) in deleting this disallowance. The Tribunal observed that the nature of the business of the assessee company involved various activities related to the development of Gujarat International Finance Tech City (Gift City) and that the business had been set up during the relevant assessment year. The Tribunal found no error in the decision of the CIT(A) and dismissed the ground of appeal by the Revenue.

2. The second issue raised was the disallowance of ?1,11,38,327 under section 32 r.w.s 3 of the Act. The Tribunal, in line with the CIT(A), determined that the business of the assessee company was actually commenced in the assessment year 2012-13. Therefore, the assessee was entitled to claim depreciation on plant and machinery used for business purposes. The Tribunal found no merit in the appeal by the Revenue and dismissed this ground of appeal as well.

3. The Tribunal and CIT(A) relied on the decision of the High Court in the case of Commissioner of Income Tax Vs Saurashtra Cement And Chemical to interpret the term "business." It was held that business connotes a continuous course of activities, and the commencement of business activities does not require all activities to start simultaneously. The business commences when the first activity, essential in the course of carrying on the business, is initiated. This interpretation guided the decisions in the present case regarding the commencement of the assessee's business activities.

4. In conclusion, the Tribunal found no error in the decisions of the lower authorities and dismissed the appeal by the Revenue. The Tribunal affirmed that the business of the assessee had been set up during the relevant assessment year, even though no income was generated. The interpretation of the term "business" was crucial in determining the commencement of business activities and the eligibility for depreciation claims on assets used for business purposes.

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