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Income Tax Appellate Tribunal, “F” BENCH, MUMBAI
Before: SHRI SAKTIJIT DEY & SHRI RAJESH KUMAR
Date of Hearing – 19.02.2018 Date of Order – 28.02.2018 3 M. Pallonji & Co. Pvt. Ltd. O R D E R PER BENCH
This bunch consist of three sets of cross–appeals arising out of three separate orders all dated 31st March 2015, passed by the learned Commissioner (Appeals)–5, Mumbai, for the assessment years 2008– 09, 2009–10 and 2010–11. As the appeals pertain to the same assessee involving common issues arising out of identical set of facts and circumstances, therefore, as a matter of convenience, these appeals were heard together and are being disposed off by way of this consolidated order.
./2015 Assessee’s Appeal for A.Y. 2008–09
The only issue arising in the present appeal relates to disallowance made under section 14A r/w rule 8D(2)(iii).
Brief facts are, the assessee a company is engaged in the business of executing contract work for industrial coating, water proofing and also power generation. For the assessment year under dispute, the assessee filed its return of income on 29th September 2008, declaring income of ` 76,02,02,481. During the assessment proceedings, the Assessing Officer noticed that the assessee in the relevant previous year has earned the following exempt income:–
4 M. Pallonji & Co. Pvt. Ltd.
Dividend on shares ` 6,64,522 ` 15,68,577 Income from mutual fund Interest on tax bond ` 24,96,000
He also found that the assessee on its own has disallowed expenditure of ` 27,78,869 under section 14A of the Act. The Assessing Officer, however, called upon the assessee to explain why disallowance should not be made in the manner prescribed under rule 8D. In response, it was submitted, the assessee having already disallowed expenditure relating to exempt income no further disallowance should be made. However, the Assessing Officer did not find merit in the submissions of the assessee and proceeded to compute disallowance by applying rule 8D(2) of the rules and ultimately quantified such disallowance at ` 1,88,00,242 comprising of proportionate interest expenditure of ` 87,96,002 under rule 8D(2)(ii) and administrative expenditure of ` 1,00,04,240 under rule 8D(2)(iii). Being aggrieved of such disallowance, assessee preferred appeal before the learned Commissioner (Appeals).
The learned Commissioner (Appeals) after considering the submissions of the assessee deleted the disallowance of interest expenditure made under rule 8D(2)(ii), being satisfied with the fact that the assessee has sufficient interest free found available with it to 5 M. Pallonji & Co. Pvt. Ltd.
make investments in exempt income yielding assets. Admittedly, the Department has not challenged the aforesaid decision of the learned Commissioner (Appeals). So far as disallowance of administrative expenditure under rule 8D(2)(iii) is concerned, the learned Commissioner (Appeals) after considering the submissions of the assessee, though, agreed that strategic investments should be excluded from the average value of investment for computing disallowance under rule 8D(2)(iii), however, he held that such exclusion would only be restricted to old investments made in the group companies. He held that incremental amount invested in group companies during the year under consideration will form part of average value of investment for computing disallowance under rule 8D(2)(ii). Of–course, the learned Commissioner (Appeals) also accepted the assessee’s plea that investment in mutual debt fund where no dividend was payable and long term capital gain arising on sale of such mutual found since are taxable, have to be excluded from the average value of investment. Accordingly, he worked out the disallowance under rule 8D(2)(iii) at ` 23,96,647 in addition to the disallowance already made by the assessee.
Learned Authorised Representative submitted, the incremental investment made during the year in group companies since is also in the nature of strategic investments, the amount of ` 47,91,70,021
6 M. Pallonji & Co. Pvt. Ltd. representing such investment has to be excluded from the average value of investment for computing disallowance under rule 8D(2)(iii). Further, in support of his contention that incremental increase in strategic investment should not form part of average value of investment. Learned Authorised Representative relied upon the following decisions:– i) Kotak Mahindra Capital v/s DCIT, ITA no.5748/Mum./2012 and ITA no.248/Mum./2013; ii) Vakrangee Ltd. v/s ACIT, ITA no.6908/Mum./2014 iii) Jigar Shah v/s ACIT, ITA no.4366/Mum./2014 iv) DCIT v/s Mahendra Brothers Exports Pvt. Ltd., 161 ITD 772; v) Fiduciary Euromax Global Markets Ltd., ITA no.1349/Mum./ 2012 and ITA no.955/Mum./2014; and vi) Usha Martin Ventures Ltd. v/s DCIT, ITA no.847/Kol./2013.
