CIT vs. APOLLO FINANCE LTD

IN THE HIGH COURT OF DELHI AT NEW DELHI . . . ITA 411/2012 . . . CIT ..... Appellant . Through : Sh. Kamal Sawhney, Sr. Standing Counsel. . versus . APOLLO FINANCE LTD ..... Respondent . Through : Sh. Manoj. K. Giri and Sh. A. Sharma, Advocates. . CORAM: . HON'BLE MR. JUSTICE S. RAVINDRA BHAT . HON'BLE MR. JUSTICE R.V.EASWAR . . . O R D E R . 01.08.2012 . . . The question of law sought to be raised by the Revenue is as to the correctness of the ITAT?s order with regard to disallowance made under Section 14A of the IT Act. . The assessee, a registered Non-Banking Finance Company (NBFC) had filed a return for the relevant year disclosing a loss of Rs.2,41,66,610/-; it was assessed to book profit of Rs.61,78,320/- and normal profit at Rs.53,15,710/-. The AO noted that the Assessee had earned dividend income of Rs.4,40,24,000/- which was exempt under Section 10(34). On application of Section 14A read with Rule 8D, the disallowance was worked-out at Rs.2,94,82,320/-. The CIT(A), applying the decision of the Bombay High Court in Godrej and Boyce Mfg. Co. Ltd. v. DCIT 328 ITR 81 held that Rule 8D was inapplicable for any year prior to the Assessment Year 2008-09 and that the AO had acted incorrectly in working-out the disallowance. Considering the materials on record for the Assessment Years 2005-06 and 2006-07, in which years the disallowance was worked-out at Rs.1 lakh and Rs.1.5 lakh respectively, CIT(A) restricted the disallowance to Rs. 2 lakh. The Revenue?s appeal to the Tribunal was dismissed. The Tribunal reasoned as follows: . ?XXXXXX XXXXXX XXXXX . . . 5. We have carefully considered the rival submissions in the light fo . the material placed before us. It has been held by Hon?ble Bombay High Court in the case of Godrej and Boyce Mfg. Pvt. Ltd. (supra) that Rule 8D is applicable for and from Assessment Year 2008-09, therefore, it has to be held that the Assessing Officer was not right in making disallowance on the basis of Rule 8D. But, at the same time, it has been observed by Hon?ble Bombay High Court in the said decision that u/s 14A (1) it is for the Assessing Officer to determine as to whether the assessee had incurred any expenditure in relation to the earning of income which does not form part of the total income under the Act and, if so, to quantify the extent of disallowance. The Assessing Officer would have to arrive at this determination after furnishing an opportunity to the assessee to produce its accounts and to place on the record all relevant material in support of the circumstances which are considered to be relevant and germane. It has further been concluded by their Lordships that even prior to Assessment Year 2008-09 when Rule 8D was not applicable, the Assessing Officer has to enforce the provisions of sub-section (1) of Section 14A. For that purpose, the Assessing Officer is duty bound to determine the expenditure which has been incurred in relation to income which does not form part of the total income under the Act. The Assessing Officer must adopt a reasonable basis or method consistent with all the relevant facts and circumstances after furnishing a reasonable opportunity to the assessee to place all germane material on record. . . . 6. If we see the adjudication by learned CIT (A) in the light of the aforementioned observations of their Lordships, then, it can be found that learned CIT (A) without specifying the material on the basis of which he has restricted the disallowance to Rs. 2 lac has determined the amount which is contrary to the aforementioned observations of their Lordships of the Bombay High Court. Mere history of the case will not be sufficient to determine the extent of the disallowance. Therefore, it will be appropriate in law if the matter is restored back to the file of Assessing Officer for the purpose of determining the quantum of disallowance as per the aforementioned observations of their lordships of the Hon?ble Bombay High court in the aforementioned case. Therefore, we restore this issue to the file of the Assessing Officer to give the assessee a reasonable opportunity of hearing on this issue and to allow the assessee an opportunity to place all material on record on the basis of which the extent of disallowance can be calculated. We direct accordingly. . . . XXXXXX XXXXXX XXXXXX? . This Court notices that the reasoning in Godrej and Boyce Mfg. Co. Ltd. v. DCIT 328 ITR 81 has been followed by the Delhi High Court in Maxopp Investments Limited v. CIT New Delhi 2012 (247) CTR (Del). The directions given by the Tribunal are in conformity with the decision of this Court. In view of this, we find no reason to interfere with the order of the Tribunal; no substantial question of law arise. The Appeal is accordingly dismissed. . S. RAVINDRA BHAT, J . . . . . R.V.EASWAR, J . AUGUST 01, 2012 . ?ajk? . . . $ 1 .