DCIT 8(3)(2), MUMBAI vs. VOLTAS LTD, MUMBAI

Since issues are common and the appeals were heard together these are being consolidated and disposed of by this common order.

One common issue raised in these appeals relate to the direction of learned CIT(A) to not consider the asset which did not yield income for computation of average value of investment under Section 14A of the

Upon assessee’s appeal learned CIT(A) held that the Assessing Officer is to follow applicable portion in decision in paragraph 6 of appellate order for A.Y. 2012-13 dated 5.9.2018. This learned Counsel of the assessee has contended that learned CIT(A) has disallowed 0.5% of average investment excluding investment which did not earn taxable income.

We have heard both the counsel and perused the records. The learned counsel for the assessee submitted that identical issue was decided by the Tribunal in assessee's own case for the earlier assessment year. He submitted that Tribunal in the said decision had remitted the matter to the file of Assessing Officer. Per contra, the learned Departmental Representative did not dispute the proposition that same issue was considered by the Tribunal.

We note that in earlier year, ITAT in assessee's own case for assessment year 2010-11 & 2011-12 has noted that in the earlier order Tribunal has directed the Assessing Officer to examine the sufficiency or correctness of allowance made by the assessee having regard to assessee's accounts and explanations. The Tribunal had further noted that to maintain the consistency, the matter was being remitted to the file of Assessing Officer with same direction. The Tribunal also directed to take into account the order of Tribunal Special Bench in the case of ACIT vs. Vireet Investments (P) Ltd. Here we also make it

Accordingly, we find on the same issue, the Tribunal in assessee's own case, has remitted the matter to the file of Assessing Officer and also directed to take into account the decision of Special Bench of Tribunal as aforesaid. Following the aforesaid precedent, we also remand this issue to the file of Assessing Officer with same direction.

Another common issue raised in Revenue's appeal relates to correctness of learned CIT(A)'s order deleting interest charged of Rs. 1,93,36,127/- for A.Y. 2013-14 and Rs. 2,03,76,227/- for A.Y. 2014-15 on the share application money given by the assessee to the Associated Enterprise by the Transfer Pricing Officer (TPO).

Brief facts on this issue as that after the Assessing Officer made the disallowance as per TPO order. Upon assessee’s appeal learned CIT(A) held as under :-

We note that this issue is also covered by the ITAT order in assessee's own case for assessment year 2010-11 & 2011-12. With respect to the same amount given to the Associated Enterprise, which were in shape of share application money, the Assessing Officer has applied interest on the amount advanced treating it as share application money. This was deleted by the learned CIT(A). On cross-appeal by the assessee and Revenue, Tribunal had held that the undisputed position that emerges is the fact that assessee has advanced share application money to one of its Associated Enterprise to acquire further stake in that entity. That the Associated Enterprise has become wholly- owned subsidiary of the assessee-company during the month of January, 2009. That the financial health of the Associated Enterprise was not good and the money was advanced in view to infuse further capital in the Associated Enterprise with a view to acquire controlling stake. The money was utilised by the Associated Enterprise for the purpose of business and to meet working capital requirement. The Tribunal further noted that ultimately the shares have been allotted to the assessee during December, 2015 after getting the desired regulatory approvals. The Tribunal accepted that the delay was genuine and was substantiated. In these facts, ITAT agreed with the view that the amount cannot be treated as loan transaction. In this regard, the Tribunal also referred to the decisions of Hon'ble Bombay High Court in the case of Pr. CIT vs Aegis Ltd. It also referred to the decision of Madras Bench of

We find that since on the same transaction during the current assessment year, TPO has made an adjustment as referred above. The learned CIT(A) has correctly deleted the same by noting that on the same transaction of share application money to the Associated Enterprise, on which interest was charged, the Tribunal had deleted the addition. In these circumstances, in our considered opinion, there is no infirmity in the order of learned CIT(A). Hence, we uphold the same.

Before parting we may add that as evident from the above the order of the learned CIT(A) is extremely cryptic and a non-speaking order. It is settled law that even administrative orders also have to the consistent, the principles of natural justice. This mandates a proper and speaking order, which learned CIT(A) has miserably failed to effectuate.

Another common issue raised in assessee's appeal relates to interest on outstanding amount to the Associated Enterprise. At the outset, in this regard the learned counsel for the assessee contended that he shall not be pressing the ground raised in this regard.

Accordingly, we dismiss this ground raised as not pressed.

Another common issue raised relates to transfer pricing adjustment on commission on corporate guarantee.