The learned Authorised Representative submitted, amount of ` 10 crore invested in share application money cannot be treated to be in the nature of investment giving rise to exempt income. Therefore, it has to be excluded from the average value of investment. For such proposition, learned Authorised Representative relied upon the decision of the Tribunal, Mumbai Bench, in Rainy Investment Pvt. Ltd. v/s ACIT, [2013] 56 SOT 61 (Mum.) (Trib.) (URO). Further, the learned Authorised Representative submitted, the assessee has not earned any dividend income either on the incremental strategic investment or on the share application
7 M. Pallonji & Co. Pvt. Ltd. money in the relevant previous year. Therefore, such investments not yielding any exempt income has to be excluded from the average value of investment for computing disallowance under rule 8D(2)(iii). In support of such contention, he relied upon the following decisions:– i) CIT v/s Holesom India Pvt. Ltd., [2015] 57 taxmann.com 28 (Del.); ii) Cheminvest Ltd. v/s CIT, [2015] 378 ITR 33 (Del.); and iii) ACIT Assessing Officer v/s Vireet Investments (P) Ltd., [2017] 16 ITD 27 (Del.) (SB).
Finally, the learned Authorised Representative submitted, the assessee though has made disallowance u/s 14A in assessment years 2012–13, 2013–14 and 2014–15, following the manner in which it has made suo–motu disallowance under section 14A in the impugned assessment year, the Assessing Officer has not made any further disallowance. He, therefore, submitted, the Assessing Officer having accepted the methodology employed by the assessee for making disallowance under section 14A, in the subsequent assessment years there is no reason why the disallowance made by the assessee suo– motu in similar manner in the impugned assessment year should not be accepted.
Learned Departmental Representative submitted, the Assessing Officer being bound by the statutory provisions has to follow the 8 M. Pallonji & Co. Pvt. Ltd.
mandate of rule 8D(2). However, she submitted, the disallowance sustained by the learned Commissioner (Appeals) should be upheld.
We have heard rival submissions and perused material available on record. We have also applied our mind to the decisions relied upon. Undisputedly, the learned Commissioner (Appeals) has deleted the disallowance of interest expenditure under rule 8D(2)(ii) and the Department is not in appeal against such decision of the learned Commissioner (Appeals). Insofar as the disallowance of expenditure under rule 8D(2)(iii) is concerned, the assessee pleaded before the learned Commissioner (Appeals) that strategic investments made in group companies should be excluded from the average value of investment for computing disallowance under rule 8D(2)(iii). Though, the learned Commissioner (Appeals) in principle has agreed to the aforesaid submissions of the assessee, however, he has segregated the old investments and incremental investments made during the year in the group companies and has held that only old investments made in the group companies are to be excluded from the average value of investment for computing disallowance under section 8D(2)(iii). We do not find any rationale or logic behind such decision of the learned Commissioner (Appeals). Once the learned Commissioner (Appeals) has found that the investments made in the group companies are in the nature of strategic investments then no 9 M. Pallonji & Co. Pvt. Ltd.
