Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, “A” BENCH, MUMBAI
Before: SHRI R. C. SHARMA, AM & SHRI AMARJIT SINGH, JM
O R D E R
PER AMARJIT SINGH, JM:
The assessee has filed the present appeal against the order dated 20.03.2014 passed by the Commissioner of Income Tax (Appeals)-5 Mumbai [hereinafter referred to as the “CIT(A)”] relevant to the AY. 2009- 10.
The assessee has raised the following grounds: -
“(1) Disallowance of u/s 14A-Rs.6,41,481/- (1) The Commissioner (A) erred in confirming the disallowance of u/s 14A of Rs.6,41,481/-. 2. The Commissioner (Appeals) failed to appreciate that further investment in the mutual funds and equity shares made by the assesses company during the year under consideration was out of ITA. No.3707/M/14 A.Y.2009-10 its own funds which were given as ICDs and therefore, borrowed funds were not utilized for making investment in Mutual Funds and in equity shares and hence, disallowance of Rs.4,02,826/-under clause (ii) of Rule 8D(2) ought not to have been made* II) Disallowance of professional fees of Rs.19,62,695/- 3. The Commissioner (Appeals) erred in confirming ihe disallowance of professional fees of Rs,19,62.695 - paid by the assessee company to M/s Viniyog Investment and Trading Company Pvt Ltd. which had advised the assessee to invest its spare funds of Rs,3 crores with M/s Sidhivinayak Construction Private Limited for the period of six months and earned interest of Rs.30,40.443/- and received back its capital without any litigation and without any hassles.
The Commissioner (Appeals) erred in confirming the disallowance of professional fees on the ground that it could not be accepted that the assessee was not in a position to invest its funds without advise of M/s Viniyog Investment and Trading Company Pvt. Ltd.
The Commissioner (Appeals) erred in confirming the disallowance cf professional fees on the ground that M/s Viniyog Investment and Trading Company Pvt. Ltd. had not rendered similar services to any other unrelated companies and therefore, professional fees paid to it by the assessee company is not allowable III) Disallowance of Write off of dies of Rs.48,21,045/- 6. The Commissioner (Appeals) erred in confirming the disallowance of write off of dies of Rs,48,21,045/- without appreciating that in the year under consideration the assessee company had written off dies from the opening stock of dies as the dies have become obsolete and of no use.
4. Disallowance of purchases amounting to Rs.2,16,51,442/- 7. The CIT(A) erred in confirming the disallowance of purchase of furnace oil and diesel oil from M/s. Khushboo Enterprises amounting to Rs.2,16,51,442/- on the ground that the assessee company has not discharged the onus of proving the genuineness of the said purchases.
The order of the CIT(A) on the aforesaid issues is bad in law and without jurisdiction.
Your appellant craves leave to add to alter, amend or delete any of the foregoing grounds of appeal.”
ITA. No.3707/M/14 A.Y.2009-10
The brief facts of the case are that the assessee filed its return of income for the A.Y. 2009-10 on 30.09.2009 declaring loss to the tune of Rs.(-)9,94,81,637/-. The case was selected for scrutiny. Therefore notice u/s 143(2) of the I.T. Act, 1961 dated 19.08.2010 was issued and served upon the assessee. Subsequently, notice u/s 142(1) of the Act dated 08.07.2011 & 05.09.2011 were also issued and served upon the assessee. The assessee company was engaged in the business of Manufacturing of Automobile Forgings, automobile & auto parts. There was a lock-out during the year in the company. The assessee company earned the dividend income to the tune of Rs.13,82,176/-. The Assessing Officer applied the provision of Section 14A r.w. Rule 8D of the Act and disallowed the expenditure incurred to earn the exempt income to the tune of Rs.6,41,481/-. The assessee claimed the professional fees to the tune of Rs.19,62,695/- to M/s. Viniyog Investment & Trading Co. Pvt. Ltd. which was also disallowed and added to the income of the assessee. The assessee claimed the dies written off deduction to the tune of Rs.77.61 lakhs which was also verified and claim to the extent of Rs.48,21,045/- was disallowed. The discrepancies to the tune of Rs.2,16,51,442/- was found in purchase, therefore, the same was added to the income of the assessee and the total income of the assessee was assessed in loss to the tune of Rs.(-)7,00,47,976/-. Feeling aggrieved, the assessee filed an appeal before the CIT(A) and the CIT(A) partly allowed the claim of the assessee but the assessee was not satisfied on the ground mentioned above, therefore, the assessee has filed the present appeal before us.
