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Income Tax Appellate Tribunal, AHMEDABAD – BENCH ‘A’
Before: SHRI RAJPAL YADAV & SHRI PRADIP KUMAR KEDIA
आयकर अपील�य अ�धकरण, अहमदाबाद �यायपीठ - अहमदाबाद । IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD – BENCH ‘A’
BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER आयकर अपील सं./ ITA No. 1853/Ahd/2016 �नधा�रण वष�/Assessment Year: 2013-14 DCIT,Cir.2(1)(1) M/s.Harsha Engineers Ltd. Ahmedabad. Vs Sarkhej Bhavla Road Changodar, Ahmedabad 382 213 PAN : AAAACH 4828 C अपीलाथ�/ (Appellant) �� यथ�/ (Respondent) Revenue by : Shri S.K. Dev, Sr.DR Assessee by : Shri Tushar H. Hemani, AR
सुनवाई क� तार�ख/Date of Hearing : 11/10/2018 घोषणा क� तार�ख /Date of Pronouncement : 12/10/2018 O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER : Revenue is in appeal against order of the ld.CIT(A)-2, Ahmedabad dated 26.4.2016 passed for the assessment year 2013-14.
Though Revenue has taken four grounds of appeal, but in brief its grievance revolves around a single issue viz. the ld.CIT(A) has erred in law and on facts in deleting disallowance of Rs.89,19,604/- made under section 14A of the Act resulting an impact on the book profit under section 115JB of the Income Tax Act, 1961.
Brief facts of the case are that the assessee is engaged in the business of manufacturing different kinds of bearing cages. It has filed its return of income on 31.8.2013 declaring total income at Rs.27,37,55,058/-. The
ITA No.1853/Ahd/2016 - 2 - case of the assessee was selected for scrutiny assessment and notice under section 143(2) was issued and served upon the assessee. Though the assessee has no dividend income, but the ld.AO worked out disallowance at Rs.89,19,604/- with help of formula provided in Rule 8D. On appeal, the ld.CIT(A) following decision of Hon’ble Gujarat High Court in the case of CIT Vs. Correctech Energy P.Ltd. deleted the additions. Hon’ble High Court in this case has held that if there is no tax free income resulted to the assessee, then there cannot be any question of estimating expenditure incurred by an assessee relatable to such income.
Before us, the ld.counsel for the assessee at the very outset contended that the assessee has not claimed any tax free income therefore, there cannot be any disallowance under section 14A of the Act. He made reference to the decision of Hon’ble Gujarat High Court in the case of CIT Vs. Corretech Energy P.Ltd., 372 ITR 97 (Guj). As far as exclusion of such amount from the computation of book profit is concerned, he submitted that this issue has been considered elaborately by the Special Bench in the case of CIT Vs. Vireet Investment P.Ltd., 165 ITD 27 (Del)(SB). This has been subsequently followed by the ITAT, Ahmedabad Bench in ITA No.805 & 2744/Ahd/2017 in the case of Gujarat Fluorochemicals Ltd. Vs. DCIT as well as in the case of Torrent Cable Ltd., ITA No.2584/Ahd/2012 and ITA No.18/Ahd/2013. He placed on record copies of these decisions. On the other hand, the ld.DR relied upon the order of the AO. We find that in the case of Gujarat Flurochemicals (supra) an elaborate discussion was made on this issue. The discussion made by the Tribunal reads as under:
ITA No.1853/Ahd/2016 - 3 - “16. Next common issued involved in both years is, whether the amount disallowed under section 14A read with rule 8D deserves to be added back in the book profit for the purpose of section 115JB. In other words, whether the additions which have been confirmed by the Tribunal at Rs.1.55 crores in the assessment year 2012-13 and Rs.75 lakhs in the assessment year 2013-14, deserves to be added back in the book profit computed for the purpose of section 115JB.
The ld.counsel for the assessee at the very outset contended that this issue is covered in favour of the assessee by the judgment of Hon’ble Gujarat High Court in the case of CIT Vs. Alembic Ltd. in Tax Appeal No.1249 of 2014 as well as decision of Hon’ble Bombay High Court in the case of CIT Vs. Bengal Finance & Investment P.Ltd., in Tax Appeal No.337 of 2013. He placed on record copies both these decisions. Apart from the above, he placed upon reliance Special Bench decision of the ITAT in the case of CIT Vs. Vireet Investment P.Ltd. 165 ITD 27. On the other hand, ld.CIT-DR relied upon the order of DRP.
