Loading judgment…
No AI summary yet for this case.
Detected automatically from the text. The count shows how many other judgments on BharatTax rely on the same authority.
Income Tax Appellate Tribunal, “SMC” BENCH,
Before: SHRI SHAMIM YAHYA, AM & SHRI AMARJIT SINGH, JM
O R D E R
PER AMARJIT SINGH, JM:
The revenue has filed the present appeal against the order dated 30.04.2019 passed by the Commissioner of Income Tax (Appeals) -9, Mumbai [hereinafter referred to as the “CIT(A)”] relevant to the A.Y.2012- 13.
The revenue has raised the following grounds: - "
1. Whether on the facts and circumstances of the case and in Ian', the Ld. CIT(A) was right in deleting the disallowance u/s 14A winch was computed as per Rule 8D of I.T. Rules 1962 on the basis of CBDT Circular No.5/2014 dated 11.02.2014 which clearly states that it is not necessary to earn exempt income in a particular year in which the disallowance is made?
2. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) was right in restricting the disallowance u/s 14A holding that A.Y.2012-13 no disallowance is to be made when the assessee not earned any exempt income which is contrary to CBDT Circular No.5/2014 which clarifies that the Rule 8D r.w.s. 14A of the Act provides for disallowance of the expenditure even where taxpayer in a particular year has not earned any exempt income?
3. Whether on the facts and circumstances of the case and in Jan', the Ld. CIT(A) was rig/it in deleting the disallowance of Rs.3,00,40,824/- made u/s 14A r.w. Rule 8D without appreciating the fact that the amount of disallowance u/s.14A of the l.T. Act, 1961 has to be computed as per Rule SD of I.T. Rules, 2962 when the computation of the assessee was not found to be correct and as held in the order of the Hon'ble Bombay High Court in the case of MIs. Godrej & Boyce Manufacturing Co. Ltd.?
4. The appellant prays that the order of CIT(A) on the above grounds be set aside and that of Assessing Officer be restored.
5. The appellant craves leave to amend, alter, delete or add grounds which may be necessary.”
3. The brief facts of the case are that the assessee filed its return of income on 20.09.2012 declaring total loss to the tune of Rs.2,89,87,445/- for the A.Y.2012-13. The case was selected for scrutiny. Notices u/s 143(2) & 142(1) of the Act were issued and served upon the assessee. The assessee company was stated to be engaged in the business of Real Estate Development. On appraisal of the balance-sheet, it was observed that the assessee company did huge investment in the Equity Shares/Securities which was capable of generating income and exempted u/s 10 of the I. T. Act, 1961. The assessee had incurred large expenditure on account of interest on borrowed fund amounting to Rs.2,98,96,686/- as well as Rs.1,74,643/- under the head „Other Expenses‟. No expenses was assessed u/s 14A r.w Rule 8D of the Rules. Notice was given and after the reply of the assessee, the AO disallowed a sum of Rs.3,00,49,824/-. The total income of the assessee was assessed to the tune of Rs.10,62,380/-. Feeling 2 A.Y.2012-13 aggrieved, the assessee filed an appeal before the CIT(A) who allowed the claim of the assessee, therefore, the revenue has filed the present appeal before us.
ISSUE NOS. 1 to 4
4. We have heard the argument advanced by the Ld. Representative of the revenue and have gone through the case file carefully. The Ld. Representative of the revenue has argued that the CIT(A) has wrongly deleted the addition in sum of Rs.3,00,49,824/- u/s 14A r.w. Rule 8D of the Rules, therefore, the finding of the CIT(A) is not justifiable, hence, is liable to be set aside. Before going further, we deem it necessary to advert the finding of the CIT(A) on record.:-
“4.2 Ground No.1 and 2 are against the disallowance of Rs.30,049,824/- u/s 14A of the Act read with Rule 8D. During the year under consideration, the appellant had not earned any exempt income. The AO observed that the appellant had incurred interest expenditure in respect of borrowed funds to the tune of Rs.2,98,96,686/- and debited expenses of Rs.1,74,643/- to the Profit and Loss A/c. The AO was of the opinion that the investments made in shares/securities had a potential of earning exempt income in future, hence expense attributable to investment needs to be disallowed. The assessee during the assessment proceedings submitted that section 14A cannot be invoked when no exempt income was earned. The AO rejected the assessee's contention that no expenditure was incurred to maintain the investment portfolio which has the potential to earn exempt income in the future period. Placing reliance on the Bombay High Court decision in the case of M/s Godrej & Boyce Mfg. Co. Ltd, Mumbai, the assessee's plea for no disallowance u/s HA was rejected by the Assessing Officer. The AO invoked provisions of section 14A r.w. Rule 8D and accordingly an amount of Rs.2,98,75,181/- was disallowed under Rule 8D2(ii) and RS.1,74,643/- under Rule 8D2(iii). The total disallowance u/s 14A of the Act worked out to Rs.3,00,49,824/-.
