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TMI Blog2017 (9) TMI 1222X X X X Extracts X X X X X X X X Extracts X X X X ..... Del/2014 And CO. No. 194/Del/2015 - - - Dated:- 15-9-2017 - SHRI O.P. KANT, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER For The Revenue : Shri R.C. Dande, Sr. DR For The Assessee : Ms. Rano Jain, Adovcate Shri Ashish Goel, CA ORDER PER AMIT SHUKLA, JUDICIAL MEMBER: The aforesaid appeals and cross objection have been filed by the revenue as well as by the assessee respectively against separate impugned order of even date 10.09.2014, passed by the Ld. CIT (Appeals) V, New Delhi for the quantum of assessment passed u/s 143(3) for the A.Ys. 2010-11 and 2011-12. 2. Since issues involved in both the years are common arising out of identical set of facts, therefore, they were heard together and are being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been that its operation had started and it had already obtained approval of IT SEZ;, has done fencing and ground leveling work; and had executed appointment of master planner for all these work. It had already spent ₹ 85.59 crore towards capital-in-progress. The expenses claimed were normal business expenditure incurred for the business and corporate set-up. However the Assessing Officer had made the disallowance on the ground that no business activity had been carried out. 5. Before the Learned CIT (Appeals) detailed submissions were made both on factual points and on legal points relying upon various judgments especially in the case of CIT vs. Hughes Escorts Communications Ltd. 311 ITR 253 (Del), wherein the jurisdictional Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that commencement of business cannot be said unless SEZ project is ready for sale and that since there is no business income and therefore no expenditure is incurred, is also legally incorrect. In support of this proposition the appellant has relied on several decisions of the Hon ble Court including that of CIT vs. Saurashtra Cement(Supra); CIT vs ESPN Software(Supra); CIT vs. Hughes Escorts Communication Ltd. (Supra). I have carefully gone through the submission of the appellant and considering the facts of the case and the nature of business and the ratio of the decision relied upon by the appellant it is observed that it is an established legal proposition by now that all revenue expenses incurred after the setting up of business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hi vide the appellate order dated 5.11.2012. I have gone through the finding of the Id. CIT(A) on the issue and am in agreement with the same. Consequently, in view of the above discussion the expenses for ₹ 1,89,69,082/- is directed to be deleted and the appeal is allowed. 6. It has been admitted by both the parties that his issue had been decided by the Tribunal in assessee s own case for the A.Y. 2009-10. However the Ld. DR relied upon other ITAT case of Akzo Nobel Car Refinishes India Pvt. Ltd. (2008) 25 SOT 226 (Delhi). 7. After considering the rival submissions and on perusal of the impugned order and also the order of the Tribunal in assessee s own case for the A.Y. 2009-10 in ITA No. 770/Del/2013, we find that this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e business. The contention of the assessee also finds support from the judgments of the High Court in the case of CIT vs. Sarabhai Management Corporation Ltd. 102 ITR 25 (Guj) and CIT vs. Hughes Escorts Communication Ltd. 311 ITR 253 (Del). 6.3. The first appellate authority at para 5.5 held as follows: In the present case before me, the appellant company, as stated herein above, has started systematic business activities. It has recruited the various staff and the staff(s) (sic) (are) engaged in carrying on the business activity. Further, it has entered into a commercial agreement with Tata Consultancy Services for leasing out the SEZ which is the business of the appellant company. Thus the facts of this case are different than the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Refinishes India Pvt. Ltd. (supra), we find that it is distinguishable on facts and moreover when there is precedence in assessee s own case, then same should be followed. Thus, revenues appeal is dismissed. C.O. No. 194/Del/2015 10. In the cross objection the assessee has raised following grounds of appeal:- 1. On the facts and circumstances of the case, learned CIT(A) has erred both on facts and in law in not adjudicating the contention of the assessee that the AO has erred in not allowing the benefit of brought forward losses and unabsorbed depreciation of the earlier years. 2. The respondent craves leave to add or alter any grounds of cross objection. 11. It has been admitted by both the parties that it is con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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