We have duly considered rival contentions and gone through the record carefully. We find that ld.DRP has relied upon the order of the ITAT, Mumbai in the case of DCIT Vs. Viraj Profiles Ltd., (2016) 46 ITR (Trib) 0626 (Mum) and held that addition required to be made in the book profit could be calculated as per Rule 8D of the Income Tax Rules. The ld.DRP thereafter made reference to decision of Hon’ble Delhi High Court in the case of CIT Vs. Geotze India Ltd., 361 ITR 505. According to the ld.DRP, this decision has been considered by the Special Bench in the case of Vireet Investment P.Ltd. (supra) but placed reliance upon Hon’ble Bombay High Court in the case of Vodafone India Services P.Ltd. ACIT, 361 ITR 0531 (Bom) and held that DRP is not bound by the ratio laid down by the Special Bench. The discussion made by the DRP on this issue in the assessment year 2013-14 reads as under:
“10.3 In the case of Viraj Profiles Ltd. [2015] 64 taxmann.com 52 (Mum Trib), the Hon'ble Bench has elaborately discussed the issue and held that the disallowance is liable to be calculated as per Rule 8D of the Rules. After discussing the decisions which have also been relied on by the appellant, the Hon'ble Bench has concluded that;
ITA No.1853/Ahd/2016 - 4 -
"In view of our foregoing discussion, we find no infirmity with the orders of the AO and we hold that the AO has rightly disallowed the expenditure of Rs.73,07,018/- by invoking the provisions of Section 14a of the Act read with the Rule 8D of Income Tax Rules. 1962 for computing book profit u/s. 115JB(2) of the Act read with clause (f) to Explanation 1 to clause 115JB(2) of the Act. We, therefore, set aside the orders of the CIT(A) and restore the orders of the AO. We order accordingly.
10.4 In the case of CIT(Central-II) Vs Goetze (India) Limited, the Hon'ble Delhi High Court has in ITA No. 1179/2010 vide order dated 09.12.2013, held that the disallowance u/s 14A is to be taken into consideration for the purposes of calculating book profits u/s 115JA/115JB. The relevant Paras of the judgement are reproduced below:-
"36. By order dated 16th May, 2012, the following substantial questions of law were framed in the present appeals:-
"(i) Whether the Income Tax Appellate Tribunal was right in holding that while computing book profit under Section 115JA (sic. Section 115JB) of the Income Tax Act, 1961, no disallowance under Section 14A was required to be made? -----
Learned counsel for the respondents-assessee, during the course of hearing, has fairly conceded that the first question has to be answered in favour of the Revenue and against the assessee in view of specific provisions in the Explanation 1 below Section 115JB(2) clause(f).
The Assessing Officer it is stated had made an addition of Rs.88,292/- to the book profits towards expenditure incurred having nexus with dividend income, which were
ITA No.1853/Ahd/2016 - 5 - exempt under Section 10(33). Recording the said statement, the first question is answered in favour of the appellant-Revenue and against the respondent- assessee”
10.5 The assessee has relied upon the judgement of ITAT special bench in the case of Vireet Investment Pvt. Ltd.. In this regard it is pertinent to mention that Hon'ble Bombay High Court in the case of Vodafone India Services Pvt. Ltd. vs. Additional Commissioner of Income Tax & Ors. (2014) 264 CTR 0030 (Bom) : (2013) 96 DTR 0193 (Bom) : (2014) 361 ITR 0531 (Bom) : (2014) 221 Taxman 0166 (Bom); has held that the proceedings before DRP are extension of assessment proceedings. Therefore they are not bound by the decision of Tribunals unlike CIT(A) as long as the issue is not acceptable on merit and/or the issue is being contested by the department. In this case, the decision of Hon'ble Delhi High Court in the case of Goetze (India) Ltd cited above is also in favour to the department on this issue which also shows that the view of AO confirmed by the Panel is a plausible view.
There were contradictory orders at the end of the Tribunal. Therefore, Special Bench was constituted to consider the following question:
“Whether expenditure incurred to earn exempt income computed under section 14A could not be added while computing book profit under section 115JB of the Act.”
