Vardhman Developers And ... vs Assessee

Vardhman Developers and Vs. Deputy Commissioner of Infrastructure Private Limited Income Tax, Circle -17(1), GF-20, Indraprakash Building, C.R. Building, ITO, Barakhamba Road, New Delhi New Delhi (PAN:AACCV1495M) (Appellant) (Respondent) Appellant by : Sh. Amit Kochar, CA Respondent by: Sh. J.P. Chandrakar, Sr.DR

Date of hearing: 09.02.2015 Date of pronouncement: 11.02.2015

ORDER PER I.P. BANSAL, J.M. :

1. This appeal is filed by the assessee and it is directed against the order

passed by learned CIT(A) dated 10th August, 2011 for the assessment year 2007-

08.

2. Grounds of appeal read as under:

i. The Orders dated 28th June 2010 passed by Ld. Deputy Commissioner of Income Tax, Circle 17(1), New Delhi u/s 271 (1)( c) of the Income Tax Act, 1961 levying penalty of Rs 240000 against the appellate company and the Appellate Orders dated 10.08.2011 passed by learned Commissioner of Income Tax(Appeals)-XIX, New Delhi confirming the penalty are bad in law and on facts.

ii. The learned Deputy Commissioner of Income Tax, Circle 17(1) , New Delhi has passed the impugned orders dated 28th June 2010 u/s 271 (1)(

c) of the Act levying penalty of Rs 2,40,000.00 against the appellate company without appreciating that there is neither concealment of income 2 ITA No. 4674/Del /2011 Assessment Year: 2007-08

nor furnishing of in-accurate particulars of incomes which could fall within rigours of Section 271 (1)(c) of the Act and learned Commissioner of Income Tax(Appeals) has passed the impugned appellate order dated 10.8.2011 totally in disregard of the peculiar facts and circumstances of the appellate company in total disregard of the mandate of rigours of Section 271 (1)( c) of the Act and hence the impugned penalty order dated 28th June 2010 and the appellate order dated 10.8.2011 are bad in law and on facts liable to be quashed.

iii. The impugned penalty order u/s 271 (1)( c) of the Act dated 28th June 2010 and appellate orders dated 10.8.2011 are bad in law and on facts as it fails to appreciate that the explanation offered by appellate company are bona fide and backed by judicial precedents and law keeping in view the business of the appellate company and the expenses incurred by the appellate company towards fee paid to Registrar of Companies for increase in authorized capital of the company are lawful revenue expenses incurred wholly and exclusively for the business of the company and fully allowable keeping in view the peculiar facts and circumstances of the appellate business.

iv. Any other Grounds which may be raised by the appellate company during the appellate proceedings with the permission of the Hon'ble Income Tax Appellate Tribunal.

3. The assessee in the present case is aggrieved with the levy of concealment

penalty of Rs. 2,40,000/- which is levied on addition of Rs. 7,08,800/- claimed

as expenditure incurred on filing fee - ROC which was with respect to increase

in authorized share capital of the assessee company. It is the case of the assessee

that such increase was only on account of working capital requirement and not

on account of investment in creating assets of the company. Therefore, it is the

claim of the assessee that despite the two decisions of Hon'ble Supreme Court,

namely, Punjab State Industrial Development Corporation Ltd. Vs. CIT, 225

ITR 792 and Brooke Bond India Ltd. Vs. CIT, 225 ITR 798 the assessee cannot 3 ITA No. 4674/Del /2011 Assessment Year: 2007-08

be said to have concealed the particulars of income for claiming such

expenditure. It is the case of the assessee that the expenditure having been

incurred for the purpose of working capital requirement, the same cannot be said

to be capital expenditure even applying the aforementioned decisions of Hon'ble

Supreme Court. For this purpose, it is the case of the assessee that the analysis

of balance-sheet of the assessee for the assessment years 2006-07 to 2009-10

will reveal that no part of the authorized enhanced capital was incurred towards

the assets but the same was incurred towards the working capital requirement.

The said chart is as under:

VARDHMAN DEVELOPERS AND INFRASTRUCTURE PRIVATE LIMITED.

In Rs.

