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Income Tax Appellate Tribunal, VIRTUAL COURT
Before: SHRI JUSTICE P P BHATT & SHRI M.BALAGANESH, AM
आदेश / O R D E R PER BENCH:
(AY :2013-14) Assessee appeal:
This appeal in 2506/Mum/2018 for A.Y. 2013-14 arises out of the order by the ld. Commissioner of Income Tax (Appeals)-52, Mumbai in appeal No. CIT(A)-52/IT/DC-CC-4(2)/09/2016-17 dated 05/02/2018 (ld. CIT(A) in short) against the order of assessment passed u/s.143(3) of the Income Tax Act, 1961 (hereinafter referred to as Act) dated 25/02/2016 by the ld. Dy. Commissioner of Income Tax, Central Circle – 4(2), Mumbai (hereinafter referred to as ld. AO).
(AY :2014-15) Assessee appeal:
This appeal in for A.Y.2014-15 arises out of the order by the ld. Commissioner of Income Tax (Appeals)-52, Mumbai in appeal No.CIT(A)-52/IT/DC-CC-4(2)/645/2016-17 dated 05/02/2018 (ld. CIT(A) in short) against the order of assessment passed u/s.143(3) of the Income Tax Act, 1961 (hereinafter referred to as Act) dated 29/11/2016 by the ld. Dy. Commissioner of Income Tax, Central Circle – 4(2), Mumbai (hereinafter referred to as ld. AO).
(AY :2014-15) Revenue appeal:
This appeal in for A.Y.2014-15 arises out of the order by the ld. Commissioner of Income Tax (Appeals)-52, Mumbai in appeal No.CIT(A)-52/IT/DC-CC-4(2)/645/2016-17 dated
Shri Shahrukh Khan 05/02/2018 (ld. CIT(A) in short) against the order of assessment passed u/s.143(3) of the Income Tax Act, 1961 (hereinafter referred to as Act) dated 29/11/2016 by the ld. Dy. Commissioner of Income Tax, Central Circle – 4(2), Mumbai (hereinafter referred to as ld. AO).
Now, let us take up (A.Y.2013-14) Assessee appeal
The first issue to be decided in this appeal is as to whether the ld. CIT(A) was justified in upholding the addition made on account of notional house property income of Rs.43,42,946/- in respect of Signature Villa in UAE owned by the assessee which was kept for self use in the facts and circumstances in the instant case. The interconnected issue involved therein is whether the ld. CIT(A) while upholding the said addition was justified in agreeing with the view of ld. AO to make adhoc increase of 10% over the annual value assessed for the previous assessment year in the facts and circumstances of the instant case.
We have heard rival submissions and perused the materials available on record. We find that assessee is a Cinestar / Actor by profession following cash system of accounting. We find that the ld. AO computed the deemed notional rental income from Palm Signature Villa, Dubai in the sum of Rs.62,04,209/- and after granting statutory deduction under the head ‘income from house property’ u/s.24 of the Act, sought to determine the taxable income from house property in respect of this property at Rs.43,42,946/-. This addition was made by the ld. AO on the basis of similar addition being made for A.Yrs.2010-11, 2011-12 and 2012-13 in assessee’s own case where the additions were confirmed by Shri Shahrukh Khan the first appellate authority and the appeals were pending before this Tribunal at the behest of the assessee at the time of framing of assessment. During the course of assessment proceedings, the assessee vide letter dated 20/01/2016 of its authorized representative submitted that no notional house property income was taxable in India in respect of self-occupied house property in UAE based on Article 6 of the Double Taxation Avoidance Agreement (DTAA) between India and UAE and also interpretation of the relevant clauses of the protocol between two countries. The ld. AO also observed that assessee had suomoto offered an income of Rs.51,27,445/- on account of Dubai Palm Signature Villa property in the return of income filed for A.Y.2011-12 which was later sought to be withdrawn by the assessee during the course of assessment proceedings of A.Y.2011-12 by placing reliance on DTAA between India and UAE. But for earlier assessment year, the request of the assessee was dismissed and income from house property for this property was ultimately taxed by the ld. AO. The ld. AO observed for the year under consideration that the actual value of Palm Signature Villa property at Dubai had been computed based on the fair market value and based upon report of the valuer as submitted by the assessee in earlier years. The same valuation report was used for this year subject to making an increase of 10% over and above the income assessed in earlier assessment year. The ld. AO took the value shown by the assessee for A.Y.2011-12 at Rs.51,27,445/- and applied 10% increase for A.Y.2012-13 thereon which came to Rs.56,40,190/- and further applied 10% increase on Rs.56,40,190/- and arrived at the notional rental income of Rs.62,04,209/- for the year under consideration. The ld. AO however, granted statutory deduction of 30% for repairs u/s.24 and finally arrived at the taxable income of Rs.43,42,946/- under the head income from house property’ in respect of property at Palm Signature Villa, Dubai.