When the Special Bench has considered this question, it was confronted with two decisions of the Hon’ble Delhi High Court diagonally opposite to each other. One referred by the ld.DRP also in the present case, rendered in the case of CIT Vs. Geotze India Ltd. (supra) and other in the case of Pr.CIT Vs. Bhushan Steel. ITAT, Special Bench has reproduced both these orders in Vireet Investment P.Ltd. (supra) and thereafter it considered as to which decision ought to be followed by a subordinate authority. The department advanced an argument
ITA No.1853/Ahd/2016 - 6 - that in the case Bhushan Steel, Hon’ble Delhi High Court failed to consider subsequent decision of CIT Vs. Geotze India Ltd. (supra). However, the Tribunal after placing reliance upon the decision of Hon’ble Supreme Court in the case of CIT Vs. Vegetable Products Ltd., 88 ITR 192 (SC) and other decisions has held that it is incumbent upon it follow the decision of Hon’ble Delhi High Court in the case of Bhushan Steel. In this case, Hon’ble Delhi High Court has held as under:
“However. Ld. Senior Counsel has relied on the decision in the case of Bhushan Steel Ltd. (supra) wherein it has been held as under:— "ITA 593/2015 PR. CIT ..........Appellant Through: Mr. N.P. Sahni, Senior Standing counsel with Mr. Nitin Gulati, Advocate. versus BHUSHAN STEEL LTD Respondent Through: Ms. Kavita Jha, Advocate with Ms. Roopali Gupta, Advocate. ORDER 29.09.2015 ** ** **
** ** ** 7. Question No. 6 concerns deletion of addition of Rs. 89,00,000 made by the AO for computation of the income for the purposes of Minimum Alternate Tax ('MAT') under Section 115 JB of the Act. This pertained to the expenditure incurred for earning exempt income under Section 14A read with Rule 8D. The ITAT has rightly held that this being in the nature of disallowance, and with Explanation 115JB not specifically mentioning Section 14A of the Act, the addition of Rs.
ITA No.1853/Ahd/2016 - 7 - 89,00,000 was not justified. The view taken by the 1TAT cannot be faulted with. It is consistent with the decision in Apollo Tyres Ltd. v. Commissioner of Income Tax 255 ITR 273 (SC) which held that "the Assessing Officer does not have the jurisdiction to go behind the net profit shown in the profit and loss account except to the extent provided in the Explanation to Section 115J." The Court declines to frame a question on the above issue."
Apart from the above, we have a binding precedent before us - One from Hon’ble jurisdictional High Court and other from the Hon’ble Bombay High court. The question considered by the Hon’ble Gujarat High Court in the case of Alembic Ltd. (supra) is as under:
“Whether on the facts and in the circumstances of the case and in law, the ITAT was justified in holding that adjustment made on account of disallowance u/s 14A of the Act in computation of book profit u/s 115JB of the Act is not as per law without appreciating that the amount disallowable under section 14A is covered under clause (f) of Explanation to section 115JB(2) and, thus, said amount has to be added back while computing amount of book profits?
The Hon’ble Gujarat High Court has replied this question as under: “7. So far as issue Nos. (iii) and (iv) are concerned, the learned counsel for the assessee has relied on the decision of this court in the case of Commissioner of Income-tax-I v. Gujarat State Fertilizers & Chemicals Ltd., reported in (2013) 358 ITR 323 (Gujarat) where this court has held in paragraph Nos. 6 to 6.5 this court has observed as under:
“6. So far as the fourth question is concerned, it pertains to addition of Rs.1,14,43,040/- under Section 115JB of the Act being the expenditure estimated on earning of dividend income under Section 14A of the Act. 6.1 The Assessing Officer on referring to the said provision of Section 115JB(2) of the Act added the said amount considering that any amount of
ITA No.1853/Ahd/2016 - 8 - expenditure relatable to the income exempted under Section 10 of the Act shall need to be added in the profit shown in the 'Profit and Loss Account'.
6.2 When the matter travelled to the CIT (Appeals), since it deleted the addition of Rs.1,14,43,040/- while deciding the question No.1, it consequently deleted such addition under Section 115JB of the Act on the ground that this would not serve any purpose.
