ACIT, NEW DELHI vs. M/S. LITE BITE FOODS PVT. LTD., NEW DELHI

Date of hearing 11.12.2017 Date of pronouncement 14.12.2017 ORDER PER O.P. KANT, A.M.:

This appeal by the Revenue is directed against order dated 22/03/2016 passed by the Ld. Commissioner of Income-tax (Appeals)-5, Delhi for assessment year 2012-13, raising following grounds:

5. That the appellant craves leave to add, alter, amend or forego any ground(s) of the appeal raised above at the time of hearing. 2. Facts in brief of the case are that the assessee company made investment in shares of its own subsidiary M/s Lite Eat out Foods Private Limited, amounting to Rs.9,69,67,027/- as on 31/03/2012. The assessee did not earn any dividend income during the year under consideration. According to the Ld. Assessing Officer, not earning any dividend income was not a bar for implementing the section 14A of the Income-tax Act, 1961 (in short ‘the Act’) read with Rule 8D of Income-tax Rules, 1962 (in short ‘the Rules’) in disallowing the expenses in relation to future tax free dividend income. The Ld. Assessing Officer relied upon the circular No. 5/2014 of the Central Board of Direct Taxes (CBDT), wherein it had been clarified that section 14A of the Act provides for disallowance of expenditure even in the situation, when the taxpayer has not earned any exempt income in any particular year. Accordingly, applying the Rule 8D of the Income-tax Rules, 1962, the Ld. Assessing Officer disallowed an amount of Rs.1,33,31,898/- and added back to the total income of the assessee. 2.1 The Ld. CIT(A) following the decision of the Hon’ble Delhi High Court in the case of Holcim (India) Private Limited Vs. DCIT in and 5124/2012 and Cheminvest Ltd. Vs. CIT in ITA No. 749/2014 dated 02/09/2015, deleted the addition. Aggrieved, the Revenue is in appeal before the Tribunal raising the grounds as reproduced above. 3. In the grounds raised

, the only issue is in respect of disallowance under section 14A of the Act.

4. At the outset, we may like to mention that Ld. Sr. DR requested for adjournment on the ground that assessment records were required for preparation of the case. Though none was present on behalf of the assessee for arguing the appeal, the said request of Ld. Sr. DR was rejected and he was directed to argue the appeal of the Revenue as the issue in dispute was squarely covered by the decision of the Hon’ble jurisdictional High Court.

5. The Ld. Sr. DR relied on the order of the Assessing Officer. The case was heard ex-parte qua the assessee.

6. We have heard the submission of the Ld. Sr. DR and perused the relevant material on record. We find that the Ld. CIT(A) has followed the decision in the preceding year, i.e., AY 2011-12, wherein following the Hon’ble Delhi High Court in the case of Holcim India Private Limited (supra) and Cheminvest Ltd. (supra), the appeal of the assessee was allowed. The relevant part of the order of the learned CIT(A) is reproduced as under:

“4.1 I have given careful consideration to the facts & circumstances of the case. The facts involved in this appeal are identical to the facts in the preceding AY 2011-12, save and except for the fact that the appellant has made further investments of Rs. 2,67,04,487/- in the subsidiary companies during the year. In the preceding year, it had been the finding of the undersigned that the interest expenditure during the year could not be said for purpose of maintaining and holding investments unlike the facts of the cases before the Delhi High Court in Holcim India (P) Ltd. and Cheminvest Ltd. The operative part of the appellate order for AY 2011-12 is reproduced herein under for the sake of ready reference: "I have perused the assessment order and the impugned financial statements. The appellant has invested a sum of Rs.7.02 crores in subsidiary companies mainly, Lite Eatout Foods Pvt. Ltd. and Wrapster Foods Pvt. Ltd. in the previous year and there are no fresh investments this year. The statutory audit report prepared u/s 44AB clause 17(1) concerning the amount of deduction inadmissible in terms of section 14A has been mentioned as Nil. The related party investments are also mentioned in the Schedules forming part of the accounts of the auditors' report. However the appellant company is not an investment company but is in the business of hospitality and therefore the interest expenditure of Rs.3.03 crores that has been incurred during the year cannot be said to have been incurred for holding and maintaining investments. The decisions rendered by the Delhi High Court in Holcim India Pvt. Ltd and Cheminvest Ltd. were rendered in the context of holding companies who had invested in shares of subsidiary companies and therefore, it was held that the interest expenditure was incurred was for purposes of maintaining the investment and which may or may not give rise to tax free income. However, the present legal position established by the jurisdictional High Court in the case of Cheminvest Ltd. (61 taxmann.com 118) that has been relied upon by the Ld. AR is that no disallowance can be made if no exempt income has been earned during the year and this decision has followed an earlier decision in the case of Holcim India Pvt. Ltd., which basically relied upon the decisions of the Punjab and Haryana High Court in Lakhani Marketing, Hero Cycles Ltd. and Winsome Textile Industries Ltd., the Gujarat High Court decision in Corrtech Energy (P) Ltd. and the Allahabad High Court decision in Shivam Motors (P) Ltd., which were non-investment companies. Therefore, without going into the merits as to whether there needs to be made any disallowance in respect of interest expenditure, i.e. whether borrowed funds have been utilized to make the impugned investments for the purposes of Rule 8D, the judicial discipline demands that the Delhi High Court order be respected and on this account, since no dividend income had been earned during the year it is held that there can be no disallowance u/s 14A. Ground no. 3 is also allowed." 4.2 The predominant judicial view at this point in time among the High Courts of the country, including the jurisdictional High Court, in the cases referred to supra, is that no disallowance can be made u/s 14A if no exempt income has been earned during the year under consideration. The decision of the Delhi High Court being binding on the undersigned, it is imperative that the same should be applied and followed particularly when a legal issue is involved. Recently, the Bombay High Court in the case of HDFC Bank Ltd. (67 taxmann.com 42) emphasized on the need for respect to binding precedence set by the hierarchical system of courts in the country. The operative portion of the High Court order reads as under:- "7. In our system of Jurisprudence the theory of Precedents and the hierarchical structure are an inherent part of our dispute resolution/justice obtaining apparatus i.e. Courts / Tribunal. The theory of precedent ensures that what has been done earlier would be done subsequently on identical facts. To wit, like cases are to be treated alike. Thus, the doctrine of precedent ensures certainty of law, uniformity of law and fairness meeting some of the essentials ingredients of Rule of Law. In fact, the Supreme Court in Union of India v. Raghuvir Singh 1989(2) SCC 754 while setting out the objectives of the doctrine of Precedent observes at para 7, 8 and 9 thereof as under:— "7, India is governed by a judicial system identified by a hierarchy of courts, where the doctrine of binding precedent is a cardinal feature of its jurisprudence.