differentiation can be made between the old investments and the incremental increase made during the year. The decisions relied upon by the learned Authorised Representative lay down the ratio that strategic investments have to be excluded from the average value of investment for computing disallowance under section 148 r/w rule 8D. It is the contention of the learned Authorised Representative before us that the amount of ` 47,91,70,021, represents incremental increase in investments in group companies during the year. Learned Authorised Representative also attempted to demonstrate this fact from the material on record. In view of the aforesaid, we direct the Assessing Officer to examine assessee’s claim and if it is found that the amount of ` 47,91,70,021 is in the nature of strategic investment, then it has to be excluded from the average value of investment for computing disallowance under section 14A r/w rule 8D. It is the further contention of the learned Authorised Representative before us that the amount of ` 10 crore invested in share application money not being in the nature of investment likely to yield any exempt income should be excluded from the average value of investment for computing disallowance under section 14A r/w rule 8D. We find substantial force in the aforesaid submissions of the assessee. The share application money certainly cannot be regarded as an investment in shares until shares are actually allotted. That being the case, as per the decision of 10 M. Pallonji & Co. Pvt. Ltd. the Tribunal, Mumbai Bench, in Rainy Investments Pvt. Ltd. (supra) it cannot form part of average value of investment in computing disallowance under section 14A r/w rule 8D. Notably, learned Authorised Representative has assertively submitted before us that the assessee has not received any dividend income during the relevant financial year either on the strategic investment of ` 47,91,70,021 and share application money of ` 10 crore. Therefore, such investments have to be excluded from the average value of investment for computing disallowance under section 14A r/w rule 8D. We agree in principle with the aforesaid submissions of the learned Authorised Representative. The Hon'ble Delhi High Court in CIT v/s Holcim India Pvt. Ltd. (supra) and Cheminvest Ltd. (supra) has held that in the absence of any exempt income earned during the year no disallowance under section 14A can be made. The Tribunal, Delhi Special Bench in ACIT v/s Vireet Investment Pvt. Ltd., [2017] 82 taxmann.com 415, following the aforesaid decision of the Hon'ble Delhi High Court has held that investments not giving rise to exempt income during the relevant financial year have to be excluded from the average value of investment. In view of the aforesaid, we direct the Assessing Officer to verify the assessee’s claim that it has not received any exempt income on the aforesaid investments and if assessee’s claim is found to be correct, the aforesaid investment should be excluded from the average
11 M. Pallonji & Co. Pvt. Ltd. value of investment for computing disallowance under rule 8D(2)(iii). Grounds raised are allowed for statistical purposes.
In the result, assessee’s appeal is allowed for statistical purposes. ./2015 Revenue’s Appeal for A.Y. 2008–09
In ground no.1 Revenue has challenged the decision of the learned Commissioner (Appeals) in execluding old investments made in group companies for computing disallowance under section 14A r/w rule 8D.
In view of our decision, while deciding assessee’s appeal in ITA no.3739/Mum./2015, for the assessment year 2008–09, this ground has become infructuous, hence, dismissed.
In grounds no.2 and 3, the Revenue has challenged the decision of the learned Commissioner (Appeals) in deleting the addition of service tax to the trading receipt by invoking provisions of section 145A of the Act.
Brief facts are, during the assessment proceeding, the Assessing Officer after calling upon the assessee to furnish details of service tax component forming part of trading receipt, service tax payable on 12 M. Pallonji & Co. Pvt. Ltd.
purchases, CENVAT, credit accrued on actual payment towards purchases, service tax liability accrued on actual receipt from clients observed that the assessee did not explain the manner in which the entries corresponding to service tax component in sales and purchase bills are made in its books of account. The Assessing Officer observed, the assessee should have followed the inclusive method of accounting insofar as the payment of service tax is concerned and accordingly treated service tax as part of trading receipt resulting in addition of amount of ` 2,45,57,686. The assessee challenged the addition before the first appellate authority.
The learned Commissioner (Appeals) after considering the submissions of the assessee having found that the Tribunal in assessee’s own case for assessment year 2007–08 has decided the issue in favour of the assessee followed the same and deleted the addition made by the Assessing Officer.
Learned Departmental Representative relying upon the observations of the Assessing Officer submitted that service tax has to form part of the trading receipt. In this context, she relied upon the decision of the Hon'ble Supreme Court in CIT v/s Thirumalai Swamy Naidu and Sons, 239 ITR 534 (SC).
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Learned Authorised Representative submitted, the issue has been decided in assessee’s own case by the Tribunal in assessment year 2007–08 in favour of the assessee and the Hon'ble Jurisdictional High Court has upheld the decision of the Tribunal while dismissing the appeal of the Revenue.
