SUASHISH DIAMONDS LIMITED,MUMBAI vs. ACIT- RG- 5(3)(2), MUMBAI

The above titled appeals have been preferred by the assessee against the order dated 30.08.2018 of the Commissioner of Income Tax (Appeals) [hereinafter referred to as the CIT(A)] relevant to assessment year 2012-13 & 2013-14.

The assessee has raised the following ground of appeal:

The assessee has also filed additional ground of appeal vide letter dated 17.11.2020 which is reproduced as under: “The learned CIT(A) erred in not restricting disallowance u/s. 14A R.W. Rule 8D to Rs. 36,88,211/- without appreciating that disallowance of Rs. 36,88,211/- u/s. 14A is appropriate in the facts of the present case and same is also in accordance with order passed by Hon'ble ITAT in Assessee own case for A.Y. 2009-10.”

The Ld. A.R. submitted before the Bench that the issue raised in the additional ground is a legal issue emanating out of the assessment records and does not require further verification of facts and submitted that in view of the ratio laid down by the Hon'ble Apex Court in the case of National Thermal Power Corporation Ltd. vs. CIT 229 ITR 383 (SC), the same may kindly be admitted which was strongly opposed by the Ld. D.R.by submitting that it was neither raised before AO nor before CIT(A) and hence may be dismissed.

We have heard the rival submissions of both the parties and perused the material on record. We note that in the main ground of appeal the assessee has challenged the order of Ld. CIT(A) in confirming the disallowance under section 14A read with rule 8D and in the additional ground the assessee contends that the disallowance under section 14A read with rule 8D be restricted to Rs.36,88,211/- in view of the decision of the co- ordinate bench of the Tribunal in assessee’s own case in A.Y. 2009-10. The assessee has also filed a computation to this effect before us during the hearing. We note that additional ground raised is very much connected with the main ground

We have heard the rival contentions and perused the materials on records. The Ld. A.R. of the assessee pointed out that identical issue has been decided by the co-ordinate bench of the Tribunal in the earlier year A.Y. 2008-09 & 2009-10 in & 6865/M/2013 order dated 23.09.2016 wherein the co- ordinate bench of the Tribunal has directed the AO to accept the working of suo-moto disallowance as made by the assessee qua the expenses incurred in relation to exempt income. In the present case before us since the facts are identical, we restore the issue to the file of the AO with the direction to verify the working of the assessee in respect of the disallowance under section 14A of Rs.36,88,211/- and allow the same in accordance with the decision of the co-ordinate bench of the Tribunal in No.42 & 6865/M/2013 A.Y. 2008-09 & 2009-10 order dated 23.09.2016. Consequently the additional ground raised by the assessee is allowed for statistical purpose.

Since we have allowed the additional ground for statistical purpose, the main ground is not being adjuciated.

The issue involved in the present appeal is identical to the one as decided by us above in for A.Y. 2012-13. Therefore, our finding in ITA No.7154/M/2018 for A.Y. 2012-13 would, mutatis mutandis, apply to this appeal as well. Accordingly the additional ground of appeal raised by the assessee is allowed for statistical purpose.

In the result, both the appeals of the assessee are allowed for statistical purposes.