8. Taking note of the hierarchical character of the judicial system in India, it is of paramount importance that the law declared by this Court should be certain, dear and consistent. It is commonly known that most decisions of the courts are of significance not merely because they constitute an adjudication on the rights of the parties and re-solve the dispute between them, but also because in doing so they embody a declaration of law operating as a binding principle in future cases. In this latter aspect lies their particular value in developing the jurisprudence of the law.

8. Further the Apex Court in the case of Collector of Central Excise v. Dunlop India Ltd. 154 ITR 172 has observed as under:- "We desire to add and as was said in Cassell and Co. Ltd. v. Broome [1972] AC 1027 (HL), we hope it will never be necessary for us to say so again that "in the hierarchical system of courts" which exists in our country, "it is necessary for each lower tier", including the High Court, "to accept loyally the decisions of higher tiers." It is inevitable in a hierarchical system of courts that there are decisions of the supreme appellate tribunal which do not attract the unanimous approval of all members of the judiciary…………But the judicial system only works if someone is allowed to have the last word and that last word, once spoken, is loyally accepted" (See observations of Lord Hailsham and Lord Diplock in Broome v. Cassell). The better wisdom of the court below must yield to the higher wisdom of the court above. That is the strength of the hierarchical judicial system. In Cassell v. Broome [1972] AC 1027, commenting on the Court of Appeal's comment that Rookes v. Barnard [1964] AC 1129, was rendered per incuriam, Lord Diplock observed (p. 1131). "The Court of Appeal found themselves able to disregard the decision of this House in Rookes v. Barnard by applying to it the label per incuriam. That label is relevant only to the right of an appellate court to decline to follow one of its own previous decisions, not to its right to disregard a decision of a higher appellate court or to the right of a judge of the High Court to disregard a decision of the Court of Appeal." It is needles to add that in India under article 141 of the Constitution, the law declared by the Supreme Court shall be binding on all Courts within the territory of India and under art. 144 all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court."

9. Although both the above decisions are rendered in the context of the decision of the Supreme Court, the same principle with equal force would apply to the decisions of the High Court within the State over which it exercises jurisdiction. This issue is long settled by the Apex Court in East India Commercial Co. Ltd. Calcutta and Anr. v. Collector of Customs, Calcutta 1962 SC SC 1893 wherein it has been held as under: — "29……..This raises the question whether an administrative tribunal can ignore the law declared by the highest court in the State and initiate proceedings in direct violation of the law so declared. Under Art.215, every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. Under Art. 226, it has a plenary power to issue orders or writs for the enforcement of the fundamental rights and for any other purpose to any person or authority, including in appropriate cases any Government, within its territorial jurisdiction. Under Art. 227, it has jurisdiction over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. It would be anomalous to suggest that a tribunal over which the High Court has superintendence can ignore the law declared by that court and start proceedings in direct violation of it. If a tribunal can do so, all the subordinate courts can equally do so, for there is no specific provision, just like in the case of Supreme Court, making the law declared by the High Court binding on subordinate courts. It is implicit in the power of supervision conferred on a superior tribunal that all the tribunals subject to its supervision should conform to the law laid down by it. Such obedience would also be conducive to their smooth working: otherwise, there would be confusion in the administration of law and respect for law would irretrievably suffer. We, therefore, hold that the law declared by the highest court in the State is binding on authorities or tribunals under its superintendence, and that they cannot ignore it either in initiating a proceeding or deciding on the rights involved in such a proceeding. If that be so, the notice issued by the authority signifying the launching of proceedings contrary to the law laid down by the High Court would be invalid and the proceedings themselves would be without jurisdiction." Thus, the law declared by the decisions of the High Court will be binding upon all authorities and Tribunals functioning within the State. Consequently, the decisions of this Court would be binding upon all Authorities, Tribunals and Courts subordinate to the High Court within the State of Maharashtra". 4.3 Keeping in view the binding precedence of the Delhi High Court on the issue, it is held that no disallowance can be made during the year in question as no exempt income has been earned. Accordingly, ground nos. 1 and 2 are allowed.”