We have heard rival submissions and perused material on record in the light of the decisions relied upon. The issue in dispute is, whether the service tax should form part of the trading receipt in terms of section 145A of the Act. The Tribunal, while deciding identical issue in assessee’s own case for assessment year 2007–08 followed another decision of the same Bench, wherein, it is held that since the assessee is a service provider, the provisions of section 145A cannot be made applicable as such provisions were specifically introduced for the purpose of manufacture segment of business. Notably, the aforesaid decision of the Tribunal was challenged before the Hon'ble Jurisdictional High Court and the Hon'ble High Court while deciding Revenue’s appeal registered as of 2014 on 8th June 2017 upheld the decision of the Tribunal. So far as the decision in case of Thirumalai Swamy Naidu and Sons (supra) cited by the learned Departmental Representative on careful perusal of the said decision we find it to be factually distinguishable as the issue therein was whether the Central Sales Tax paid by the assessee and subsequently refunded
14 M. Pallonji & Co. Pvt. Ltd. to it is to be treated as Revenue receipt and treated as income under section 41(1) of the Act. In that context, the Hon'ble Supreme Court held that the CST refund is in the nature of revenue receipt and taxable. However, no such facts or issues are involved in the present appeal. Therefore, the decision of the first appellate authority on the issue being in conformity with the decision of the Tribunal in assessee’s own case for assessment year 2007–08 which has been upheld by the Hon'ble Jurisdictional High Court, we uphold the order of the learned Commissioner (Appeals) by dismissing the grounds raised.
In the result, Revenue’s appeal is dismissed. ./2015 Assessee’s Appeal for A.Y. 2009–10
The issue raised in grounds no.1 to 3 relate to disallowance made under section 14A r/w rule 8D.
Facts relating to this issue are more or less identical to similar issue raised by the assessee in ITA no.3739/Mum./2015, except for the fact that in addition to rejecting assessee’s plea for exclusion of incremental investments in group companies amounting to ` 171,73,70,059 and share application money of ` 23,92,75,570, the learned Commissioner (Appeals) also rejected the plea of the assessee to exclude investment of ` 55 crore in Sri Citi Power Generation (T.N)
15 M. Pallonji & Co. Pvt. Ltd.
Pvt. Ltd. by holding that it is not a group companies of the assessee. Therefore, the investment cannot be treated as strategic investment.
We have heard rival submissions and perused material on record. As far as incremental investment in group companies and share application money are concerned, we have already decided the issue in assessee’s appeal being ITA no.3739/Mum./2015. Therefore, the Assessing Officer is directed to compute the disallowance under rule 8D(2)(iii) in terms of our observations made therein. Insofar as investment of ` 55 crore in Sri Citi Power Generation (T.N) Pvt. Ltd. is concerned, the learned Authorised Representative submitted, though, the company is not a group concern, therefore, since the said company is in power sector, the assessee to gain control has made the investment in shares. Therefore, investment made has to be treated as strategic investment. Further, he submitted, the said investment of ` 55 crore hass not yielded any exempt income in the relevant previous year. Therefore, such investment has to be excluded from the average value of investment for computing disallowance under rule 8D(2)(iii).
Learned Departmental Representative relied upon the observations of the learned Commissioner (Appeals).
16 M. Pallonji & Co. Pvt. Ltd.
Having considered the rival submissions we are of the view, the assessee’s claim that investment made in Sri Citi Power Generation (T.N) Pvt. Ltd. is in the nature of strategic investment is not acceptable in view of the reasoning of the first appellate authority. Therefore, for that reason, it cannot be excluded from the average value of investment for computing disallowance under rule 8D(2)(iii). However, we find force in the alternative contention of the learned Authorised Representative that since the investment in Sri Citi Power Generation (T.N) Pvt. Ltd. has not yielding any income in the relevant previous year no disallowance should be made. We direct the Assessing Officer to examine this aspect and if it is found that in the relevant previous year, assessee has not earned any dividend income on the investment in shares of Sri Citi Power Generation (T.N) Pvt. Ltd. such investments have to be excluded from the average value of investment for computing disallowance under rule 8D(2)(iii). These grounds are allowed for statistical purposes.