Shri Shahrukh Khan Since, similar addition was confirmed by this Tribunal for A.Yrs. 2009-10 and 2010-11 in assessee’s own case reported in 164 ITD 18, the ld. CIT(A) confirmed the said addition.
3.1. Before us, the ld. AR fairly stated that the issue of addition per se has been decided against the assessee by this Tribunal reported in 164 ITD 18 after taking into account all the contentions raised by the assessee. The ld. AR before us contested only for adoption of 10% increase made by the ld. AO on an adhoc basis from the valuation report submitted by the assessee. The ld. AR argued that the same valuer who had given the valuation report had actually estimated the rental value of the said property at a much lesser figure year on year. While this is so, the ld. AO was not justified in adopting an adhoc increase of 10% on the same. In this regard, he drew our attention to page 26 of the paper book containing valuation report dated 11/08/2011, being the date of valuation, submitted by the assessee before the ld. AO and relied upon by the ld. AO in the assessment proceedings. We find that the said valuation report is enclosed in pages 26-51 of the paper book filed before us. From the perusal of the said valuation report, we find that the valuer had categorically mentioned the suo moto value of the subject mentioned property for different parties as under:-
Period Estimated Rental Value Ranging From 2008 AED 8 Lakhs to 9 Lakhs 2009 AED 7 Lakhs to 8 Lakhs 2010 AED 6 Lakhs to 6.50 Lakhs On the day of inspection i.e. AED 4.50 Lakhs to 5.50 Lakhs
Shri Shahrukh Khan 11/08/2011 3.2. From the aforesaid table, it could be seen that the rental value had been consistently showing a declining trend in respect of subject mentioned property at Palm Signature Villa, Dubai. Hence, we hold that there is absolutely no justification for the ld. AO to adopt an adhoc increase on 10% over and above the value assessed in the previous year. Hence, we direct the ld.AO to determine rental income without making any adhoc increase of 10% for the year under consideration. Accordingly, the ground Nos.1-3 raised by the assessee are partly allowed.
The last issue to be decided in this appeal for A.Y.2013-14 is with regard to disallowance made u/s.14A of the Act r.w.r. 8D of the Rules.
4.1 We have heard rival submissions and perused the materials available on record. We find that assessee had earned exempt income in the sum of Rs.1,42,000/- in the form of dividend. The assessee had made suomoto disallowance of expenses u/s.14A of the Act in the sum of Rs.60,000/- in the return of income. The ld. AO however, on perusal of the balance sheet and profit and loss account of the assessee observed that the assessee has been maintaining office premises, staff etc., for which he has been debiting expenses in the nature of office rent, salary, depreciation and various other infrastructure expenses etc., which would obviously be utilized for the purpose of making investments earning exempt income. Accordingly, the ld. AO held that the entire expenses debited by the assessee in his profit and loss account cannot be conclusively considered for the purpose of earning his professional income alone and certainly some part of it should be made attributable for the Shri Shahrukh Khan purpose of investment activity of the assessee and since the same cannot be clearly identified, the computation mechanism provided in Rule 8D of the Rules need to be applied in the instant case. Accordingly, the ld. AO also observed that the disallowance voluntarily made by the assessee u/s.14A of the Act in the sum of Rs.60,000/- was only made on a suomoto basis which is without any rationale and which is not supported by any workings thereon. Accordingly, the ld. AO proceeded to make disallowance by applying the third limb of Rule 8D(2) and arrived at the disallowance figure of Rs.66,03,681/-. The ld. AO while making this disallowance did not even reduce amount already disallowed by the assessee in the sum of Rs.60,000/-.
4.2. The ld. CIT(A) by following the decision of Special Bench decision of Delhi Tribunal in the case of Vireet Investments vs. ACIT reported in 165 ITD 27 directed the ld. AO to recomputed the disallowance u/s.14A of the Act r.w.r. 8D(2)(iii) of the Rules by considering only those investments which had actually yielded exempt income and from such arrived figure allow set off of Rs.50,000 suomoto disallowance already made by the assessee.
