M/S.oriental Hotels Limited v. The Deputy Commissioner Of Income Tax,Company Circle – V(1),Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 17.02.2021 CORAM THE HON'BLE MR.JUSTICE M. DURAISWAMYANDTHE HON'BLE MRS.JUSTICE T.V. THAMILSELVI Tax Case Appeal No.239 of 2011 M/s.Oriental Hotels Limited,37, M.G. Road, Nungambakkam,Chennai – 600 034. ...Appellant /Respondent Vs. The Deputy Commissioner of Income Tax,Company Circle – V(1),Chennai. ... Respondent/Appellant Tax Case Appeal filed under Section 260A of the Income TaxAct, 1961 against the order of the Income Tax AppellateTribunal, Madras “B” Bench, dated 21.01.2011 passed inI.T.A.No.1974/Mds/2008 and this appeal preferred against theorder of the Commissioner of Income Tax (Appeals) V, Chennai 34,dated 22.02.2008 made in ITA.No. 658/06-07 for the AssessmentYear 2004 -2005 and against the order of the Deputy Commissionerof Income Tax, Company Circle V (1), Chennai dated 26.01.2006made in PAN.No. AAACO 0728N/51001-0 for the Assessment Year2004-2005. For Appellant : Mr.Venkata Narayanan for M/s.Subbaraya Aiyar This appeal filed by the assessee under Section 260A of theIncome Tax Act, 1961 ('the Act' for brevity), is directedagainst the order dated 21.01.2011 passed by the Income TaxAppellate Tribunal, Madras "B" Bench, Chennai ('the Tribunal'for brevity) in I.T.A.No.1974/Mds/2008 for the Assessment Year https://hcservices.ecourts.gov.in/hcservices/ 2004-2005. The above appeal has been admitted on 01.08.2011 onthe following Substantial Questions of Law: "1. Whether the Appellate Tribunal was right inlaw in holding that the expenditure incurred towardsarchitect fees and soil testing charges in respect ofnew hotel project which was later abandoned is capitalin nature? 2. Whether the decision of the jurisdictionalHigh Court in the case of EID Party (India) Ltd. Vs.CIT reported in 257 ITR 253 dealing with disallowanceof expenditure incurred toward a new business formanufacture of new product which was abandoned wouldapply to the present case where the expenditure wasincurred towards a new project in the same line ofbusiness?" 2. We have heard Mr.Venkata Narayanan for M/s.SubbarayaAiyar, learned counsel for the appellant/ assessee andMr.T.Ravikumar, learned Senior Standing Counsel for therespondent/Revenue. 3. It may not be necessary for this Court to decide theSubstantial Questions of Law framed for consideration on accountof certain subsequent developments. The Government of Indiaenacted the Direct Tax Vivad Se Vishwas Act, 2020 (Act 3 of2020) to provide for resolution of disputed tax and for mattersconnected therewith or incidental thereto. The Act of theParliament received the assent of the President on 17[th]March2020 and published in the Gazette of India on 17[th]March 2020. 4. We are informed by the learned counsel for theappellant/assessee that the assessee has already filed therequisite Forms 1 & 2 on 30.12.2020 under Section 4 of the Act. 5. In the light of the fact that the assessee has alreadyavailed the benefit under the Act, no useful purpose would beserved in keeping this appeal pending. At the same time,safeguarding the interest of the assessee in the event the orderto be passed by the Department under the Act is not in favour ofthe assessee. Accordingly, the Tax Case Appeal stands disposedof on the ground that the assessee has already filed therequisite Forms 1 & 2 and the Department shall process theapplication at the earliest in accordance with the said Act andcommunicate the decision to the assessee at the earliest. Asobserved, the assessee is given liberty to restore this appealin the event the ultimate decision to be taken on the https://hcservices.ecourts.gov.in/hcservices/ 5. In the light of the fact that the assessee has alreadyavailed the benefit under the Act, no useful purpose would beserved in keeping this appeal pending. At the same time,safeguarding the interest of the assessee in the event the orderto be passed by the Department under the Act is not in favour ofthe assessee. Accordingly, the Tax Case Appeal stands disposedof on the ground that the assessee has already filed therequisite Forms 1 & 2 and the Department shall process theapplication at the earliest in accordance with the said Act andcommunicate the decision to the assessee at the earliest. Asobserved, the assessee is given liberty to restore this appealin the event the ultimate decision to be taken on the https://hcservices.ecourts.gov.in/hcservices/ declaration filed by the assessee under Section 4 of the saidAct is not in favour of the assessee. If such a prayer is made,the Registry shall entertain the prayer without insisting uponany application to be filed for condonation of delay inrestoration of the appeal and on such request made by theassessee by filing a Miscellaneous Petition for Restoration, theRegistry shall place such petition before the Division Bench fororders. 6. With this observation, the Tax Case Appeal standsdisposed of with the aforementioned liberty and consequently,the Substantial Questions of Law are left open. No costs. Sd/-Assistant Registrar //True Copy// Sub Assistant RegistrarmknTo 1. Income Tax Appellate Tribunal, Madras “B” Bench 2.The Commissioner of Income Tax, (Appeals) V, Chennai 34. 3. The Deputy Commissioner of Income Tax, Company Circle – V(1), Chennai. +1cc to Mr.Subbaraya Aiyar, Advocate, S.R.No. 9621+1cc to Mr.T.Ravikumar, Seniour Counsel, S.R.No. 9747 Tax Case Appeal No.239 of 2011 KJ(CO)GN(15/03/2021) https://hcservices.ecourts.gov.in/hcservices/