In ground no.4, the assessee has challenged disallowance of expenditure amounting to ` 1,77,99,929.
Brief facts are, during the assessment proceeding, the Assessing Officer noticed that the assessee has claimed expenditure of ` 1,77,99,929 on account of professional / consultancy fees paid to 17 M. Pallonji & Co. Pvt. Ltd.
Kotak Mahindra Bank. The Assessing Officer called upon the assessee to explain why the expenditure should not be disallowed under rule 8D(2)(i). In response, it was submitted by the assessee that Kotak Mahindra Ltd. advised the assessee on how to raise money at the lowest cost from banks / vendors national as well as international through equity / debt or combination of both. The money was required for working capital credit and Kotak Mahindra Ltd. through their contacts with companies helped the assessee to augment its logistic, painting, dredging business by getting more work and help it to carry out its business more efficiently. The Assessing Officer, however, did not find merit in the submissions of the assessee. After calling for information under section 133(6) of the Act from the concerned bank the Assessing Officer found that the funds was required to be raised for making investment in Met Life India Insurance Co., wherein, the assessee through its group concerns holds 20% equity stake. Thus, it was observed by the Assessing Officer that the expenditure was not related for business entities of the assessee but for raising funds for Met Life India Insurance Co. Therefore, the Assessing Officer disallowed the expenditure as it is not allowable under section 37(1) of the Act. Though, the assessee challenged the disallowance before the first appellate authority, however, he also sustained the disallowance.
18 M. Pallonji & Co. Pvt. Ltd.
Learned Authorised Representative admitted that the fund raised through Kotak Mahindra Bank Ltd. was solely for the purpose of investment in Met Life India Insurance Co., therefore, the expenditure incurred has a direct nexus to such investment, however, he submitted that making investment in other companies is also one of the objects of the assessee company. In support of such contentions, he relied upon the following decisions:– i) CIT v/s Amalgamation Pvt. Ltd. 226 ITR 188; and ii) CIT v/s Distributors (Baroda) Pvt. Ltd., 83 ITR 377.
The learned Departmental Representative strongly relying upon the findings of the Assessing Officer and the first appellate authority submitted that nothing has been brought on record to prove that the main object of the assessee is to do business in investment in other companies. She submitted, as per the material on record, the main objects of the assessee is to do business in industrial abrasive blasting and painting, anti corrosion water proofing reclamation off–shore contractor, supply of electricity from wind mill, execute construction contracts for corporate, logistics, dredging and margin contracts. She submitted, when expenditure incurred was in relation to raising of funds in respect of another company, such expenditure cannot be considered to be laid out for the business of the assessee. She, therefore, submitted that disallowance of expenditure is proper.
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We have heard rival submissions and perused material on record. We have also applied our mind to the decisions relied upon. So far as the factual aspect of the issue is concerned, there is no dispute that the payment made of ` 1,77,99,929 to Kotak Mahindra Bank Ltd. was for the purpose of raising funds for Met Life India Insurance Co. Ltd., wherein the assessee and other group companies holds substantial stake. The aforesaid fact has been accepted by both the parties. Therefore, it is required to be seen whether the expenditure directly related to such an investment / activity is for the purpose of assessee’s business. Though, the learned Authorised Representative has submitted before us that making investment in other companies is also one of the objects of the assessee, however, relevant documentary evidence to establish such fact have not been brought before the Bench. As could be seen from the assessment order which is also relied upon by the learned Departmental Representative the assessee is in the business of industrial abrasive blasting and painting, anti corrosion water proofing reclamation off–shore contractor, supply of electricity from wind mill, execute construction contracts for corporate, logistics, dredging and margin contracts. On a careful reading of the judgment in Amalgamation Pvt. Ltd. (supra), it is seen that the High Court that has held that holding of investments in other companies can be considered to be a business if it is a real substantial