2006-07 2007-08 2008-09 2009-10 AS AT AS AT AS AT AS AT 31.03.2007 31.03.2008 31.03.2009 31.03.2010 SOURCES OF FUNDS CAPITAL AND RESERVES 142 323 947 1615 LOAN FUND 984 1330 870 2146 TOTAL SOURCE OF FUND DEPLOYED 1126 1653 1817 3761 APPLICATION OF FUNDS TOTAL FIXED ASSETS 3 10 79 68 TOTAL WORKING CAPITAL 1122 1643 1712 3663 OTHER ASSETS 1 0 26 30 TOTAL APPLICATION OF FUNDS 1126 1653 1817 3761 DEPLOYED

To support the above figures, learned AR has also filed balance-sheet for

the respective years.

4 ITA No. 4674/Del /2011 Assessment Year: 2007-08

4. It is further the argument of learned AR that this plea was duly made by

the assessee before the Assessing Officer even during the course of assessment

proceedings and reference was made to the reply filed before the Assessing

Officer, copy of which is filed at page nos. 6 to 9 of the paper book-II and

relevant para touching the issue is reproduced below:

"During the year under reference, the Company has incurred Rs.708,800 charged to Filing fee ROC in the Profit and Loss Account, the detail of the same is being enclosed herewith at page no 183 to 193. It may be observed from the detail that the Rs. 560000/- was incurred towards fee towards increase in its authorized share capital from Rs. 2000000 to Rs. 100000000/-, paid to Registrar of Companies; the said increase in capital was required for the purposes of enabling the Company to issue more share capital to fulfill the working capital requirement of the Company considering the total working capital required for the purposes of business of the Company and Rs.147000/- was incurred towards stamp duty charges incurred towards stamping of Memorandum/articles of the Company upon alteration of said share capital of the Company. The balance of Rs. 1800/- was paid to Registrar of Companies towards filling fee of annual return, financial statements and other documents. It is clearly evident that the said expenses are related and connected to the business of the Company, and incurred for the purposes of business of the Company, therefore are fully allowed in term of provisions of Income Tax Act, 1961."

5. It is further the argument of learned AR that according to following

observations in the commentary written by Sampath Iyengar's Law of Income

Tax 11th Edition, such expenditure could be claimed by the assessee. Reference

was made to the following:

"14. Fees for enhancement of capital -Fees paid to Registrar of Companies for enhancement of capital is capital expenditure. However, the Supreme Court in Brooke Bond India Ltd v CIT while following the decision in Punjab State Industrial Development Corporation's case (supra), had indicated an exception, that should be possible, in cases where such expansion was for purposes of meeting the need for working funds of the assessee company. It dismissed the claim for deduction on this basis only on the ground that in the statement of the 5 ITA No. 4674/Del /2011 Assessment Year: 2007-08

case, the Tribunal did not indicate a finding that the expansion was for meeting working capital needs so as to justify deduction on this ground in the following words:

"It is no doubt true that before the Appellate Assistant Commissioner as well as before the Tribunal it was submitted on behalf of the assessee that the increase in the capital was to meet the need for working funds for the assessee-company. But the statement of case sent by the Tribunal does not indicate that a finding was recorded to the effect that the expansion of the capital was undertaken by the assessee in order to meet the need for more working funds for the assessee. We, therefore, cannot proceed on the basis that the expansion of the capital was undertaken by the assessee for the purpose of meeting the need for working funds for the assessee to carry on its business. "

Following these two decisions, the amount was disallowed and it was further found that such amount would not be admissible on a staggered basis even under section 350 in view of the fact that it was not for mere expansion of the capital base. Benefit of section 350 is, therefore, available for initial setting up or in connection with setting up a new industrial unit, but not for meeting the expanding needs of the business."

6. It is further the case of learned AR that the return of income was filed by

the assessee on 15th November, 2007 and as per the decision of Delhi Tribunal,

dated 26th May, 2006 in the case of ACIT Vs. Fascel Ltd., 120 TTJ 289 (Del.),

the expenditure incurred by the said assessee for increase in authorized share

capital amounting to Rs. 7,08,000/- were allowable and reference was made to

paras 17 and 18 which for the sake of convenience are reproduced below:

"17. The assessee had claimed a sum of Rs. 7,96,300 under section 35D of the Income-tax Act. The deduction claimed was in respect of payment of fees to the Registrar of Companies (hereinafter referred to as RoC) for increase" in share capital of the assessee company. According to the Assessing Officer the provisions of section 35D of the Act did not apply to the payment of fees to RoC and he accordingly disallowed the claim of the assessee. The CIT(A), however, deleted the addition made by the Assessing Officer following the decision of the 6 ITA No. 4674/Del /2011 Assessment Year: 2007-08

Hon'ble Rajasthan High Court in the case of CIT v. Multi Metals Ltd. [1991] 188 ITR 151 (Raj.). Aggrieved by the order of the CIT(A) the revenue has preferred the aforesaid ground of appeal. .

