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Income Tax Appellate Tribunal, “C” BENCH, MUMBAI
Before: SHRI PAWAN SINGH & SHRI RAMIT KOCHAR
O R D E R
PER RAMIT KOCHAR, Accountant Member:
This appeal, filed by assessee, being is directed against appellate order dated 30.05.2017 in Appeal No. CIT(A)-17/IT-464/15-16 passed by learned Commissioner of Income Tax (Appeals)-17, Mumbai (hereinafter called “the CIT(A)”), for assessment year 2013-14, the appellate proceedings had arisen before learned CIT(A) from the assessment order dated 09.02.2016 passed by learned Assessing Officer (hereinafter called “the AO”) u/s 143(3) of the Income-tax Act, 1961 (hereinafter called “the Act”) for AY 2013-14.
The grounds of appeal
raised by assessee in the memo of appeal filed with the Income-Tax Appellate Tribunal, Mumbai (hereinafter called “the tribunal”) , read as under:- “The Appellants appeals against the impugned order 30.05.2017 (received by it on 23.06.2017) passed by the Commissioner of Income-tax Act (Appeals)-17, Mumbai (the CIT(A)), under section 253 of the Income-tax Act (the Act), on the following amongst other grounds each of which is in the alternative and without prejudice to any others:
1. The CIT(A) erred in upholding disallowance of Rs. 1,82,460 under section 14A of the Act by invoking the provisions of rule 8D(2)(iii) of the Income-tax Rules.
2. The CIT(A) erred in upholding the stand of the AO in granting depreciation of Rs.3,61,82,551 as against the Appellant's claim of Rs.3,70,21,132.
3. For the purposes of upholding the reduction in depreciation to be allowed, the CIT(A) erred in holding that the said issue stood covered against the Appellant by judgment of the Hon'ble Bombay High Court in its own case for assessment years 2008-09, 2009-10 and 2010- 11 which is factually incorrect because for those years Tribunal has given favourable directions and Revenue has not preferred any appeal against the same before the High Court The Appellant craves leave to add to, alter, amend, delete, vary, substitute and/or rescind any of the aforesaid grounds, as and when required.”
3. The brief facts of the case are that assessee is engaged in the business of manufacturing of master batches, compound of plastic extrusion industry. There are mainly two issues in this appeal. First issue concerns itself with the disallowance of expenditure incurred in relation to earning of an exempt income by invoking provisions of Section 14A of the 1961 Act r.w.r. 8D(2)(iii) of the Income-tax Rules, 1962. The assessee had received an amount of Rs. 25,56,845/- as dividend income which was claimed as an exempt income u/s. 10(34) of the 1961 Act. The assessee had offered Rs. 35,158/- as disallowance u/s. 14A of the Act with respect to earning of an exempt income. The AO had made disallowance u/s. 14Aof the 1961 Act r.w.r. 8D(2)(ii) and 8D(2)(iii) of the 1962 Rules, as under:-
Thus, the AO made total disallowance of Rs. 10,96,588/- (Rs. 11,31,746/- - 35,158/-) which was added back to the income of the assessee being expenditure incurred in relation to earning of an exempt income , vide assessment order dated 09.02.2016 passed by the AO u/s 143(3) of the 1961 Act.
4. The issue travelled to Ld. CIT(A) at the behest of the assessee who was pleased to delete the addition of Rs. 9,49,286/- as was made by the AO u/s. 14A of the 1961 Act r.w.r. 8D(2)(ii) of the 1962 Rules , vide appellate order dated 30.05.2017. It is not brought to our notice both by learned DR as well learned counsel for the assessee that the aforesaid relief granted by learned CIT(A) was challenged by Revenue before the tribunal. This leaves us with the disallowance of Rs. 1,82,460/- as was made by the AO by invoking provision of Section 14A of the 1961 Act r.w.r. 8D(2)(iii) of the 1961 Act which was confirmed by Ld. CIT(A) by deciding this issue against the assessee, vide appellate order dated 30.05.2017 passed by learned CIT(A).