ISSUE NO.1:-
ITA. No.3707/M/14 A.Y.2009-10
4. Under this issue the assessee has challenged the disallowance of an amount of Rs.6,41,481/- u/s 14A of the Act. The contention of the assessee is that the assessee’s own fund is more than the investment, therefore, no interest disallowance is required in view of the provision of Rule 8D(2)(ii) of the Act. However, on the other hand, the Ld. Representative of the Department has refuted the said contention. It is not in dispute that the assessee has earned the exempt income to the tune of Rs.13,82,176/-. The assessee was having interest free fund to the tune of Rs.33.55 crores as against the investment of Rs.6.93 crores. The detail in this regard lies at page no. 36 of the paper book which is the annual report for the A.Y. 2009- 10. In the case of CIT Vs. HDFC Bank Ltd. (366 ITR 505 Bom.), it is specifically held that if the assessee has own interest free fund more than the investment, therefore, interest is not required to be disallowed. In view of the said circumstances, we are of the view that the no interest is liable to be disallowed in view of the provision Rule 8D(2)(ii) of the Act. So far as the claim of disallowance in the other head is concerned we found no justifiable ground to interfere with the finding of the CIT(A) in this regard. Accordingly, we partly allowed the claim of the assessee and decide this issue in favour of the assessee against the revenue. ISSUE NO.2:- 5. Issue no. 2 is in connection with the disallowance of professional fees. This issue has already been adjudicated by the Hon’ble ITAT in the assessee’s own case for the A.Y. 2008-09 in in which finding no justifiable claim, the ITA. No.3707/M/14 A.Y.2009-10 claim of the assessee has been declined. The finding of the said case is hereby reproduced as under.: -
“Under this issue the assessee has challenged the confirmation of disallowance of Professional Fees to the tune of Rs.22,94,400/-. The Ld. Representative of the assessee has argued that the assessee engaged M/s Viniyog Investment & Trading Co. Pvt. Ltd., for financial consultancy, investment in Inter Corporate Deposits (ICDs) and also other financial advisory services and due to advise of the said company the assessee company earned the interest income to the tune of Rs.1,70,50,361/- and in lieu of its services the assessee has paid the fees to the tune of Rs. 22,94,400/- which is justifiable and is liable to be allowed. It is also argued that the necessary data with regard to the advice of the M/s Viniyog Investment & Trading Co. Pvt. Ltd., has been submitted before the AO as well as the CIT(A) but the CIT(A) has wrongly confirmed the disallowance of the Professional Fees to the tune of Rs.22,94,400/-. which is required to be allowed hence, the finding of the CIT(A) in this regard is wrong against law and facts and is liable to be set aside. However, on the other hand, the Ld. Representative of the Department has refuted the said contentions. The contention of the assessee is that the assessee has paid Professional Fees to the tune of Rs.22,94,400/- to the M/s Viniyog Investment & Trading Co. Pvt. Ltd., for rendering the service to invest its spare funds for the investment in Inter Corporate Deposits (ICDs) and other financial advisory services. The assessee company is the related company of the finance company. There is nothing on record to which it can be assumed that the consultancy company has given some material to the assessee company for the investment of 7 companies which has been shown by the assessee to earn the interest @ of 10% to 11%. The assessee company has relied upon the letter dated 02.02.2007 issued by the M/s Viniyog Investment & Trading Co. Pvt. Ltd., in which the said company has shown annual fees to the tune of Rs.21,00,000/- which can be raised monthly. The said offer was accepted by the Assessee in view of letter dated 06.02.2007 which lies at page no. 73 of the paper book. The assessee company has also shown the company in which the assessee company earned the interest @ 10% to 11% and the said list which lies at page no. 71 of the paper book. No other document has been placed on ITA. No.3707/M/14 A.Y.2009-10 record in support of this contention. Since, the company is related company and no working of any kind was given to the assessee company for the investment in 7 companies nor produced before us. The assessee entered into F&O transactions by making purchase only on 18.06.2007 and making sale on 20.10.2007, 23.10.2007 & 25.10.2007.The transaction was carried out only on 10-11 different dates which are few transactions. The assessee paid of Rs.22,94,400/- which was considered as unreasonable. The assessee nowhere submitted about the reasonableness of the fees and comparable fees with other chart by unrelated parties hence, the Professional Fees seems to be rightly disallowed by the AO and confirmed by the CIT(A). Accordingly, this issue is decided in favour of revenue” ISSUE NO.3:- 6. Issue no. 3 is in connection with the write off dies of Rs.48,21,095/- . In this regard we noticed that the claim of the assessee has already been remanded for the A.Y 2007-08 by Hon’ble ITAT in the assessee’s own case in decided on 26.09.2016 before the AO. The relevant finding has been given in para no. 17 of the said decision which is reproduced as under: -
