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Income Tax Appellate Tribunal, MUMBAI BENCH “J”, MUMBAI
Before: SHRI SHAMIM YAHYA & SHRI PAWAN SINGH
PER SHAMIM YAHYA, ACCOUNTANT MEMBER
These are appeals filed by the assessee against the respective orders of learned CIT(A) pertaining to concerned assessment years. Since the issues are connected, the appeals are consolidated and heard together and disposed off by this common order for the sake of convenience.
One issue raised in the appeals for assessment years 2009-10 and 2010- 11 relate to addition made u/s. 115JB of the Act on account of provision for 2 3364/M/14 & 3908/M/16 Nhava Sheva International Container Terminal Pvt. Ltd. contingency. Since the facts are common, we are referring to the facts and figures from assessment year 2009-10. The Assessing Officer, on this issue, noted that assessee has shown provision for contingencies of Rs.11,35,56,000/-, which is the cumulative balance upto 31.03.2009. The increase in this year to such provision was of Rs.1,61,30,000/-. The Assessing Officer was of the opinion that the same is contingent liability and added the same to the book profit u/s 115JB of the Act. Upon assessee’s appeal, the learned CIT(A) by referring to his own order for assessment year 2008-09 dismissed the issue raised by the assessee. Against this order, assessee is in appeal before us.
We have heard both the counsels and perused the records. We find that an identical issue was considered by this Tribunal in assessee’s own case for assessment year 2008-09. We find that vide order dated 28.09.2018, this Tribunal has dealt with the issue as under :-
“19. On this issue, the A.O. noted that the assessee has made a provision for disputed claim amounting to Rs.1,35,60,000/-. The amount in question was a provision for the sum towards security charges payable to Jawaharlal Nehru Port Trust as per the concession agreement. The A.O. was not satisfied with the assessee’s response. He was of the opinion that the claims were in the nature of dispute and were not ascertainable as to whether the actual amount came could be spent. Hence, he added back the same holding them to be contingent in nature. Before the ld. CIT(A), the assessee’s submissions were as under:
That during the year under consideration, the Appellant had made (provision of Rs 13,560,000 towards security charges payable to Jawaharlal Nehru Port Trust ('JNPT’) as per the Concession agreement ('the Agreement'). Such provision is characterised as 'provision for disputed claims' under the head provisions in the audited financial statements for the year ended 31 March 2008.
3 3364/M/14 & 3908/M/16 Nhava Sheva International Container Terminal Pvt. Ltd. ii. That as per the terms of the Agreement, the Appellant should abide by the security regulations / procedures as stipulated by JNPT from time to time. The deployment of Central Industrial Security Force ('CISF') staff was compulsory at the port premises and services of the CISF staff should be shared facility between JNPT and the Appellant. The appellant had to bear expenditure of deployment of CISF staff at the container terminal to the extent of forty percent of the actual relevant expenses incurred by JNPT. iii. That JNPT had invoiced certain amounts in respect of above mentioned security charges in the past years. Appellant had made a provision for security charges in the year under consideration on the basis of the invoices received in the past years. However, this ascertained liability was not discharged pending receipt of original invoices along with the copies of supporting documents from JNPT. It had accepted the liability and accordingly provided for the same in the books of account, however the same would be discharged on receipt of original invoices along with the copies of supporting documents from JNPT. In view of the above facts appellant submitted that the provision pertains to an ascertained liability which would be discharged in subsequent years on receipt of the original invoices alongwith the copies of supporting documents.
Thereafter, the assessee also placed reliance upon the several case laws. However, the ld. CIT(A) was not satisfied. He noted that the assessee has submitted that such claims was in respect of past years. He noted that the A.O. has mentioned that assessee had accepted the claim but it is still mentioned in the books of account as the provision of the disputed claims. He also noted that even during the instant proceedings, it has not been mentioned as to what eventually happened to such provision. The ld. CIT(A) upheld the action of the A.O.
Against the above order, the assessee is in appeal before us.
We have heard both the counsel and perused the records. We find that it is settled law that it is the substance that counts and not the nomenclature given to it. In the present case, the assessee has received invoices from JNPT
4 3364/M/14 & 3908/M/16 Nhava Sheva International Container Terminal Pvt. Ltd. toward security charges. These were on account of deployment of CISF Personal. The payment for which was compulsory. The assessee accepted the liability but awaiting supporting documents made the debit in the name of disputed liability. As mentioned above, the name given by the parities is not determinative of the character of the transaction but it is the substance that counts.
In this regard, the case law referred in preceding issue from Hon’ble Apex Court and Hon'ble Bombay High Court is germane. However, we also note that the ld. CIT(A) has noted that what was the ultimate fate of the liability has not been submitted before him. Even before us, the ld. Counsel of the assessee has not given details of the present position of this liability. In our considered opinion this aspect is crucial for proper adjudication of this issue. Hence, we remit this issue to the file of the A.O. to consider the issue afresh after ascertaining the present fate of the liability.”
4. Now, by referring to the aforesaid order of the Tribunal, it is contended by the learned counsel of the assessee that the Tribunal in the aforesaid order had remitted the issue for examination to the Assessing Officer after considering the Hon'ble Bombay High Court and Hon'ble Supreme Court decisions referred therein. However, the learned counsel contends that now it is no longer a contingent liability as it has been established that it is ascertained as assessee had to pay more than the provision. Upon careful consideration, we find that if finally assessee has been called upon to pay more than the amount provided for the concerned period, the same cannot be said to be unascertained liability. Hence, we direct that if against the same liability, which has been held to be unascertained, subsequently assessee has paid the amount, the same cannot be said to be provision for unascertained liability. The Assessing Officer shall examine the subsequent payment and decide as per our observation as above.
5. Apropos issue of deduction u/s 80IA of the Act for other income. This issue relates to denial of deduction u/s 80IA of the Act for other income as under :-
Assess- Particulars of other income (Amount in Rs.) Rent Scrap Interest Miscella- Exchange Serves Total ment recovery sales and income neous gain from Year sundry income India revenue script 2009-10 722000 2796324 131717000 - - - 135235324 2010-11 840183 - 236298347 5653956 80832554 - 323625040 2011-12 502951 - 255868020 6259000 15206000 49000000 326835971
6. We find that an identical issue was considered by the Tribunal in assessee’s own case for assessment year 2008-09 referred above. The Tribunal had adjudicated the issue as under :-
“24. This issue relates to the disallowance of deduction u/s. 80-IA in respect of the following income :
Particulars of other income Amount (in. Rs.) Rent recovery 4,95,000 Sundry revenue 4,411,000 Interest income 58,154,000 Total 60,536,836
At the outset, the ld. Counsel of the assessee submitted that he shall not be pressing for the disallowance on account of a rent recovered and sundry revenue. Hence, these grounds are dismissed as not pressed. However, as regards the claim of the interest income, the following u/s. 80IA, the ld. Counsel of the assessee placed reliance upon the recent decision of the Hon'ble jurisdictional High Court in the case of M/s. Tema Exchangers Manufactures Pvt. Ltd. vs The Asst. CIT (in of 2004 vide order dated 18.07.2018), wherein the question was as under :
(a) On the facts and in the circumstances of the case, whether the Income tax Appellate Tribunal was right in law in reversing the order of 6 3364/M/14 & 3908/M/16 Nhava Sheva International Container Terminal Pvt. Ltd. the CIT(A) and restoring that of the Respondent No.1 and thereby denying the appellant the benefit of Section 80IA of the I.T. Act, in respect of interest income of Rs.6,69,573/- ?
The Hon'ble jurisdictional High Court has decided the issue in favour of the assessee by holding as under :
3. The deduction under both the aforesaid heads under Section 80IA of the Act was disallowed by the impugned order of the Tribunal. It followed the decision of the Apex Court in Commissioner of Income Tax Vs. Pandian Chemicals Ltd. 318 ITR 420 which has held that the words 'derived from' means something which has direct and immediate nexus with the industrial undertaking. Thus, the claim for deduction on the above heads was disallowed under Section 80IA of the Act.
4. Mr. Subramaniam, learned Counsel appearing in support of the appeal points out that Pandian Chemicals Ltd. (supra) was rendered in the context of Section 80HH of the Act and we are concerned with Section 80IA of the Act. It is particularly pointed out that there is a difference in the wording of the two sections as existing during the previous year relevant to the subject assessment year. Section 80HH of the Act grants deduction in respect of the profits and gains derived from industrial undertaking while Section 80IA of the Act as in force at the relevant time grants deduction of profits and gains derived from any business of an industrial undertaking. It is submitted that the above issue is no longer res integra as the issue stand concluded in its favour by the decision of this Court in Commissioner of Income Tax Vs. Jagdishprasad M. Joshi, 318 ITR 420.
We find that this Court in Jagdishprasad M. Joshi (supra), the question which was posed for our consideration was as under :
“Whether on the facts and in the circumstances of the case and in law, the Tribunal was right in allowing the appeal of the assessee holding that the interest income earned by the assessee on fixed deposits with the bank and other interest income are eligible for deduction under Section 80IA of the Income Tax Act, 1961?”
7 3364/M/14 & 3908/M/16 Nhava Sheva International Container Terminal Pvt. Ltd.
This Court answered the question in the affirmative while dismissing the Revenue's appeal. This by holding that income earned by the assessee on the fixed deposit from the bank has to be extended deductions under Section 80IA of the Act. In support of the above, this Court relied upon the decision of the Delhi High Court in Commissioner of Income Tax Vs. Eltek SGS P. Ltd., 300 ITR 06 wherein the difference in the language employed in Sections 80IB and 80HH of the Act was brought out i.e. “profits and gains derived from industrial undertakings” as found in Section 80HH of the Act with “profits and gains derived from any business of an industrial undertakings”. In view of the difference in language of the two Sections, this Court held that interest on fixed deposits in the bank would be profits and gains derived from any business of an industrial undertaking. The same reasoning would apply to extend deductions under Section 80IA of the Act for the compensation received for non supply of spare parts. Thus, the issue stands concluded in favour of the appellant assessee by the decision of this Court in Jagdishprasad M. Joshi (supra).
7. Mr. Tejveer Singh, learned Counsel for the Revenue is unable to points out why the aforesaid decision in the case of Jagdishprasad M. Joshi (supra) would not apply to the present facts.
8. In the above view, both the questions of law are answered in the negative i.e. in favour of the appellant assessee and against the respondent Revenue.
Accordingly, the appeal is allowed.”
Per contra, the ld. Departmental Representative submitted that the interest income cannot qualify for deduction u/s. 80IA. For this, he referred to the decision of the Hon'ble Apex Court in the case of Liberty India vs. CIT [2009] 317 ITR 218 (SC) vide order dated 31.08.2009 and CIT vs. Dilip Kumar vide order dated 30.07.2018.
Upon careful consideration, we find that since in the recent decision, the Hon'ble jurisdictional High Court has decided the issue in favour of the assessee following the judicial precedent, we uphold the order of the ld. CIT(A).”
7. We note that in the above order, the Tribunal has upheld assessee’s case that interest income will qualify for deduction u/s 80IA of the Act on the touchstone of jurisdictional High Court decision referred above. Hence, on the same precedence, the claim of assessee of interest income qualifying for deduction u/s 80IA of the Act is upheld. Now, we come to the issue of various other items which assessee claims to qualify for deduction u/s 80IA of the Act. i) Rent recovery - On this issue, we note that the learned CIT(A) in his order for assessment year 2009-10 has dealt with the issue as under:-
“i. In respect of the rent recovery, it is seen that the rent has been earned by the assessee from renting out (sub-letting) portion of the space available to it at the port to its contractors. It is not the case that the appellant has kept its own staff for the conduct of its business and incidently has eraned rent. Further it is not mentioned in the facts or the submission that these contractors have exclusively given their services to the appellant itself. Accordingly under such facts of the case the receipt of rent by the appellant cannot be considered to be in the nature of icome dervied from industrial undertaking and hence does not qualify for deduction u/s 80-IA.” ii) The issue of sale of scrap and sundry revenue qualifying for deduction under Section 80IA of the Act has been dealt by the learned CIT(A) as under :-
“ii. As far as income from sale of scrap and sundry revenue is concerned, it is mentioned that the appellant is not into the manufacturing activity. It is in the business of actvities of managing, developing and maintaining the infrastructural facilities of the port. The items of burnt oil, empty barrel, used filter, used spare and sludge oil are the items which would be the discards of the users of the port and ships. Such discards are to cleaned or appropriately dumped. The appellant in the process of maitaining the the infrastructural facilities, sells such discards and has eaned this income from so called scale of scrap and sundry revenue.”
The learned CIT(A) has held that the above do no qualify for deduction under Section 80IA of the Act. In this regard, learned CIT(A) has placed reliance upon the decision of the Hon'ble Apex Court in the case of Liberty India vs. CIT, 317 ITR 218 (SC) wherein it has been held by the Hon'ble Apex Court that Sections 80I, 80IA and 80IB of the Act are to be read as having common scheme for eligibility of deduction under Section 80IB of the Act. The profit must be derived from an industrial undertaking. Placing reliance upon the above, the learned CIT(A) held that these items do not qualify for deduction under Section 80IA of the Act as they cannot be considered to be in the nature of income derived from industrial undertaking. The learned CIT(A) noted that as per the Hon'ble Apex Court decision in Liberty India (supra), the receipt beyond the first degree cannot be considered and these receipts since were beyond the first degree, were held to be not qualifying for deduction under Section 80IA of the Act. As regards the issue of deduction under Section 80IA of the Act on foreign exchange gains, we note that the learned CIT(A) for assessment year 2010-11 has dealt with the issue as under :-
“vi. As regards to the deduction claimed u/s. 80IA on foreign exchange gain, it was explained that the same has arisen from reinstatement of management consultancy fees payable to DP World FZE for the services rendered by them to the company and also from reinstatement of balance foreign currency term loan which was taken in AY 2006-07 for the business purposes. Except for this, no details regarding the same and how it is derived from business of the assesse company have been produced. Accordingly, it is not proved by the appellant as to how the income out of such foreign exchange gain is derived from its business. Further reliance is place on the judgement of Hon'ble ITAT in the case of Qualconm India 37 taxmann.com 17 and the judgement by Hon'ble Bombay High Court in the case of Shah Originals 199 taxmann.com 81. In view of the facts of the case For assessment year 2011-12, this claim was rejected by the learned CIT(A) by referring to the decision of Hon'ble Apex Court in the case of Liberty India (supra) and also referring to the decision of Hon'ble Apex Court in the case of CIT vs Sterling Foods, 237 ITR 579 (SC) and Pandian Chemicals Ltd. vs CIT, 262 ITR 278 (SC).
Against the above, assessee is in appeal before us. We have heard both the counsels and perused the records. The learned counsel of the assessee reiterated his claim that the above income should qualify for deduction under Section 80IB of the Act. As regards the issue of foreign exchange fluctuation income, the learned counsel of assessee submitted that the details were not available.
9. Upon careful consideration, we find that the learned CIT(A)’s finding is cogent that these receipts cannot be said to be profit derived from the industrial undertaking. They are admittedly beyond the first degree and the decision of Hon'ble Apex Court in Liberty India (supra) is squarely applicable. Since this issue is decided on the basis of applicable Hon’ble Supreme Court decision, dealing with other decisions is not relevant. Moreover, as regards the issue of foreign exchange gain is concerned, the learned CIT(A) has given a finding that no detail regarding the same was furnished before him. Before us also, the learned counsel of the assessee has shown his inability and submitted that details are not available. In these circumstances, in our considered opinion, there is no infirmity in the order of learned CIT(A). Hence, we uphold the same.
Apropos transfer pricing issue; the common issue raised is with regard to the proportionate adjustment sustained under Section 92C of the Act with respect to the arm’s length price of technical services made to the associated enterprise. Since the facts are identical, we are referring to figures from assessment year 2009-10.
On this issue, the Assessing Officer observed that it was seen from the audit report filed by the assessee in terms of Section 92CEB of the Act that during the year the assessee had paid fees for technical services amounting to Rs.3,52,38,530/- to the associated enterprise in Australia. The assessee had agreement with its associated enterprise for receiving various services. To ascertain the arm’s length price for payment to associated enterprise, the assessee was asked by the Assessing Officer to provide number of services on which the fees has been paid and the number of heads on which services are received. The assessee explained that the number of heads under which services were receivable was six, but actually the assessee receives services under three heads. The Assessing Officer disallowed 50% of the amount payable to associated enterprise which worked out to Rs.1,76,19,265/-.
Upon assessee’s appeal, learned CIT(A) noted that identical issue had come up for his consideration in assessee’s own case for assessment year 2008-09 which was decided as under :-
“i. The observations made by the AO in his order regarding receipt of service remain the same even before me as no fresh details documents etc. either evidencing receipt of additional services or its benefit has been submitted. The submissions of the appellant in respect of the services remain the same as that before the AO. ii. Further, it is the fact of the case and not disputed by the appellant that similar had been the position of the facts in the earlier years where the appellant’s own case for A.Y 2003-04 & 2004-05 were decided by the CIT(A) in the office and for A.Y. 2007-08 by me and such decision for A.Y. 2003-04 has been confirmed by the Hon'ble ITAT. It is further mentioned that the appellant’s ARs during the course of the proceedings stated that such decision of the Hon'ble ITAT has not been further contested by the appellant and as such there is no decision in the case of the appellant of Hon'ble High Court. iii. It was submitted during the course of the appellate proceedings that the facts in the year under consideration are similar to the case decided for A.Y. 2003-04, A.Y. 2004-05. Further appellant itself on without prejudice has sought relief as has been given to it in earlier assessment years 2003-04/2004-05. Under such set of facts and keeping the principles of judicial consistency and judicial discipline, it is directed that the arm’s length price of the said transaction of technical service fees be taken at 50% of the amount claimed by the appellant (full consideration for clauses (a) and (b) of the agreement and half consideration for clauses (c), (d) and (e) of the agreement). Hence the arm’s length price of the international transaction would be Rs.1,73,25,000/-. This means an adjustment of Rs.1,73,25,000/- is required to be made to the said international transaction. The AO is directed accordingly. iv. This ground of appeal is accordingly partly allowed.”
Referring to the above, learned CIT(A) held that the facts of the case are similar and the issue is identical. That the conclusion reached by the Assessing Officer is same as has been the findings given by the ITAT in assessee’s own case in assessment year 2003-04 and followed in the earlier years. Hence, learned CIT(A) dismissed the ground raised.
13 3364/M/14 & 3908/M/16 Nhava Sheva International Container Terminal Pvt. Ltd. 13. Against this order, assessee is in appeal before us. We find that identical issue was considered by this Tribunal in assessment year 2008-09 as under :-
“6. We have heard both the counsel and perused the records. Both the counsel fairly agreed that the issue has been dealt with by the ITAT for assessment year 2003-04 and 2004-05 wherein the tribunal had confirmed the order of ld. CIT(A) and the Revenue has not challenged the said order before the ITAT.
We find that in A.Y 2003-04, the Tribunal had concluded as under :
7. We have perused the records and considered the matter carefully. The dispute is regarding transfer pricing adjustments based on arm’s length price. The assessee had made payments of Rs.5,76,10,656/- to its overseas AE for various services claimed to have been rendered as listed in para 2 of this order. CIT(A) after detailed examination has given a finding that full services had been rendered only in respect of clauses (a), (b) & (c). As regards services mentioned in clauses (d) & (e) these were also rendered but these services were mostly required during the initial years and therefore quantum of payment for these services was not justified. In regard to the services mentioned in clauses (f) & (g), CIT(A) was given a finding that there was no evidences to substantiate the services. There is no material placed before us by the revene to controvert the findings of CIT(A). We therefore see no infirmity in the order of CIT(A) which is a reasoned and speaking order and the same is therefore upheld.
8. Further, we note that for A.Y 2004-05, the Tribunal has concluded as under :
3. Briefly stated the facts of the case are that the assessee filed its return declaring income of ? Nil under the normal provisions and Rs.2,43,45,71,882 u/s 115JB. The assessee was incorporated in 1997 with the object to build, own, operate, transfer, etc. It entered into 30 years agreement with Jawaharlal Nehru Port Trust (JNPT) for construction, operation and maintainence of two-berth container terminal on BOT basis. The A.O. made reference to the TPO in regard to 14 3364/M/14 & 3908/M/16 Nhava Sheva International Container Terminal Pvt. Ltd. technical service fees shown by the assessee at Rs.5,78,44,654. The TPO proposed adjustment of Rs.3,30,54,088 by determining ALP for the international transaction on account of technical service fees at Rs.2,47,90,566. Resultantly the A.O. made addition of Rs.3.30 crore. The learned CIT(A), on the basis of TPO’s order for the immediately preceding year i.e. 2003-2004, held that the arm’s length price of the said transaction of technical service fees be determined at 50% of the amount claimed by the assessee (full value for clause (a) and (b) of the agreement and half consideration for (c), (d), (e) of the agreement). In this way the adjustment to the tune of Rs.2,88,22,327 was held to be correct thereby determining the true ALP of the international transaction at Rs.2,89,22,327.
We have heard the learned Departmental Representative and perused the relevant material on record. There is no appearance from the side of the assessee despite notice. At the very outset, the learned Departmental Representative conceded that the issue in question is covered against the Revenue by virtue of the order passed by the Bangalore Bench of the tribunal in the case of M/s. Gemplus India Pvt. Ltd. Vs. ACIT in for assessment year 2003-2004. In the light of this order dated 21.10.2010, the learned Departmental Representative was fair enough to accept that the decision taken by the CIT(A) accords with the view taken by the Bangalore Bench of the Tribunal in the afore-noted case. In such circumstances, we are left with no choice but to uphold the impugned order on this issue and to this extent.
9. Accordingly respectfully following the precedent as above, we do not find any infirmity in the order of ld. CIT(A). Accordingly we uphold the same.”
Accordingly, following the Tribunal’s order in assessee’s own case, where similar order of learned CIT(A) was confirmed, we uphold the order of learned CIT(A) and dismiss the issue raised by the assessee.
15 3364/M/14 & 3908/M/16 Nhava Sheva International Container Terminal Pvt. Ltd.
Apropos the issue of disallowance of expenses under Section 14A of the Act for assessment years 2010-11 and 2011-12. Since the facts are common, we refer to the facts and figures for assessment year 2010-11. The Assessing Officer has made disallowance under Section 14A read with Rule 8D of the Income Tax Rules, 1962. Assessee’s submission that assessee has earned very meagre dividend income and has huge general reserves was not considered by the authorities below. Now, in appeal before us, the learned counsel of the assessee’s contention is two-fold. The first contention is that disallowance under Section 14A of the Act is to be limited to the extent of exempt income earned. We find that the contention of the learned counsel of assessee is cogent inasmuch as the same view was taken by the Hon'ble Apex Court in the case of Maxopp Investment Ltd. vs CIT, 402 ITR 640 (SC). The second contention is that assessee is having sufficient interest free funds and hence no disallowance for interest is to be done under Section 14A of the Act. This claim is supported by Hon'ble Jurisdictional High Court decision in the case of CIT vs HDFC Bank Ltd., 366 ITR 505 (Bom.) and CIT vs Reliance Utilities & Power Ltd., 313 ITR 340 (Bom.). We find this submission is also cogent. Hon'ble Jurisdictional High Court in the aforesaid case has duly accepted that no disallowance for interest is to be done under Section 14A of the Act if assessee is having sufficient interest free funds available with it. It was also expounded that assessee was not required to bring out a one-to-one co-relation. Accordingly, with these directions, we remit this issue to the file of the Assessing Officer, to do computation of disallowance u/s 14A of the Act afresh.
The assessee has filed an additional ground for the prayer that the other income for which assessee has claimed qualification under Section 80IA of the Act should be considered as income from business. Since we have already
16 3364/M/14 & 3908/M/16 Nhava Sheva International Container Terminal Pvt. Ltd. dealt with this issue while adjudicating the grounds referred above, the same do not require adjudication. Hence, the additional grounds are dismissed as infructuous.
In the result, the appeals of the assessee are partly allowed.
Order pronounced in the open court on 3rd February, 2020.