The matter has now reached tribunal at the behest of the assessee and at the outset it was submitted by learned counsel for the assessee that this issue was decided against the assessee by Mumbai- tribunal in assessee’s own case for AY 2012-13 in vide orders dated 31st May, 2018. Our attention was drawn to para 5,6 and 7 of the aforesaid order of the tribunal dated 31st May 2018 and prayer was made by learned counsel for the assessee to maintain consistency by deciding the issue against the assessee , by following preceding year order passed by the tribunal. The relevant extract of the tribunal order dated 31.05.2018 for AY 2012-13 is as under:-
“ 5. Now we turn to the 2nd ground of appeal
. In the profit and loss account, the assessee has credited Rs.22,74,670/- as dividend income and claimed the same as exempt u/s 10(34) in the computation of income. The assessee has offered Rs.32,341/- as disallowance u/s 14A in respect of the exempt income. The Assessing Officer (AO) made a disallowance of Rs.9,02,519/- under Rule 8D(2)(ii) and Rs.1,92,535 under Rule 8D(2)(iii) of the Income Tax Rules, 1962. The AO thus made a disallowance of Rs.10,62,713/- after giving credit of Rs.32,341/- offered by the assessee.
6. In appeal, the Ld. CIT(A) restricted the disallowance to Rs.1,60,194/- [Rs.1,92,535/- disallowed by the AO under Rule 8D(2)(iii) minus Rs.32,341/- offered by the assessee].
7. We find that the ITAT ‘C’ Bench, Mumbai in assessee’s own case for the AY 2008- 09 (ITA No. 4080/Mum/2012) has upheld similar disallowance under Rule 8D(2)(iii). The Tribunal held: “However, coming to the disallowance of other direct or indirect expenditure, the assessee has computed the disallowance at Rs. 24,304/- by allocating the salary paid to junior accountant. We do not agree with this computation of disallowance by the assessee. It is an undisputed fact that investment is a policy decision taken by the Board of Directors at the highest level which requires lot of consultancy from various experts. Therefore, the disallowance u/s. 14A r.w. Rule 8D(2)(iii) becomes imperative, as the disallowance have been computed by the AO as per the applicable provisions of law. We do not find any reason to interfere with the disallowance.”
Facts being identical, we follow the above order of the Co-ordinate Bench and uphold the order of the Ld. CIT(A)”
The Ld. DR raised no objection if the issue is decided against the assessee.
We have heard rival contentions and perused the material on record. We have observed that the assessee is engaged in the business of manufacturing of master batches, compound of plastic extrusion industry. We have observed that the disallowance has been upheld by Ld. CIT(A) u/s. 14A of the 1961 Act r.w.r. 8D(2)(iii) of the 1962 Rules to the tune of Rs. 1,82,460/- less Rs. 35,158/- suo motu offered by the assessee. The issue for earlier year(s) has travelled to tribunal and the tribunal was pleased to confirm the additions made by the authorities below under section 14A of the 1961 Act r.w.r. 8D(2)(iii) of the 1962 Rules in for AY 2012- 13, vide orders dated 31.05.2018 in assessee’s own case , by holding as under:-
“ 5. Now we turn to the 2nd ground of appeal
. In the profit and loss account, the assessee has credited Rs.22,74,670/- as dividend income and claimed the same as exempt u/s 10(34) in the computation of income. The assessee has offered Rs.32,341/- as disallowance u/s 14A in respect of the exempt income. The Assessing Officer (AO) made a disallowance of Rs.9,02,519/- under Rule 8D(2)(ii) and Rs.1,92,535 under Rule 8D(2)(iii) of the Income Tax Rules, 1962. The AO thus made a disallowance of Rs.10,62,713/- after giving credit of Rs.32,341/- offered by the assessee.
6. In appeal, the Ld. CIT(A) restricted the disallowance to Rs.1,60,194/- [Rs.1,92,535/- disallowed by the AO under Rule 8D(2)(iii) minus Rs.32,341/- offered by the assessee].
7. We find that the ITAT ‘C’ Bench, Mumbai in assessee’s own case for the AY 2008- 09 (ITA No. 4080/Mum/2012) has upheld similar disallowance under Rule 8D(2)(iii). The Tribunal held: “However, coming to the disallowance of other direct or indirect expenditure, the assessee has computed the disallowance at Rs. 24,304/- by allocating the salary paid to junior accountant. We do not agree with this computation of disallowance by the assessee. It is an undisputed fact that investment is a policy decision taken by the Board of Directors at the highest level which requires lot of consultancy from various experts. Therefore, the disallowance u/s. 14A r.w. Rule 8D(2)(iii) becomes imperative, as the disallowance have been computed by the AO as per the applicable provisions of law. We do not find any reason to interfere with the disallowance.” Facts being identical, we follow the above order of the Co-ordinate Bench and uphold the order of the Ld. CIT(A)”
In order to maintain consistency as laid down by Hon’ble Supreme court in the case Radhasoami Satsang v. CIT reported in (1992) 193 ITR 321(SC), we decide the issue against the assessee. For Completeness, we would like to clarify that Hon’ble Supreme Court in the case of Maxopp Investment Limited v. CIT reported in (2018) 402 ITR 640(SC) has rejected the dominant purpose theory for invoking provisions of Section 14A of the 1961 Act and hence the contention of the assessee that shares were held as strategic investments on which exempt income by way of dividend was earned and hence provisions of Section 14A cannot be invoked lacks merit in view of aforesaid decision of Hon’ble Supreme Court in the case of Maxopp Investment Limited(supra). We order accordingly.