The Assessing Officer in this case has noted that the assessee has extended corporate guarantee with bank in the UAE on behalf of the its Associated Enterprises. Since the assessee had not charged any fees in this regard the Assessing Officer proceed to refer to the normal guarantee fees charged by the bankers and adopted rate of 1.5%.

Upon assessee’s appeal learned CIT(A) for A.Y. 2013-14 deleted the addition holding that no transfer pricing adjustment was required as the assessee has not charged any guarantee fees from its associated enterprises and hence, he held that the corporate guarantee is not bank guarantee. Learned CIT(A) for A.Y. 2014-15 noted that there has been change in legal proposition in this regard. He adopted rate of 0.5% by placing reliance upon the Hon'ble Bombay decision in the case of CIT Vs. Everest Kento Cylinders Ltd. (58 taxmann.com 254). Learned CIT(A) on this issue observed as under :- “On transfer pricing adjustment on corporate guarantee raised in ground 1.3, in earlier AY, I had allowed the ground. However, there are new legal developments. They include:

We have heard both the counsel and perused the records. Learned Counsel of the assessee started with the plea that this is outside the ambit of transfer pricing adjustment. But he also referred to the decision of Hon'ble Bombay High Court for the proposition that Hon'ble Bombay High Court wherein it had upheld rate of 0.20% adopted by the ITAT.

Per contra learned Departmental Representative relied upon the decision of Hon'ble Bombay High Court in the case of CIT Vs. Everest Kento Cylinders Ltd.(supra).

Upon careful consideration, we note that the transfer pricing adjustment for corporate guarantee fees is no more an issue which is res integra. Adjustment for corporate guarantee fees has been upheld by Hon'ble Bombay High Court. We find that the view taken by learned CIT(A) is in consonance with the decision of Hon'ble Bombay High Court in the case of Everest Kento Cylinders (supra). The same has been followed by ITAT in several decisions. Hence we direct that guarantee fees should 0.5%.

Another common issue in Revenue’s appeal relates to disallowance u/s. 43B.

Brief facts of the case are that the assessee had deposited employees’ contribution to ESIC within the permissible grace period and before the due date of filing of return for the present assessment year. The Assessing Officer held that as the payments were made after the due date the same should be disallowed u/s. 36(1)(va) of the IT Act. Learned CIT(A) had deleted this addition holding that as the payments get

Against this order the Revenue is in appeal before us.

Upon hearing both the counsel and perusing the record, we find that this issue is covered in favour of the assessee by the following :-

The assessee has also filed additional ground. The ground relates to disallowance of education cess and secondary and higher education cess u/s. 40(a)(ii) of the I.T. Act.

We admit this additional ground on the touchstone of Hon'ble Supreme Court decision in the case of National Thermal Power Co. Ltd. vs Commissioner Of Income (1998) 229 ITR 383. Learned Counsel of the assessee submits that this issue is covered in favour of the assessee by the decision of Hon'ble Bombay High Court in the case of Sesa Goa Ltd. Vs. JCIT (Income Tax Appeal No. 17 & 18 of 2013), wherein Hon'ble High Court has held that disallowance of education cess and secondary and higher education cess u/s. 40(a)(ii) of the Act is not permissible.

Per contra, learned Departmental Representative could not dispute this proposition.

Accordingly, following the aforesaid Hon'ble Supreme Court decision, we allow additional ground raised by the assessee in this regard and direct that disallowance of education cess and secondary and higher education cess is to be deleted.

Another additional ground raised for A.Y. 2013-14 relates to capital gain on sale of buildings.

On this issue brief facts of the case pertain to the tax rate applicable on the capital gain on sale of buildings. The assessee’s plea is that the same should be taxed @ 21.63%u/s. 112 of the I.T. Act instead of 32.45% as the said buildings were held for more than three years. The assessee’s plea is that this issue stands covered in favour of the assessee by the decision of ITAT, Mumbai in the case of M/s. Smita Conductors Ltd. Vs. DCIT (ITA No. 4004 of 2011 vide order dated 17.9.2013).

Per contra, learned Departmental Representative submitted that gain on depreciable assets is to be dealt with by the provisions of section 50 of the I.T. Act. He submitted that the said section being special provision for computation of capital gains in case of depreciable assets in the concluding paragraph specifically states that the income received or arising as a result of such transfer shall be deemed to be capital gain arising from short term capital asset. Learned Departmental Representative submitted that the language of the Act is very clear. The Act provides in no cencertain terms that such gains shall be deemed to be capital gain arising from the transfer of the short term capital asset. He submitted that there would have been scope of ambiguity only if the word ‘short term’ was not used. He submitted that when the Act provides that such gain would be capital gain arising from short term capital asset there is no reason why term ‘short term’ used there should treated

In rejoinder learned Counsel of the assessee placed reliance upon the decision of Hon'ble Bombay High Court in the case of CIT Vs. V.S. Dempo Company Ltd. (387 ITR 354) and decision of Hon'ble Supreme Court in the case of CIT Vs. M/s. Manali Investment (ITA No. 1658 of 2012). He submitted that both Courts have considered this issue and have found that deeming provision of this section cannot be extended beyond the method of computation of cost of acquisition involved.

