The Commissioner Of Income-Tax, Central – Iii v. M/S.p.v. Constructions, Mumbai

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL (L) NO.2876 OF 2009 The Commissioner of Income-tax, Central – III ..Appellant. Versus M/s.P.V. Constructions, Mumbai ..Respondent. Ms.Padma Divakar for the appellant.Mr.Poras Kaka with Mr.Atul K. Jasani for the respondent. CORAM : Dr.D.Y. Chandrachud & J.P. Devadhar, JJ. DATE : 15[th] Ferbuary, 2010. P.C. : 1.The office objections are over-ruled. The registry is directed to register the appeal. 2.The following substantial questions of law have been framed by the Revenue in this Appeal filed under Section 260 A of the Income-tax Act, 1961 a)Whether the Tribunal was justified in holding that a sum of Rs.300/- per square feet received by the assessee from the flat purchasers and paid to M/s.Jayant Powai Properties Private Limited was liable as a deduction ?”per square feet received by the assessee from the flat purchasers and paid to M/s.Jayant Powai Properties Private Limited was liable as a deduction ?” b) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting the disallowance of sundry balance written off amounting to Rs.17,77,643/- ?Tribunal was justified in deleting the disallowance of sundry balance written off amounting to Rs.17,77,643/- ? 3.The Tribunal has, while dealing with the appeal, relied upon its earlier decision for assessment years 1999-2000, 2000-2001, 2002-2003 and 2003-2004. In that decision, the Tribunal held that the Assessing Officer had proceeded on an erroneous assumption that reversionary rights had been transferred by the assessee against a monthly rent of Rs.6,000/- and that the payment of Rs.300/- per square feet to M/s.Jayant Powai Properties Private Limited (JPPL) was gratituous. The Tribunal noted that the ownership and the reversionary rights belong to JPPL as owner and lessor and a monthly rent of Rs.6,000/- was payable by the assessee to JPPL under the Deed of Lease. The payment of Rs.300/- per square feet was received by the assessee from the flat purchasers but was passed on to JPPL towards the transfer of the reversionary rights of JPPL to the flat purchasers. Hence, according to the Tribunal, the amount of Rs.300/- per square feet belonged to JPPL and was also offered to tax. Consequently, no addition could be made by the Assessing Officer on this account. The finding of fact which has been arrived by the Tribunal is borne out from the material on record. No substantial question of law arises in this regard. 4.The next question which has been raised by the Revenue is in relation to the deletion by the Tribunal of a disallowance of a Sundry Balance written off, in the amount of Rs.17,77,643/-. The Tribunal noted that the assessee had received an amount of Rs.20,000/- from prospective flat purchasers to cover maintenance and other expenses towards common areas, municipal taxes, electricity and other charges. In respect of vacant flats, where there was no agreement to sell, the assessee bore its proportionate share of expenses during the year. The assessee spent, as a matter of fact, more than Rs.20,000/- per flat on maintenance and the excess amount which could not be recovered from the flat purchasers was written off. The Tribunal has while deleting the disallowance come to the conclusion that the assessee had written off the amount as a matter of business expendiency; that the expenditure was incidental to the business of the assessee and hence was liable to deduction. The finding of the Tribunal does not suffer any error. 5.We do not find that any substantial question of law would arise in this appeal. The appeal is accordingly dismissed. There shall be no order as to costs. (J.P. Devadhar, J.) (Dr.D.Y. Chandrachud, J.)