The next issue concerns itself to a depreciation which was not claimed by the assessee in earlier assessment years prior to AY 2002- 03 as the assessee opted not to claim depreciation for those years for its three divisions namely Division I, II and III of Factory 1 & 2. The AO revised written down value of the assets by taking into account depreciation as were allowable under the 1961 Act for years prior to AY 2002-03 albeit the same was not claimed by the assessee in return of income filed with the Revenue for all those years. This led to the additions to the tune of Rs. 8,38,581/- by the AO and later the Ld. CIT(A) was also pleased to dismiss the appeal of the assessee by holding as under:- “ The disallowance of excess depreciation is a repetitive issue and in preceding years under the identical facts, the claim of depreciation has been disallowed by the AOs. The dispute has reached to the Hon’ble Bombay High Court which has allowed in the favour of the revenue. During the appellate preceding, the 6
appellant company has contended that they have challenged the judgment of the Hon'ble Bombay High Court, before the Hon'ble Supreme Court. However on merit, this issue is covered by the judgment of the Hon'ble Bombay High Court in the Appellant's own case for A.Y. 2008-09, 2009-10 and 2010-11. Thus this ground of appeal filed by the Assessee is dismissed against the Appellant.” The learned counsel for the assessee has prayed that following rule of consistency , the issue be decided against the assessee.
The Ld. DR raised no objection to deciding of this issue against the assesse by following rule of consistency.
We have heard rival contentions and perused the material on record. We have observed that the assessee has not claimed depreciation in the earlier years prior to assessment year 2002-03 while computing its income under the 1961 Act. The AO has now taken into account depreciation which would have been allowable u/s 32 but was not claimed by the assessee while computing its written down value of the assets and income for all those years. We have observed that the issue is decided by tribunal against the assessee for immediately preceding year in vide order dated 31st May, 2018 for AY 2012-13, by holding as under:-
“ This is an appeal filed by the assessee. The relevant assessment year is 2012-13. The appeal is directed against the order of the Commissioner of Income Tax (Appeals)-17, Mumbai *in short ‘CIT(A)’+ and arises out of the assessment completed u/s 143(3) of the Income Tax Act 1961, (the ‘Act’). 2. The grounds of appeal s filed by the assessee read as under:
1. The CIT(A) ought to have held that the Appellant had disclaimed deduction by way of depreciation under section 32(1) of the Act in the earlier years and, therefore, the written down value on which depreciation was to be allowed for the year under consideration should have been higher to that extent. 2. ****
3. The Ld. counsel of the assessee fairly agrees that the 1st ground of appeal has been decided against the assessee by the decision of the Hon’ble 7 Supreme Court in assessee’s own case i.e. Plastiblends India Ltd. v. Additional CIT (2017) 86 taxmann.com 137 (SC). The Ld. DR relies on the above decision.
We have heard the rival submissions and perused the relevant materials on record. In the above decision, it has been held that quantum of deduction under section 80-IA is not dependent upon assessee claiming or not claiming depreciation, because under section 80-IA quantum of deduction has to be determined by computing total income from business after deducting all deductions allowable under sections 30 to 43D of the Act. Following the above decision, we uphold the order of the Ld. CIT(A).”
We have observed that the tribunal while adjudicating appeal for AY 2012-13 in assessee’s own case followed the decision of Hon’ble Supreme Court in assessee’s own case in Plastiblends India Ltd., v Addl. CIT reported in (2017) 86 taxmann.com 137(SC). In order to maintain consistency as laid down by Hon’ble Supreme court in the case of Radhasoami Satsang v. CIT reported in (1992) 193 ITR 321(SC), we decide the issue against the assessee by following the above said decision of the tribunal in assessee’s own case for immediately preceding assessment year 2012-13. We order accordingly.
In the result the appeal of the assessee in AY 2013-14 stood dismissed. Order pronounced in the open court on 30.01.2019. आदेश की घोषणा खुऱे न्यायाऱय में ददनांकः 30 .01.2019 को की गई Sd/- Sd/- (PAWAN SINGH) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER
Mumbai, dated: 30.01.2019
Nishant Verma Sr. Private Secretary