6.3 The Tribunal decided the said issue as follows :
”94. We have considered the rival submissions and we find that similar issue was raised by Revenue as per ground No.3 above in respect of regular assessment of income and while deciding that ground, we have already upheld that disallowance of Rs.5 lakh in respect of administrative expenses will meet the ends of justice and no disallowance is called for in respect of interest expenditure. Hence, for the purpose of computing book profit u/s 115 JB of the Act also, we hold accordingly and confirm the addition of Rs.5 lakh. This ground of Revenue's appeal is partly allowed.”
6.4 As rightly held by both, the CIT (Appeals) and the Tribunal, this issue has a direct correlation with the first question. It was argued by the Revenue that while computing the book profit under Section 115JB of the Act, the disallowance of interest expenditure on exempt income was wrongly negatived by both the authorities on the ground that it was not the liability for expenses, but a liability relating to assets.
6.5 We find no fault in the approach adopted by both the authorities. The addition under Section 115JB of the Act of a sum of Rs.1,14,43,040/- when was made as an expenditure estimated on earning of dividend income under Section 14A of the Act, without
ITA No.1853/Ahd/2016 - 9 - reiterating the rationale of confirming deletion of such amount as has been elaborately done at the time of deciding question No.1, this deletion requires to be confirmed.”
Taking into consideration the evidence on record and considering the decision of this court in the case of Commissioner of Income-tax-I vs. Gujarat State Fertilizers & Chemicals Ltd. (supra), we are of the opinion that issue Nos. (iii) and (iv) required to be answered in favour of the assessee and against the revenue. In that view of the matter, we answer questions (iii) and (iv) referred to us in favour of the assessee and against the revenue. The appeal of revenue is dismissed.
Similarly, Hon’ble Bombay High Court has formulated following question in the case of Bengal Finance & Investments P.Ltd. (supra) and replied as under:
(b) Whether on the facts and in the circumstances of the case, and in law, the ITAT is justified in deleting the addition of Rs. 78,84,387/ under clause (f) of Explanation 1 to Section 115JB relying upon the decision in the case of Goetze (India) Ltd. v/s. CIT (2009) 32 SOT 101 (Del.), which has been followed by ITAT, Mumbai in the cases referred to in para 5 of the impugned order without appreciating that the above decision in the case of Goetze (India) Ltd. was rendered by the ITAT, Delhi Bench on completely distinguishable set of facts, peculiar to the said case?” ……. 4 So far as Question (b) is concerned, the impugned order of the Tribunal followed its decision in M/s. Essar Teleholdings Ltd. v/s. DCIT in ITA No. 3850/Mum/2010 to held that an amount disallowed under Section 14A of the Act cannot be added to arrive at book profit for purposes of Section 115JB of the Act. The Revenue’s Appeal against the order of the Tribunal in M/s. Essar Teleholdings (supra) was dismissed by this Court in Income Tax Appeal No.438
ITA No.1853/Ahd/2016 - 10 - of 2012 rendered on 7th August, 2014. In view of the above, question (b) does not raise any substantial question of law.
Respectfully following the above decision, we hold that no addition in the book profit would be made on the basis of calculations worked out under section 14A of the Act. We allow this ground of appeal in both the years and delete the additions.”
It is pertinent to observe that in the present case there is no addition made under section 14A. This is an additional aspect. Hence, facts in the present case rather on better footing than in the case of Gujarat Flurochemicals Ltd. (supra). Otherwise there is no disparity on the issue. The Tribunal in the case of Gujarat Flurochemicals (supra) held that the amounts disallowed under section 14A r.w. rule 8D do not deserves to be added back to the book profit for consideration under section 115JB. The question has been replied in favour of the assessee, and hence, it could not be added back. Similar view has been taken in the case of Torrent Cable Ltd. (supra). Therefore, respectfully following order of the Coordinate Bench (where both of us are party to the earlier orders) we do not find any merit in this appeal of the Revenue. It is dismissed.
In the result, the appeal of the Revenue is dismissed.
Pronounced in the Open Court on 12th October, 2018.
Sd/- Sd/- (PRADIP KUMAR KEDIA) (RAJPAL YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER
Ahmedabad; Dated, 12/10/2018