18. We have heard the rival submissions. The learned Departmental Representative relied on the decision of the Hon'ble Supreme Court in the cases of Punjab State Industrial Development Corp. Ltd. v. CIT [1997] 225 ITR 792ftnl Asstt. CIT v. Fascel Ltd .. htm (SC) and Brooke Bond India Ltd. v. CIT [1997] 225 ITR .798ftn2 Asstt. CIT v : Fascel Ltd .. htm (SC). Section 35D(2) clause (c)(iv) allows 1/10th of expenditure incurred in connection with issue for public subscription of shares in or debentures of a company. The Rajasthan High Court in the case of Multi Metals Ltd (supra) had considered the fee paid to RoC as falling within the ambit of section 35D(2)(c)(iv) of the Act. The Hon'ble Supreme Court in the case of Punjab State Industrial Development Corporation Ltd. (supra) and Brooke Bond India Ltd. (supra) was, however, dealing with a different situation, namely, as to whether the fee paid to RoC is a capital expenditure or revenue expenditure. We, therefore, see no conflict between the decision of the Hon'ble Supreme Court and the Rajasthan High Court in the case of Multi Metals Ltd. (supra). The CIT(A) has followed decision of the Hon'ble Rajasthan High Court and had allowed the claim of the assessee. We confirm the order of the CIT(A) and dismiss this ground of appeal of the Revenue also."

7. It was further submitted that the said decision of Delhi Tribunal was

reversed by Hon'ble Delhi High Court in the case of CIT Vs. Fascel Ltd., 221

CTR 0305 and the said decision was rendered on 4th December, 2008 and thus it

was pleaded by learned AR that on the date when the assessee filed the return

two view were prevailing and the claim of expenditure was debatable therefore,

no penalty can be levied in view of the decision of Hon'ble Supreme Court in

the case of CIT Vs. Reliance Petroproducts Pvt. Ltd., 322 ITR 158 (SC).

Referring to above argument, it was submitted by learned AR that the Assessing

Officer has committed error in levying the penalty and learned CIT(A) has also

committed an error in sustaining the same.

7 ITA No. 4674/Del /2011

Assessment Year: 2007-08

8. On the other hand, it was submitted by learned DR that as per the well

settled law laid down in the two decisions of Hon'ble Supreme Court i.e. in the

cases of Punjab State Industrial Development Corporation Ltd. Vs. CIT (supra)

and Brooke Bond Indian Ltd. Vs. CIT (supra), such expenditure could not be

claimed. It was further submitted that in view of the aforementioned decisions,

the claim of the assessee was prima facie wrong and is a bogus claim. Learned

DR submitted that similar submissions were made before the learned CIT(A)

and by way of speaking order, learned CIT(A) has dismissed all the arguments

of the assessee. Thus, it was submitted by learned DR that penalty has rightly

been sustained by learned CIT(A) and his order should be upheld and the appeal

filed by the assessee should be dismissed.

9. We have carefully considered the rival submissions in the light of the

material placed before us. To claim that such expenditure is allowable, assessee

is relying upon the commentary of Iyengar's Law of Income Tax 11th Edition,

the relevant portion has already been reproduced above. A clear reading of the

aforementioned commentary will reveal that no specific view has been formed

by the Apex Court regarding allowability of such claim that if there is increase

in working funds then such expenditure could be allowed. The observations

which have been reproduced are from the decisions of Apex Court in the case of

Brooke Bond Indian Ltd Vs. CIT (supra). However, in the case of Punjab State

Industrial Development Corporation Ltd. Vs. CIT (supra), this issue has been 8 ITA No. 4674/Del /2011 Assessment Year: 2007-08

considered and it has been observed that the fee paid to Registrar for expansion

of capital base of the company was directly related to the capital expenditure

incurred by company and although incidentally that would certainly help in

business of company and may also help in profit making, it still retains the

character of capital expenditure, since the expenditure was directly related to the

expansion of capital base of the company. Thus, there was no doubt on the issue

that even when there is increase in the capital for the business of the company

then also the expenditure would be capital in nature and cannot be claimed as

revenue expenditure. Therefore, clear-cut law has been laid down by Hon'ble

Apex Court that such expenditure cannot be claimed as revenue expenditure.