Aggrieved by this action, the assessee is in appeal before us.
We find that the ld. AR vehemently argued that there is no objective satisfaction recorded by the ld. AO as to why the disallowance made by the assessee is incorrect and as to why the provisions of Rule 8D(2) of the Rules would come into operation. He also placed reliance on the decision of the Hon’ble Apex Court in the case of Godrej & Boyce Manufacturing Company Limited reported in 394 ITR 449 among other decisions. In this regard, we find that the ld. AO had specifically gone into
Shri Shahrukh Khan the various expenditure heads that were debited in the profit and loss account and had arrived at an objective satisfaction that the various expenses thereon are common in nature and assessee though had debited certain expenditure in the profit and loss account and also had not debited any expenditure in its capital account to be attributable for the purpose of investments, the expenditure debited thereon becomes indivisible in nature and accordingly, in order to fulfil the intention behind introduction of provisions of Section 14A of the Act, the computation mechanism of Rule 8D(2) of the Rules would automatically come into operation. We find lot of force in the said argument of the ld. DR before us. From the perusal of the capital account of the assessee enclosed in page 11 of the paper book, we find no expenses attributable to investment activity have been debited by the assessee. Hence, the expenditure totally reflected in the financial statements of the assessee becomes indivisible in nature.
6.1. Moreover, the assessee having disallowed Rs.60,000/- voluntarily in the return of income had not provided any workings for the same as to how such disallowance figure was arrived at by him. In this scenario, it would be just and fair to apply the computation mechanism provided in Rule 8D(2) of the Rules keeping in mind the true intention behind introduction of provisions of Section 14A of the Act. We also find that the decision relied upon by the ld. AR on the Hon’ble Apex Court in the case of Godrej & Boyce Manufacturing Company Ltd., reported in 394 ITR 449 does not come to the rescue of the assessee in the instant case as the ld. AO had indeed recorded objective satisfaction having regard to the accounts of the assessee. We find that the ld. CIT(A) had directed the ld. AO to consider only those investments which had actually yielded exempt income for the purpose of working out the disallowance u/s.14A of the Shri Shahrukh Khan Act r.w.r. 8D(2)(iii) of the rules. This is in consonance with the Special Bench Delhi Tribunal in the case of Vireet Investments reported in 165 ITD 27. We are in complete agreement with such direction of the ld. CIT(A). We further direct the ld. AO that in any case, the disallowance made u/s.14A of the Act cannot exceed the exempt income earned by the assessee. From the disallowance so computed as per the aforesaid directions, needless to mention that voluntarily disallowance made by the assessee in the sum of Rs.60,000/- is to be reduced by the ld. AO. Accordingly, the ground Nos. 4 & 5 raised by the assessee are partly allowed.
The ground No.6 raised by the assessee is general in nature and does not require any specific adjudication.
In the result, appeal of the assessee for A.Y.2013-14 in is partly allowed.
Now let us take up (A.Y.2014-15) Assessee Appeal
The ground Nos.1-3 raised by the assessee for this year are exactly identical with ground Nos.1-3 raised by the assessee for A.Y.2013-14. The decision rendered for A.Y.2013-14 would apply with equal force for this assessment year also except with variance in figures.
The ground Nos. 4 & 5 raised by the assessee for this assessment year are exactly similar to that raised by the assessee for A.Y.2013-14 and the decision rendered for A.Y.2013-14 would apply with equal force for this assessment year also except with variance in figures.
Shri Shahrukh Khan
The ground No.6 raised by the assessee is general in nature and does not require any specific adjudication.
In the result appeal of the assessee for A.Y.2014-15 in is partly allowed.
Now let us take up (A.Y.2014-15) Revenue Appeal
The decision rendered in assessee’s appeal for A.Y.2014-15 in ground Nos. 4 & 5 have already considered the issue raised in the ground of the revenue. Hence, the decision which is rendered in assessee appeal would apply with equal force for the grounds raised in revenue appeal for A.Y.2014-15 also.
In the result appeal of the revenue is dismissed.
Shri Shahrukh Khan
TO SUM UP:- Sr. No. ITA No. A.Y. Appeal By Result 1. 2013-14 Assessee Partly Allowed 2. 2014-15 Assessee Partly Allowed 3. ITA No.2983/Mum/2018 2014-15 Revenue Dismissed
Order pronounced on 11/12/2020 by way of proper mentioning in notice board.