3 A.Y.2012-13 4.3 The appellant has provided elaborate arguments in the submission. The main arguments of the appellant are as follows. "The AO, based on incorrect surmises and wrong apprehension of facts, erred in making the disallowance of Rs. 30,049,824/- u/s 14A A. Disallowance u/s 14A cannot be made in the absence of exempt income i.e. disallowance cannot exceed the exempt income earned by the assessee B. Correctness of the claim of the Appellant - Not refuted by the AO/Dissatisfaction not recorded by the AO: C. Incorrect observations / assumptions of the AO which form the basis of disallowance u/s 14A r.w.r. Rule 8D D). Principle of Res Judicata - Assessee's own case We here-in-below discuss the above arguments in detail: A. Disallowance u/s 14A cannot be made in the absence of exempt income i.e. disallowance cannot exceed the exempt income earned by the assessee 1. From the review of the Profit and Loss Account of the assessee (Page No. 11 of the Paper Book) and also accepted by the AO in Para 4.3 of the assessment order, it is clear that during the year under consideration, no income has been earned by the Appellant which was exempt under Section 10. Since no exempt income has been earned by the Appellant, no disallowance u/s 14A is warranted.
2. The above analogy has got due support by pronouncement of the Hon'ble Supreme Court in the case of Maxopp Investment Ltd. vs. CIT. New Delhi (Civil Appeal No. 104-109 of (2015) (copy enclosed) (Page No. 31 to 72 of the Payer Rook), the Hon’ble Supreme Court came to the following conclusion: “40 In spite of this exercise of apportionment of expenditure carried out by the AO, CIT(A) disallowed the entire deduction of expenditure. That view of the CIT(A) was clearly untenable and rightly set aside by the ITAT."
Correctness of the claim of the appellant- Not refuted by the AO / Dissatisfaction not recorded by AO 4 A.Y.2012-13 In the humble submission of the appellant, ad hoc disallowance, under rule 8D, as computed by the A0 in the instant case was not at all warranted, as the AO neither recorded his dissatisfaction in writing nor found any error in the claim made by the appellant in the submission. The learned AO erred in invoking the provisions of section 14A without recording his dissatisfaction, is a pre-condition to refer to Rule 8D. C. Incorrect observations / assumptions of the AO which form the basis of disallowance u/s 14A r. w. Rule 8D At this juncture, the attention of your Honor is invited to para no. 4.1 at page 2 of the assessment order, wherein the AO formed the belief that the motive of the assessee for doing investment was to earn dividend income. The relevant gist of AO observation is dotted hereunder- D. Principle of Res Judicata - Assessee's own case -It is submitted that your good office in the assessee’s own case for Assessment year 2011-12, your good office had accepted assessee’s contention that no disallowance is called for in absence of any dividend income. 4.4 - The fact that, the assessee was not having any exempt income during the year under consideration is undisputed one. The AO has noted in the assessment order that the assesse has not earned any exempt income from the said investment during the year under consideration. The core issue required to be decided is about the validity of the disallowance under section 14A of the Act, when there was no exempt income during the year. There are catena of decisions wherein it was held that no disallowance u/s. 14A r.w. Rule 8D can be made when the assessee has not earned any exempt income. The decisions include three decisions of Bombay High Court. The said decisions are enumerated below:- 1. In the case of PCIT Vs Rivian International Nit Ltd, of 2015 (2017-TIOL-2575-HC-MUM-IT), the Hon'ble High Court of Bombay has held as tinder: "We have given careful consideration to the submissions. On facts, it appears from the impugned judgment that the assessee had made investment in shares of closely held companies which did not declare any dividend. On facts, there is no dispute that the assessee has not earned 5 A.Y.2012-13 any exempt income during the year under consideration. After consideration of Section HA, the Delhi high Court followed decisions of certain other High Courts Section VIA of the said Act provides that for the purpose of computing the total income, no deduction shall he allowed in respect of expenditure incurred by the assessee in relation to income which does not form part of the total income under the said Act In other words, Section 14A provides that if there is air which does not form a part of the total income under the said Act, the expenditure which is incurred for earning the income is not all deduction. Therefore, during the relevant year, if the assessee has not earned any tax free income, the corresponding expenditure incurred cannot be taken into consideration for disallowance.