“17. We have considered the rival contentions and also perused the material available on record. We have observed that the assessee has two manufacturing plants, one at Chakan and another at Chinchwad. It is the contention of the assessee that the Chakan plant was demerged and taken over by MFL. It is the say of the assessee that the dies left with the assessee with respect to Chakan Plant cannot be used because of the various restrictions on the assessee due to the non-compete agreement clauses. It is the say of the assessee that now these dies cannot be used by the assessee and also have became obsolete because of the agreement with MFL whereby the assessee agreed not to compete with MFL in persuant to demerger of Chakan Plant in favour of MFL and non compete-agreement with MFL. As per the assessee these dies were sold in the assessment year 2012-13 for a cost of Rs. 99.93 lacs
ITA. No.3707/M/14 A.Y.2009-10 which has been offered for taxation. All this above contentions of the assessee needs verification and examination both on facts and on legal grounds about the validity and legality of the allowability of the claim of the assessee with respect to write off of old and obsolete dies to the tune of Rs.1,99,00,801/- and in our considered view, the matter/issue needs to be set aside and restored to the file of the A.O. for necessary verification and examination , and de- novo determination of the issue by the AO on merits in accordance with law . The AO shall decide the issue on merits in accordance with law uninfluenced by any of our observations in this order and shall be entitled to make all necessary and relevant enquiries, verifications and examinations etc. as may deem fit to adjudicate the above issue. The assessee shall be allowed by the AO to produce all necessary and relevant evidences and explanations before the AO which shall be admitted by the AO and the matter be adjudicated by the AO accordingly on merits in accordance with law. Needless to say that proper and sufficient opportunity of being heard be provided to the assessee by the AO in accordance with principles of natural justice in accordance with law. We order accordingly.”
In view of the above mentioned decision, we remand this issue before the AO to decide the matter afresh in view of the similar lines as directed by the ITAT in the assessee’s own case for the A.Y.2007- 08 in dated 26.09.2016. Accordingly, this issue is being decided in favour of the assessee against the revenue.
ISSUE NO.4:- 8. Issue no. 4 is in connection with the disallowance of purchases amounting to Rs.2,16,51,442/-. The claim of the assessee is in connection with the purchases was declined because the assessee failed to file the confirmation of account from M/s. Khushbu Enterprises. The Assessing Officer also issued the notice u/s 133(6) of ITA. No.3707/M/14 A.Y.2009-10 the Act to M/s. Khushbu Enterprises which was not replied.The assessee was under obligation to make the payment who failed to make the payment to the said party well in time. The contention of the assessee is that the after making the payment to the said party now the assessee has procured the confirmation as well as the affidavit which is required to be considered in accordance with law. The assessee has also filed an application for additional evidence. However, the Ld. Representative of the Department has refuted the said contention. Since the evidence is in connection with confirmation of the account of M/s. Khushbu Enterprises and the affidavit filed by the proprietor. Therefore, we are of the view that the application for additional evidence is required to be admitted and is required to be considered because it would be in the interest of justice. Accordingly, we admit the additional evidence and set aside the finding of the CIT(A) on this issue and remand this issue before the AO to decide the matter afresh in the light of the evidence to be given by assessee and by giving an opportunity of being heard to the assessee in accordance with law. Accordingly, this issue is decided in favour of the assessee against the revenue.
ITA. No.3707/M/14 A.Y.2009-10