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Income Tax Appellate Tribunal, “C” BENCH, AHMEDABAD
Before: SHRI O. P. MEENA&
PER Ms. MADHUMITA ROY - JM:
The instant appeal filed by the assessee is directed against the order dated 18.09.2017 passed by the Commissioner of Income Tax (Appeals) – 2, Vadodara under section 143(3) of the Income Tax Act, 1961 (hereinafter referred as to ‘the Act’) arising out of the order dated 23.09.2016 passed by the Dy. Commissioner of Income Tax, Circle – 2(1)(2), Baroda for Assessment Year 2014-15.
The sole grievance of the assessee is this that the Learned CIT(A) has confirmed the action of Learned AO in invoking the provisions of section 14A read with section 8D and confirmed the part addition out of total addition made
MEU Electricals Ltd. vs CIT Asst.Year –2014-15 - 2 - Rs.11,44,850/- by way of giving direction that the investment of Rs.22,87,423/- has been excluded in calculating the average investment.
At the time of hearing of the instant appeal, the Learned Counsel appearing for the assessee submitted before us that no interest bearing fund were used for the purpose of making investment, the provision of section 14A read with section 8D ought not to have been applied by the Authorities below. It is relevant to mention that the necessary evidences in support of the claim of the assessee were furnished in details before us. It was further submitted by the Learned AR that identical issue was set aside to the file of the Learned CIT(A) by the Co-ordinate Bench in for A.Y. 2013-14, the copy whereof has also been furnished before us. He, therefore, prays for similar relief before us. The Learned DR has not been able to make any contrary submission to that of the contentions made by the Learned AR.
Heard the respective parties, perused the relevant materials available on record including the order passed by the Hon’ble Co-ordinate Bench in for A.Y. 2013-14 the relevant portion whereof is as follows: “4. We have heard the representative of the respective parties, we have also perused the relevant materials available on record. The order passed by the Co-ordinate Bench in assessee’s own appeal for A.Y. 2012-13 has also been carefully considered by us whereby and whereunder the Learned CIT(A) was directed to denovo adjudication of the matter; the relevant portion of the said judgment is reproduced herein below: 5. We have carefully considered the rival submissions. We find that identical issue came up before the Co-ordinate Bench in assessment year 2011-12 in assessee own case where in the similar circumstances. The issue was set aside to the file of the Ld. CIT(A) for de nova adjudication. 6. The relevant operative para of the order of the Co-ordinate Bench relevant to assessment year 2011-12 is reproduced hereunder:-
MEU Electricals Ltd. vs CIT Asst.Year –2014-15 - 3 -
We have heard both the sides and perused the material on record. We observed that Id. CIT(A) has sustained the disallowance made by the assessing officer u/s. 14A r.w. Rule 8D in respect of expenditure incurred for earning exempt income by referring to the decision of ld. C1T(A) on the identical issue in the case of assessee for assessment year 2008-09. We have considered the submission of the Id. counsel that because of smallness of the amount of disallowance involved the assessee has not contested the decision of the ld. CIT(A) for assessment year 2008-09. In view of the aforesaid facts and circumstances we observe that in the interest of justice, it will be appropriate to restore this case to the file of ld. CIT(A) to decide it on merit without referring to the decision of the ld. CIT(A) for the assessment year 2008-09. Accordingly, the issue is set aside to the Id. CIT(A) to decide afresh after affording adequate opportunities to the assessee.
- 3 - M/s. MEW Electrical Ltd. vs. DCIT Asst.Year – 2013-14.”
In consonance with the view taken in assessment year 2011-12 the captained issue in assessment year 2012-13 is also set aside to the file of the Ld. CIT(A) with identical directions applicable to assessment year 2011-12. Accordingly, the issue is set aside and restored to the file of the Ld. CIT(A) for adjudication afresh after affording proper opportunity to the assessee to the regard.” Taking into consideration of the order passed by the Co-ordinate Bench on the identical issue we set aside the issue to the file of the Learned CIT(A) with the direction upon him to adjudicate the matter afresh upon taking into consideration the evidence already placed before it and also the evidences which the assessee may choose to file at the time of hearing of the matter before the first appellate authority.
In the result, assessee’s appeal is allowed for statistical purposes.”
Since the identical issue has already been decided by the Co-ordinate Bench whereby and whereunder the Learned CIT(A) has been directed to adjudicate the matter afresh upon taking into consideration the evidence already placed before it, we find no reason to deviate from such observation and direction passed by the Co-ordinate Bench. Hence, respectfully, following the same, we find it fit and proper to set aside the issue to the file of the MEU Electricals Ltd. vs CIT Asst.Year –2014-15 - 4 - Learned CIT(A) with the further direction upon him to give an opportunity of being heard to the assessee and to decide the issue afresh upon taking into consideration the evidence on record before him and also the evidence which the assessee may choose to file at the time of hearing of appeal before him.