4. We respectfully concur with the view taken by the Delhi High Court as the said view can always be taken on fair reading of Section 14A of the said Act. A Division Bench of Allahabad High Court has also taken a similar view in the case of Commissioner of Income Tax v. Shivam Motors (P) Ltd. (supra). Hence, in our view, no fault can be found with the impugned judgment of the Appellate Tribunal whereby disallowance under Section 14A was ordered to be deleted. - 2. Further, in the case of Zee News Ltd. (2018-TIOL-263), the Hon'ble Bombay held as under :- We find that impugned order of the Tribunal has recorded a finding of fact that in the Subject Assessment Year no income in the form of dividend or otherwise was claimed as exempt income by the Respondent - Assessee. The impugned order of the Tribunal placed reliance upon the decisions of Gujarat High Court in the case of CIT Vs Corrtech Energy (P) Ltd. (2014) 223 Taxman 130/45 = 2014-TiOL-661-HC-AHM-lT, and Punjab & Haryana in the case of CIT Vs. Winsome Textile Industries Ltd. (2009)319 FIR 204 (Punjab & Haryana), to hold that no dis- allowance under Section 14.4 can be made in the absence of the Assessee claiming any income to the exempt in the subject Assessment Year.
The aforesaid finding by the Tribunal has been accepted by the Revenue. Therefore, it is not a subject matter of challenge before us. in fact, a similar issue had been raised by the Revenue in the case of Pr. CIT Vs. M/s. Rivian International (P.) Ltd. ITXA No. 693 of2015 decided on 21st November 2017 201 7-TIOL-2575-HC-MUM-IT, where this Court following the decision of the Delhi High Court in the case of CIT 6 A.Y.2012-13 Vs. Holcim India (P.) Ltd. (2015) 57 Taxman.com 28 2014TI0L- I 586- HC-DEL-IT and decision in the case of CIT Vs. Shivam Motors (P.) Ltd. (2015)230 Taxman 0063 2014-TIOL-754-HC-ALL-IT has held that iffor the relevant Assessment Year, Assessee has not earned any tax free income, the corresponding expenditure incurred cannot be taken into consideration for dis-allowance.
In view of the fact that, the Revenue is not challenging the above finding of the Tribunal on the above issue the questions as framed for our consideration by the Revenue become academic. Therefore, none of the question give rise to any substantial questions of law in the context of the present facts."
Same view was taken by the Hon'ble Bombay High Court in the case of POT Vs Ballarpur Industries Ltd (ITA No. 51/2016) (Bombay HC, Nagpur bench). 4.5 Besides, there are many other decisions wherein it was held that disallowance u/s. 14A cannot be made when there is no exempt income. The decisions are listed below: (i) Cheminvest Ltd. v. ITO [2009] 378 ITR 33 (Delhi 11C). (ii) CIT vs Corrtech energy private limited (Tax Appeal No. 239 of 2014) (Gujarat High Court) (iii) CIT Vs Winsome Textile Industries Ltd (319 ITR 204) (P & H) (iv) CIT Vs Holcim India P Ltd (ITA No. 486/2014 & Delhi High Court (v) CIT Vs. Shivam Motors P Ltd (ITA No. 88 of 2014), Allahabad High Court. (vi) PCIT Vs Ballarpur Industries Ltd (ITA No. 51/2016) (Bombay HC, Nagpur bench).
4.6 Further in the appellant own case for A.Y 2011-12, the then CH(A) vide Order No. CIT(A)-8/IT-585/13-14 with respect to identical issue, had granted relief to the appellant.
7 A.Y.2012-13 4.7 The above mentioned view has also been endorsed by the Supreme Court in the case of CIT(Central) 1 v/s Chettinad Logistics Pvt ltd, (2018) 95 taxmann.com 250, in which the SLP filed by the department was rejected on merits on the same issue and by the Supreme Court in the case of Maxopp Investment Ltd. Vs. CIT (91 Taxmann.com 154). 4.8 Respectfully, relying on the aforesaid judicial pronouncements, it is held that the disallowance u/s. 14A r.w. Rule 8D) was not warranted in this case. In the light of the foregoing discussion, disallowance of Rs.3,00,49,824/- u/s.14A is hereby deleted. This ground stands allowed.”
5. Undisputedly, the assessee has no exempt income in this year. The CIT(A) has relied upon the decision of Cheminvest Ltd. Vs. ITO (2009) 378 ITR 33 (Del) and others which has been mentioned in the order. Moreover, we noticed that the case of the assessee has duly been covered by the assessee own case for the A.Y.2011-12 by CIT(A) where there is no exempt income, there should be no disallowance u/s 14A r.w. Rule 8D of the Rule. The CIT(A) has passed the order judiciously and correctly which is not liable to be interfere with at this appellate stage. Accordingly, these issues are decided in favour of the assessee against the revenue.
In the result, the appeal filed by the revenue is hereby dismissed. Order pronounced in the open court on 07/04/2021 (SHAMIM YAHYA) (AMARJIT SINGH) लेखध सदस्य / ACCOUNTANT MEMBER न्यधनिक सदस्य/JUDICIAL MEMBER मुंबई Mumbai; ददनांक Dated : 07/04/2021 Vijay Pal Singh (Sr. PS)