We have considered the submissions and we may gainfully referred to provisions of section 50 of the I.T. Act :- Special provision for computation of capital gains in case of depreciable assets. 50. Notwithstanding anything contained in clause (42A) of section 2, where the capital asset is an asset forming part of a block of assets in respect of which depreciation has been allowed under this Act or under the Indian Income-tax Act, 1922 (11 of 1922), the provisions of sections 48 and 49 shall be subject to the following modifications :— (1) where the full value of the consideration received or accruing as a result of the transfer of the asset together with the full value of such consideration received or accruing as a result of the transfer of any other capital asset falling within the block of the assets during the previous year, exceeds the aggregate of the following amounts, namely :— (i) expenditure incurred wholly and exclusively in connection with such transfer or transfers; (ii) the written down value of the block of assets at the beginning of the previous year; and (iii) the actual cost of any asset falling within the block of assets acquired during the previous year, such excess shall be deemed to be the capital gains arising from the transfer of short-term capital assets; (2) where any block of assets ceases to exist as such, for the reason that all the assets in that block are transferred during the previous year, the cost of acquisition of the block of assets shall be the written down value of the block of assets at the beginning of the previous year, as increased by the actual cost of any asset falling within that block of assets, acquired by the assessee during the previous year and the income received or accruing as a

In this regard we may also refer to the decision of Hon'ble Bombay High Court and Hon'ble Supreme Court decision relied upon in this regard by learned Counsel of the assessee.  CIT Vs. V.S. Dempo Company Ltd. (387 ITR 354)  CIT Vs. M/s. Manali Investment (ITA No. 1658 of 2012).

In the case of V.S. Dempo Company Ltd. (supra) the facts were that in the return filed by the respondent/assessee for the Assessment Year 1989-90 the assessee had disclosed that it had sold its loading platform M.V. Priyadarshni for a sum of Rs. 1,37,25,000/- on which it had earned some capital gains. On the said capital gains the assessee had also claimed that it was entitled for exemption under Section 54E of the Income Tax Act. Admittedly, the asset was purchased in the year 1972 and sold sometime in the year 1989. Thus, the asset is almost 17 years old. Going by the definition of long term capital asset contained in Section 2 (29B) of the Income Tax Act, 1995 (hereinafter referred to as 'the Act'), it was admittedly a long-term capital asset. Further the Assessing Officer rejected the claim for exemption under Section 54E of the Act on the ground that the assessee had claimed depreciation on this asset and, therefore, provisions of Section 50 were applicable. Though this was upheld by the learned Commission of Income Tax (Aappeals), the Income Tax Appellate Tribunal allowed the appeal of the assessee herein holding that the assessee shall be entitled for exemption under Section 54E of the Act. The High Court has confirmed the view of the Commissioner of Income Tax (Appeals) and dismissed the appeal of the Revenue. While doing so the High Court has relied upon its own judgment in the case of ‘The Commissioner of Income-tax, Mumbai City-II, Mumbai vs. ACE Builders Pvt. Ltd.’ [(2005) 3 Bom CR 598]. The High Court has observed that Section 50 of the Income Tax Act which is a special provision for computing the capital gains in the case of depreciable assets is not only restricted for the purposes of Section 48 or Section 49 of the Act as specifically stated therein

We may gainfully refer to the decision of Hon'ble Supreme Court in the case of CIT Vs. M/s. Manali Investment (ITA no. 1658 of 2012) in which Hon'ble Supreme Court has held as under :-

Upon careful consideration we find that Hon'ble Higher Courts as above have held that deeming fiction of section 50 is limited and cannot be extended beyond method of computation of the gain. That the distinction between short term and long term capital gain is not obliterated by this section. Hence, we respectfully follow the same and reject this submission of learned Departmental Representative. This additional ground is allowed and the Assessing Officer is directed to reexamine the detailed facts and allow as per the ratio of above said decisions as discussed above.

In the result, these appeals are partly allowed. Order pronounced under Rule 34(4) of the ITAT Rules on 6.10.2020.