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Income Tax Appellate Tribunal, DELHI BENCH “D”, NEW DELHI
Before: SH. S. V. MEHROTRA & SMT. BEENA A. PILLAI
ORDER
PER BEENA A. PILLAI, JM:
The present appeals are filed by assessee as well as revenue against order dated 09.05.2011 and 28.01.2013 passed by Ld. CIT(A) for assessment year 2008-09 and 2009- 10. We shall first take up assessment year 2008-09 grounds raised by assessee in this appeal are as under: ITA number 3805/del/2011 (1) The Ld.CIT(A) erred in upholding the addition of Rs 9,95661/- by disallowing amortization charge of Lease Hold Land without appreciating the fact that during the period of lease ,no ownership was bestowed on the assessee. (2) The CIT(A) erred in not appreciating that, during the period, of lease the assessee paid lease rent for beneficial ownership of the land. The Lease rent paid is for business purpose and is allowable as business expenditure. (3) The Ld.CIT(A) erred in not appreciating that daring the period of lease the assessee got the right of peaceful enjoyment of land for the purpose of carrying on the business and not the legal ownership of the land and thus expenditure incurred is wholly and exclusively for the purpose of business and is allowable expenditure under the provision of income Tax Act. (4) The Ld. CIT(A) erred in not appreciating that the land in question was not acquired by the assessee and merely because the deed was registered the transaction in question would not assume a different character. The very registration of the lease deed as per the registration Act has not changed the ownership of the land.
ITA No. 1641/Del/2013 (5) The CIT(A) failed to appreciate that by obtaining the land on lease the capital structure of the assessee did not undergo any change. (6) The C1T(A) failed to appreciate that the land which has been leased out to the assessee did not cease to be belonging to the lessor and therefore by payment of this lease rent the assets of the assessee company had not increased because the land continued to be the land of the lessor. (7) The C1T(A) failed to appreciate that the very same expenditure has been allowed in respect of earlier assessment years under scrutiny assessment of the company and the facts (hiring the year arc same into to arid therefore, disallowance in this regard is against the rule of consistency. (8) The CIT(A) erred in upholding the addition of Rs. 1,30,107/- made as 0.5% of average of investment by invoking Section 14A r/w rule 8D without appreciating the fact the assessee company did not earn any dividend (Tax Free Income) during the year. (9) The assessee Craves your honour leave to add, delete or modify any grounds of appeal during the course or hearing.
2. Brief facts of the case are as under: Assessee filed its return of income on 28.12.2008 declaring a total income of Rs.80,49,710/-, under normal provisions and Rs.8,96,55,513/- under section 115 JB of the Act. The returns were processed under section 143(1) and notices under section 143(2) was issued on 07.08.2009. In response to notices issued representative of assessee attended assessment proceedings and furnished details in support of returns filed by assessee as well as in response to queries that were raised during the course of assessment. ITA No. 1779/Del/2013
3. Ld. AO observed that assessee is engaged in business of manufacturing of tools, dies and sheet metal components, assemblies and subassemblies. Ld. AO during assessment proceedings observed that assessee has made investments, in respect of which income earned does not form part of taxable income. Ld. AO therefore, show caused assessee, as to why disallowance under section 14A read with Rule 8D of the Act should not be made. In response to show cause, assessee filed written submissions dated 25.11.2010 on the basis which of assessing officer was satisfied that interest expenses amounting to be 5, 43, 76, 924/-being the indirect expenses were attributable for earning of such exempt income. Accordingly, he computed disallowance under section 14A read with Rule 8D of the Act amounting to Rs. 9, 14, 838/-.
4. Ld. AO further observed that assessee was claiming depreciation on leasehold land amounting to Rs.9,95, 661/- and for the purpose of income tax, the same was added in computation as amortization of leasehold land. Vide ordersheet entry dated 06.11.2010 assessee was asked to show cause as to why the said amount should not be disallowed. In response to the same, which assessee filed reply dated 25.11.2010, which has been examined by Ld. AO. He disallowed claim of amortization on ground that these are expenditure being nature and therefore, not allowable under section 37(1) of the Act. Ld. AO was of the opinion that assessee was driving enduring benefits by taking these land on lease over a period of ITA No. 1779/Del/2013 90 years and therefore, he held that expenses incurred is premium paid on amortization of leasehold land which is revenue in nature. 5. Aggrieved by the order of Ld. AO assessee preferred appeal before Ld. CIT(A) who confirmed additions made by Ld. AO. Aggrieved by order of Ld. CIT(A), assessee is in appeal before us now. 6. Ground No. 1 to 7 deals with disallowance of amortization charges of leasehold land. 7. Ld. Counsel submitted that assessee has not been conferred with legal ownership rights in respect of these lands, during the lease period. He submitted that assessee has not acquired these lands and was using these lands for carrying out its business activity for which rent was being paid. 8. Ld. Counsel further submitted that assessee had taken lease of three properties from the following leases: (1) JBM Industries Ltd., (2) Greater Noida Authority and (3) Maharashtra Development Corporation. He submitted that these agreement provide to lessee, peaceful and quiet possession of said land during unexpired lease period. He submitted that assessee could enjoy peaceful possession and use of these land only till lease expires. He thus, submitted that land in question was not acquired by assessee and merely because lease deed has been registered, transaction in question would not assume a different character. ITA No. 1779/Del/2013
On the contrary, Ld. DR submitted that assessee has paid huge premium in the nature of advance rent for future years and therefore, leasehold right on these properties are capital in nature. It has been submitted by Ld. DR that assessee has paid an amount of Rs. 2.04 crores as advance payment of rent for the period of lease. Further, it has been pointed out that in terms of agreement with MIDC amount has been adjusted towards premium payable by licensee.
Similarly agreement entered into with JBH Tools Ltd., assessee has paid an amount of Rs.33.29 lacs as premium and in the agreement entered into with Greater Noida Industrial Development Authority assessee has paid a premium of Rs.1.20 crores. 11. He thus, submitted that Ld. CIT(A) has rightly disallowed amortization expenses claimed by assessee in its return of income. 12. We have perused submissions advanced by both sides in the light of records placed before us. 13. Ld. Counsel has tried to impress upon this bench that payments made to lessor are in nature of advance rents. However, there is no material on record to show that assessee has made these payments as advance rent for future years to secure any reduction in rent payable for future years or for any other business consideration. We are, therefore, unable to appreciate arguments advanced by Ld. Counsel that these advances paid are towards advance rent. Even from the terms ITA No. 1779/Del/2013 of agreements, it is not clear as to whether advances paid has been adjusted against future rent or whether these are in the nature of security deposits which are refundable in nature on termination of agreements. Both parties before us have expressed their intention regarding issue being re-adjudicated by assessing officer de novo. Accordingly, we are inclined to set aside this issue to Ld. AO for fresh adjudication. Ld. AO shall investigate upon and take all necessary steps to ascertain true nature of alleged lease premium paid by assessee in the three agreement made as per law. Needless to say that assessee would cooperate with assessing officer and provide with all necessary relevant documents as called for by him. Ld. AO is hereby directed to decide issue as per law. In the result the grounds raised
by assessee stands allowed for statistical purposes. Ground No. 8
14. This ground raised by assessee is in relation to disallowance of expenditure under section 14A read with Rule 8D of the Act. It was contended before us that only those investments should be considered for taking value of investment, on which dividend has been earned. Ld. Counsel placed reliance upon decision of Hon’ble Delhi High Court in the case of Cheminvest Ltd. vs CIT reported in 378 ITR 33.
15. At the outset, Ld. DR does not object for issue being set aside to Ld. AO to decide it is in the light of decision of Hon’ble Delhi High Court in the case of Cheminvest Ltd., (supra). Accordingly, we are inclined to set aside this issue to Ld. AO ITA No. 1641/Del/2013 with a direction to recomputed disallowance under section 14A read with Rule 8D in light of ratio laid down by Hon’ble Delhi High Court in the case of Cheminvest Ltd., vs. CIT (supra). In the result appeal filed by assessee for the year under consideration stands statistically allowed. Assessment year 2009-10 ITA No. 1641/del/2013 and 1779/del/2013 16. These are cross appeals filed by assessee as well as revenue. Grounds raised by both sides are as under: ITA No. 1641/del/2013
1. On the facts and in the circumstances of the case, the CIT(A) had erred both on facts and in law in upholding and sustaining an illegal addition of Rs.4,51,375/- u/s 14A read with Rule 8D of the I T Rules and the same is liable to be deleted.
2. On the facts and in the circumstances of the case, the CIT(A) has erred in upholding the illegal addition of Rs.9,95,661/- made by the A O by disregarding the fact that the expenditure in question is of revenue nature incurred wholly and exclusively for the purpose of business and cannot be treated as capital expenditure nor as resulting in any enduring benefit to the appellant and the impugned addition contrary to the binding decisions of Courts cited before him cannot be sustained and is liable to be deleted.
3. The lower authorities had erred in passing the impugned orders to the extent of additions and disallowances made/sustained and to that extent the impugned orders are liable to be set aside and the claims of the appellant rightly made deserve to be allowed with consequential relief to the appellant, after hearing both sides.
ITA No. 1641/Del/2013 ITA No.1779/del/2013 1. Whether in the facts and circumstances of the case, the Ld. CIT(A) erred in deleting addition of Rs. 16532/- made by the AO on account of excess depreciation on computer peripherals? 2. Whether in the facts and circumstances of the case, the CIT(A) was justified in restricting the addition made by the A.O on account of the Sec. 14A r.wr. 8D from Rs. 45,53,081/- to Rs. 4,51,375/-.
The appellant craves leave to add, alter, amend or forgo any grounds(s) of the appeal raised above at the time of the hearing. (Departmental Appeal) 17. Assessee filed its return of income declaring Rs.11,06,56,794/- under normal provisions and Rs.90,83,97,814/- under section 115JB on 29.09.2009. The return was processed under section 143(1) and statutory notices under section 143(2) and 142(1) were issued. In response to notices representatives of assessee that assessment proceedings and furnished details support of return filed by assessee as well as in response to varies queries during the course of assessment proceedings. Ground No. 1 18. Ld. AO observed that assessee had claimed excess depreciation at rate of 60% on computer peripherals, which does not come under definition of computer as alleged by him. He accordingly, calculated excess depreciation claimed at Rs.16,532/- and disallowed the same in the hands of assessee. ITA No. 1779/Del/2013
Aggrieved by additions made by Ld. AO assessee preferred an appeal before Ld. CIT(A), allow depreciation claimed by relying upon decision of this Tribunal in the case of Howarth India Pvt. Ltd., vs. DCIT reported in 140 TTJ 446. By order of Ld. CIT(A), revenue is in appeal before us now.
At the outset, it has been submitted that issue stands covered by decision of Hon’ble Delhi High Court in the case of CIT vs. BSES Yamuna Power Ltd., reported in 358 ITR 47 which has been followed in CIT vs. Orient Ceramics & Industries Ltd., reported in 358 ITR 49. 21. Ld. DR is unable to place on record any contrary decision of Hon’ble Supreme Court. He places reliance upon order of Ld. AO. 22. We, therefore, respectfully following the decisions of Hon’ble Delhi High Court in the case of CIT vs. BSES Yamuna Power Ltd (supra) and Orient Ceramics & Industries Ltd (supra) are inclined to uphold findings of Ld. CIT(A). Accordingly the ground raised
by revenue stands dismissed. Ground No. 2
23. This ground raised by revenue is against order of Ld. CIT(A) restricting addition on account of Sec. 14A read with Rule 8D Rs.4,51,375/-.
24. We have already taken a view for assessment year 2008- 09 hereinabove, wherein this issue has been set aside to Ld. ITA No. 1779/Del/2013 AO to re-compute disallowance in view of decision of Hon’ble Delhi High Court in the case of Cheminvest Ltd., vs CIT reported in 378 ITR 33.
25. Accordingly, issue of section 14A read with Rule 8D for year under consideration is also set aside to Ld. AO with a similar direction to re-compute disallowance of expenditure under section 14A read with Rule 8D as per ratio laid down by Hon’ble Delhi High Court in the case of Cheminvest Ltd., vs CIT reported in 378 ITR
33. Accordingly this ground raised by revenue stands allowed for statistical purposes In the result appeal filed by the revenue stands partly allowed. ITA No. 1641/del/2013 (Assessee’s appeal)
26. The only issue raised by assessee in this appeal is in respect of partial disallowance confirmed by Ld. CIT(A) under section 14 A read with Rule 8D.
27. As we have set aside entire issue in the appeal filed by revenue to Ld. AO for re-computing disallowance as per ratio laid down by Hon’ble Delhi High Court in the case of Cheminvest Ltd., vs CIT reported in 378 ITR 33, this ground raised by assessee is also set aside. In the result appeal filed by assessee stands allowed for statistical purposes. In the result appeal filed by assessee for assessment year 2008-09 and 2009-10 stands allowed for statistical purposes ITA No. 1641/Del/2013 ITA No. 1779/Del/2013 and appeal filed by revenue for assessment year 2009-10 stands partly allowed. Order pronounced in the open court on 13th April, 2017.