20 M. Pallonji & Co. Pvt. Ltd. and systematic or organised course of activities or conduct with the said purpose of earning profit. However, the High Court held that the issue whether expenditure that has been incurred was wholly and exclusively laid out for the purpose of business has to be seen by applying two tests viz., (i) the expenditure must be incurred by the assessee in his capacity as a trader and (ii) it must be incidental to the carrying on of his business. There must be a nexus between the expenditure and the business of the assessee. The High Court held that if the purpose of the payment was to take out a subsidiary from an inconvenient situation it cannot be said that such expenditure is wholly and exclusively for the purpose of business. The Hon’ble Supreme Court while approving the view expressed by the High Court held that if the business of the company is holding of investment and if with reference to such business any expenditure had been incurred that can be allowed as deduction. In case of Distributors (Baroda) Pvt. Ltd. (supra), it was held that if a company’s primary business is in dealing or holding of investments then its business can be considered to be that. However, if the objects of the company are manifold and holding investment is only one of them it cannot be said that the company was incorporated primarily with the object of carrying on the business of dealing in or holding of investment. Therefore, before proceeding to decide the allowability of assessee’s claim of 21 M. Pallonji & Co. Pvt. Ltd. expenditure, it has to be seen, what are the primary objects of the assessee company as per the memorandum and article of association. As the allowability of assessee’s claim is required to be examined with reference to the objects of the assessee and which has not been examined in the earlier stages, we are inclined to restore the issue to the file of the Assessing Officer for deciding afresh after examining the objects of the assessee company to find out what are the primary objects and accordingly decide the issue keeping in view the decisions referred to above. The Assessing Officer will not only afford reasonable opportunity of being heard to the assessee before deciding the issue but also consider the submissions to be made by the assessee and any other decisions which may be relied upon. Ground is allowed for statistical purposes.
In the result, assessee’s appeal is allowed for statistical purposes. ./2015 Revenue’s Appeal for A.Y. 2009–10
Ground no.1 is identical to ground no.1 raised by the Revenue in its appeal being ITA no.3523/Mum./2015. Following our decision vide Para–13 of this order, this ground is dismissed.
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The issue raised in grounds no.2, 3 and 4 are identical to the issue raised by the Revenue in grounds no.2, 3 and 4 in its appeal being ITA no.3523/Mum./2015. Following our decision in Para–18 of this order, we uphold the order of the coma and dismiss the grounds raised
by the Revenue.
34. In the result, Revenue’s appeal is dismissed. ./2015 Assessee’s Appeal for A.Y. 2010–11
The issue raised in grounds no.1 to 3 are identical to the issue raised in grounds no.1 to 3 raised by the assessee in its appeal being ITA no.3740/Mum./2015. Following our decision in Para–22 and 24 of this order, we restore the issue to the Assessing Officer with similar direction. These grounds are allowed for statistical purposes.
Ground no.4, being general in nature need not be adjudicated.
In the result, assessee’s appeal is allowed for statistical purposes. ./2015 Revenue’s Appeal for A.Y. 2010–11
Ground no.1 is identical to the ground no.1 raised by the Revenue in its appeal being ITA no.3523/Mum./2015. Following our decision vide Para–13 of this order, we uphold the order of the learned Commissioner (Appeals) and dismiss the ground.
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The issue raised in grounds no.2 and 3 are identical to the issue raised in grounds no.2 and 3 by the Revenue in its appeal being ITA no.3523/Mum./2015. Following the decision in Para–18 of this order, we uphold the order of the learned Commissioner (Appeals) by dismissing the grounds raised by the assessee. In the result, Revenue’s appeal is dismissed. 40.
To sum up, Assessee’s Appeal in ITA no.3739/Mum./2015 is allowed for statistical purposes; Revenue’s Appeal in Mum./2015 is dismissed; Assessee’s Appeal in ITA no.3740/Mum./ 2015 is allowed for statistical purposes; Revenue’s Appeal in ITA no. 3524/Mum./2015 is dismissed; Assessee’s Appeal in ITA no.3741/ Mum./2015 is allowed for statistical purposes; Revenue’s Appeal in ITA no.3525/Mum./2015 is dismissed.
Order pronounced in the open Court on 28.02.2018