ITTINA PROPERTIES PVT., LTD.,,BANGALORE vs. ADDL.COMMISSIONER OF INCOME-TAX, BANGALORE

The assessee raised the following grounds: 1. The learned assessing officer had erred in passing the order U/s. 144 of the I.T. Act, 1961 and the Commissioner of Income tax (Appeals) has erred in confirming the same. On the facts and circumstances of the case, the order passed exparte was bad in law and therefore is liable to be quashed. 2. The learned Assessing Officer had also erred in disallowing a sum of Rs. 6,18,080/-under rule 8D(2)(ii) read with section 14A of the I.T. Act, 1961 and the learned Commissioner of Income tax (Appeals) has erred in confirming the same on the facts and law

The first ground is with regard passing of the order under section 144 of the Income Tax Act, 1961 (hereafter called ‘the Act’), without participation of the assessee before the AO. At the time of hearing, no argument has been put by the AR of the assessee on this issue. Being so, this ground is dismissed as not pressed.

The next ground is with regard to disallowance under section 14A r.w.r. 8D(2)(ii). The facts of the issue are that during the Assessment Year under consideration, assessee received dividend of Rs.4,180/- which was claimed as exempted income under section 10(38) of the Act. The assessee is said to be incurred no expenditure to earn this income. However, the AO invoked the provisions of section 14A r.w.s. 8D and disallowed a sum of Rs.13,31,120/-. Against this, assessee carried the appeal to CIT(A). With regard to applicability of Rule 8D(2)(ii), the CIT(A) observed that the exempted investment was not made out of interest free funds of the company, as such disallowance of Rs.6,18,080/- has been confirmed. With regard to applicability of of 8D(2)(iii), he observed that investment in shares of assessee group company cannot be taken into consideration for making disallowance under section 14A of the Act, as such he directed the AO to recompute the disallowance by excluding such investment and he has given partial relief.

Against this, assessee is in appeal before us. Before us, learned AR submitted that the disallowance under section 14A r.w.r. 8D cannot exceed the exempted income and placed reliance on the judgment of Madras High Court in the case of PCIT Vs. Envestor Ventures Ltd., 123 taxmann.com 378 (Madras) and also order of the Co-ordinate Bench in the case of Global Teck Park Pvt. Ltd., Vs. ACIT 118 taxmann.com 419 for the proposition that disallowance under section 14A r.w.r. 8D can never exceed exempted income earned by assessee during particular Assessment Year and further without recording satisfaction by AO that apportionment of such disallowable expenditure made by AO with respect to exempted income is not acceptable for reasons to be assigned by AO, he cannot resort to computation method under Rule 8D. It is also submitted by AR that at best disallowance should be restricted to exempted income to the tune of Rs.4,180/-. We have heard both the parties and perused the material on record. Learned DR relied on the order of lower authority.

We find force in the argument of learned AR that disallowance under section 14A r.w.r. 8D cannot go beyond the extent of exempted income itself. This view is fortified by the judgment of Madras High Court in the case of CIT Vs. Chettinad Logistics (P.) Ltd., 80 taxmann.com 221 and also by judgment of Delhi High Court in the case of Joint Investments (P) Ltd vs. CIT 372 ITR 694. Following the aforesaid decision of the Madras High Court in the case of Envestor Ventures Ltd., (supra), deleted the disallowance made under section 14A r.w.r. 8D. Same view was taken by Co-ordinate Bench in the case of Global Teck Park Pvt. Ltd. Being so, taking a consistent view, we are inclined to hold that disallowance in the case of assessee cannot exceed the exempted income to the tune of Rs.4,180/- only. Thus, ground Nos.2 and 3 of appeal of the assessee are partly allowed.

Ground No.4.1 is with regard to disallowance of claim of assessee on account of reduction of closing stock of work in progress at Rs.28,99,40,548/-. The assessee, since its inception had been maintaining books of accounts under percentage completion method as recognized by AS 7 till the Assessment Year 2007-08. Search action was taken in the premises of the assessee on 28.02.2008. Subsequently, in response to notice under section 153A of the Act, the assessee had filed return of income from Assessment Year 2002-03 to 2007-08 by recognizing revenue as per AS 7. However, Audited statements were not changed. For Assessment Year 2008-09 and 2009-10, the assessee changed the method of recognizing the revenue from AS 7 to AS 9 and accordingly the financial statements were drawn. During proceedings under section 153A of the Act, the AO had completely ignored the return filed under section 153A of the Act based on AS 9 and considered the return filed under section 139(1) of the Act and held that percentage completion method AS 7 as appropriate method and finalized the assessment and thus resulted in addition

Learned AR submitted that the assessee has debited a sum of Rs.28,99,40,548/- to the P & L Account under the head “difference in closing and opening stock”. This forms part of assessee’s transition entries from AS 7 to AS 9. This amount has been disallowed on the ground that the year in which closing inventory was part of assessee’s P & L account, the assessee had claimed deduction under section 80IB(10) of the Act. Therefore, in the Assessment Year under consideration when the inventory values are reduced on account of transition, no deduction should be allowed. According to learned AR, the assessee had claimed benefit under section 80IB(10) in earlier Assessment Year only to the tune of Rs.27,80,57,341/- and the balance amount of Rs.1,18,83,207/- not pertained to the project which entitled for exemption under section 80IB(10) of the Act, as such according to him, the addition at best be restricted to Rs.27.80 Crores on account of claim of reduction in closing stock of work in progress. On the other hand, learned DR on the order of the lower authorities.

We have heard both the parties and perused the material on record. The assessee furnished the details of claim of deduction under section 80IB(10) in earlier years which was to the tune of Rs.27,80,57,341/-. However, the AO considered the deduction claimed by assessee in earlier years to the tune of Rs.28,99,548/-. Thus, the disallowance is in excess of Rs.1,18,83,207/-. The learned AR submitted that the disallowance on account of reduction in value of closing stock of work in progress in the Assessment Year under consideration due to change of applicability of accounting standing from AS 7 to AS 9 to be restricted to only to the extent of Rs.27,80,57,341/- on which the assessee has claimed deduction under section 80IB(10) of the Act in earlier years and the

The next ground in this appeal is with regard to addition of Rs.13,90,45,559/- under the caption unexplained reduction in closing work in progress. The facts of this issue are that the AO disallowed a sum of Rs.13,90,45,559/- on account of unexplained deduction in closing work in progress. The AO worked out reconciliation of opening and closing inventory and made following working:

Learned DR relied on the order of the lower authorities.

We have heard both the parties and perused the material on record. In the computation of income, the AO made following additions towards change in following accounting standard AS 7 to AS AS 9:

Now the contention of the AR is that correct figure of disallowance on account of loss from project Mahaveer is only Rs.8,20,29,841/- instead of this, the AO made disallowance at Rs.13,90,45,559/-. There was an error in computing above figure. Once AO has already disallowed Rs.8,20,29,838/- in para 16 of Assessment Order and once again he has made disallowance at Rs.13,90,45,559/- which amounted to double disallowance on account of some lapse by the assessee which cannot be permitted. Hence, the total addition made by the AO at Rs.13,90,45,559/- is deleted where the AO wrongly considered this figure instead of Rs.8,20,29,841/-. This ground of assessee is allowed.

In the result, assessee’s appeal is partly allowed.