10. Now coming to the contention of learned AR that in view of the decision

of Tribunal in the case of ACIT Vs. Fascel (supra) there was one possible view

according to which it can be said that such expenditure could be claimed as

revenue expenditure. Relevant observation of the Tribunal have already been

reproduced above and Delhi Tribunal has followed the Hon'ble Rajasthan High

Court decision in the case of CIT Vs. Multi Metals Ltd., 188 ITR 151 (Raj.) and

the two decisions of Hon'ble Supreme Court i.e. in the cases of Punjab State

Industrial Development Corporation Pvt. Ltd. (supra) and Brooke Bond India

Ltd (supra) have been distinguished. The said decision of ITAT, Delhi was

reversed by Hon'ble Delhi High Court in the case of CIT Vs. Fascel (supra)

where their Lordships have referred to the earlier decisions of Delhi High Court 9 ITA No. 4674/Del /2011 Assessment Year: 2007-08

in the case of CIT Vs. Hindustan Insecticides Ltd. , 250 ITR 338 which is a

decision dated 14th February, 2001. Thus, there is no force in the claim of

learned AR that on the date when the assessee filed the return there were two

views. The Delhi Tribunal while deciding the issue, did not consider the existing

decision of Hon'ble Delhi High Court in the case of CIT Vs. Hindustan

Insecticides Ltd (supra) therefore, it cannot be said that the Tribunal while

deciding the appeal of Fascel Ltd. (supra) has taken a possible view of law. In

view of the existing decision of Hon'ble Delhi High Court in the case of CIT Vs.

Hindustan Insecticides Ltd. (supra), on the date when assessee filed its return

and claimed the impugned expenditure, there was no other view possible.

11. During the course of hearing, learned AR referred to the decision of

Hon'ble Supreme Court in the case of CIT Vs. Reliance Petroproducts Private

Ltd. (supra) to contend that the assessee cannot be said to have furnished

inaccurate particulars and mere making the claim does not tantamount to

concealment. We find no force in such contention of learned AR as the claim

made by the assessee is prima facie wrong and is against the two decisions of

Hon'ble Supreme Court in the cases of Brooke Bond India Ltd. (supra) and

Punjab State Industrial Corporation Ltd. (supra). The decision of Hon'ble

Supreme Court in the case of CIT Vs. Reliance Petroproducts Pvt. Ltd. (supra)

cannot be applied to the facts of the assessee's case as by claiming the

expenditure which is against the law laid down by Hon'ble Supreme Court and 10 ITA No. 4674/Del /2011 Assessment Year: 2007-08

Hon'ble Jurisdictional High Court will amount to furnish of inaccurate particulars

and concealment of income. Thus, applying the aforementioned decision in the case

of CIT Vs. Reliance Petroproducts Private Ltd., no relief can be granted to the

assessee.

12. In the above circumstances, the claim of the assessee was against the

decision of Hon'ble Delhi High Court and thus was prima facie wrong claim. When

prima facie, a wrong claim is made, which is not only against two decisions of

Apex Court i.e. in the cases of Brooke Bond India Ltd. (supra) and Punjab State

Industrial Corporation Ltd. (supra), but also against the decision of Hon'ble Delhi

High Court in the case of CIT Vs. Hindustan Insecticides (supra) then it will be a

case of claiming expenditure, which is not permissible in law and assessee's

explanation cannot be considered to be bona fide or substantiated.

13. In view of above discussion, we are of the opinion that the learned CIT(A)

did not commit any error in sustaining the concealment penalty. We decline to

interfere and the appeal filed by the assessee is dismissed.

14. In the result, the appeal of the assessee is dismissed.

The decision is pronounced in the open court on 11th February, 2015.

Sd/- Sd/- (N.K. Saini) (I.P. Bansal) Accountant Member Judicial Member Dated: 11th February, 2015. RK/- Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi