COSMOS INDUSTRIES LTD.,GHAZIABAD vs. ITO, NEW DELHI

Further that the learned CIT (A) has erred in law as well as on merits of case in trying to establish that assessee does not have interest free funds to cover the amount of investment. Investment was to the tune of Rs. 7.35 crores as against capital plus reserves of Rs. 11.88 crores as on 31.03.2012. Where interest free funds are available to the assessee and also raised loans, it can be presumed that investment were made from available interest free funds. If is established by various High courts that investment could be made out of interest free funds generated or available with the company if interest free funds are sufficient to meet the investments. 3. The learned CIT (A) was not justified even not discussing and ignoring the judgments of Hon'ble High courts of Allahabad, Bombay, Gujarat, Punjab & Haryana which were cited by assessee in its written submission. In these leading cases additions made on the same issue was deleted and it was held that In the absence of any tax free income, corresponding expenditure could not be worked out for disallowance and where assessee's own funds and non interest bearing funds exceeds the tax free securities. 4. The appellant claims to add amend or withdraw any of the ground of appeal on or before the date of hearing.

Assessment year 2011-12 Brief facts of the case are as under: During year under consideration assessee had shown investment of Rs. 6,50,15,930/-as on 31/03/11 and Rs. 25,33,430/-as on 01/04/10. Ld.AO called upon assessee to explain applicability of provisions of section 14A of the Income Tax Act, 1961 (the Act). Ld.A.O. while completing assessment made disallowance of Rs. 22,65,357/-under Rule 8D (2) (ii) and Rs.1,68,873/-under Rule 8D (2) (iii) of Income Tax Rules.

Aggrieved by order of Ld. AO, assessee preferred appeal before Ld.CIT(A) who dismissed appeals filed by assessee thereby upholding disallowance made by Ld. AO.

Aggrieved by order of Ld.CIT(A) assessee is in appeal before us now.

Admittedly, Ld.AR submitted that there is no dividend income earned by assessee during years under consideration. He placed reliance upon computation at page 2 of small paper book, wherein assessee declared agricultural income amounting to Rs.2,244/-. Further at page 3 profit and loss account for year ending 31/03/11 reveals that assessee earned interest income, agriculture income, profit on sale of assets and other income including balance written off under Scheduled 13. 6.1. It has been thus submitted by Ld.AR that assessee has not earned any dividend income during the year which is exempt from payment of tax for attributing any expenditure under Rule 8D of Income Tax Rules, 1963.

We have perused submissions advanced by both sides in light of records placed before us.

On reading of para 3.2.3 of order passed by Ld.CIT(A) admittedly, there is no exempt income earned by assessee during year. Ld.CIT(A) proceeded to uphold disallowance on footing that it is not necessary that exempt income should be earned during that very year under consideration. 8.1. In our considered opinion this view of Ld.CIT (A) has been overturned by decision of Hon’ble High Court in case of Chem Investment Ltd. vs CIT reported in (2015) 61 taxman.com 118. 8.2. We refer to following observations by Hon’ble Delhi High Court: 23. In the context of the facts enumerated hereinbefore the Court answers the question framed by holding that the expression 'does not form part of the total income' in Section 14A of the envisages that there should be an actual receipt of income, which is not includible in the total income, during the relevant previous year for the purpose of disallowing any expenditure incurred in relation to the said income. In other words, Section 14A will not apply if no exempt income is received or receivable during the relevant previous year.” 8.3. Thus in our considered opinion interpretation of section 14 A by Ld. CIT(A) cannot be upheld. Respectfully following decision of Hon’ble Delhi High Court in case of Chem Investment Ltd. vs CIT, we allow grounds raised by assessee. Accordingly grounds raised by assessee for A.Y. 2011-12 stands allowed.