DCIT-CC-4(2), , MUMBAI vs BIRLA GROUP HOLDINGS PVT. LTD, MUMBAI

Income Tax Appellate Tribunal, MUMBAI BENCH “B” MUMBAI

Before: SHRI OM PRAKASH KANT & SHRI RAHUL CHAUDHARY

For Appellant: Mr. Ashok Kumar Ambastha, DR

For Respondent: Mr. Ashok Kumar Ambastha, DR

Pronounced: 26/03/2024

PER OM PRAKASH KANT, AM

This appeal by the Revenue is directed against order dated 25.05.2023 passed by the Ld. Commissioner of Income-tax (Appeals) – 52, Mumbai [in short ‘the Ld. CIT(A)’] for assessment year 2018-19, raising following grounds:

"The Ld. CIT(A) has erred in restricting the disallowance u/s 14A to Rs. 17,49,706/- by ignoring the

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provisions of provisions of section 14A r.w.r. 8D(2) which prescribes a section 14A r.w.r. 8D(2) which prescribes a methodology for disallowance to be made u/s. 14A." methodology for disallowance to be made u/s. 14A." methodology for disallowance to be made u/s. 14A." 2. Briefly stated, facts of the case are that the assessee a non Briefly stated, facts of the case are that the assessee a non Briefly stated, facts of the case are that the assessee a non- banking financial company (NBFC) was engaged in loan financing banking financial company (NBFC) was engaged in loan financing banking financial company (NBFC) was engaged in loan financing and long term investment in share and long term investment in shares and securities etc. The return of s and securities etc. The return of income filed by the assessee was selected for scrutiny assessment income filed by the assessee was selected for scrutiny assessment income filed by the assessee was selected for scrutiny assessment and statutory notices under the and statutory notices under the Income-tax Act, 1961 ( in short the , 1961 ( in short the ‘Act’) were issued and complied with. During the assessment, the were issued and complied with. During the assessment, the were issued and complied with. During the assessment, the Assessing Officer noted that assessee had earned total dividend Assessing Officer noted that assessee had earned total dividend Assessing Officer noted that assessee had earned total dividend income income of of Rs.5,05,59,651/- Rs.5,05,59,651/ from from the the investment investment of of Rs.3,76,16,19,030/- in equity and preference shares. Out of total in equity and preference shares. Out of total dividend earned, amount of Rs.3,83,23,044/ amount of Rs.3,83,23,044/- was claimed by the was claimed by the assessee as exempt from tax u/s 10(34/35) of the Act. The assessee assessee as exempt from tax u/s 10(34/35) of the Act. The assessee assessee as exempt from tax u/s 10(34/35) of the Act. The assessee computed suo-motu disallowance of Rs.3,13,59,987/ disallowance of Rs.3,13,59,987/- under Rule 8D of income-tax Rules, 1962( in short the ‘Rules’) tax Rules, 1962( in short the ‘Rules’) . The said tax Rules, 1962( in short the ‘Rules’) computation of the assessee is reproduced assessee is reproduced, for ready reference for ready reference, as under:

Rule Particulars Particulars Rs. Rs. Rs. Restricted to Rule Amount Amount of of 8D(2)(i) expenditure expenditure directly directly relating relating to to income income exempted exempted from from tax tax already disallowed in already disallowed in 2,95,12,204 2,95,12,204 2,95,12,204 2,95,12,204 14A 60,000 Interest Interest Expenses Expenses (Net) Other Expenses Other Expenses Rule 1% of annual average 1% of annual average As per 2,87,22,814 2,87,22,814 8D(2)(ii) of of the the monthly monthly working

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income average of the income average of the attached opening and closing opening and closing As balances of the value balances of the value investment, investment, income income from at which does from at which does As per not or shall not form not or shall not form working part of total income. part of total income. attached 17,87,783 Restricted to salary Restricted to salary and other expenses and other expenses debited statement of debited statement of P&L Total Total disallowance disallowance 3,13,59,987 u/s 14A r.w.s. 8D u/s 14A r.w.s. 8D 2.1 The assessee restricted the disallowance under Rule 8D(2)(ii) assessee restricted the disallowance under Rule 8D(2)(ii) assessee restricted the disallowance under Rule 8D(2)(ii) up to the salary and other expenses debited into Profit and loss up to the salary and other expenses debited into Profit and loss up to the salary and other expenses debited into Profit and loss account amounting to Rs.17,87,783/ account amounting to Rs.17,87,783/- but the Assessing Officer Assessing Officer rejected the claim of the assessee restricting the disallowance under rejected the claim of the assessee restricting the disallowance under rejected the claim of the assessee restricting the disallowance under Rule 8D(2)(ii) of the Rules Rules to Rs.17,87,783/-.

On further appeal before the Ld. CIT(A), the assessee claimed On further appeal before the Ld. CIT(A), the assessee claimed On further appeal before the Ld. CIT(A), the assessee claimed that in the profit and loss account under the head other expenses that in the profit and loss account under the head othe that in the profit and loss account under the head othe assessee had claimed only expenditure of Rs.20,08,975/- and assessee had claimed only expenditure of Rs.20,08,975/ assessee had claimed only expenditure of Rs.20,08,975/ expenses of Rs.6,31,290/ expenses of Rs.6,31,290/- under the head ‘employee benefit under the head ‘employee benefit expenses’ thus totaling to Rs.26,40,265/ expenses’ thus totaling to Rs.26,40,265/- whereas out of this the whereas out of this the assessee has already disallowed other expenses of Rs.60,000/- assessee has already disallowed other expenses of Rs.60,000/ assessee has already disallowed other expenses of Rs.60,000/ while working out disallowance under Rule 8D(2)(i) of the Rules and while working out disallowance under Rule 8D(2)(i) of the Rules and while working out disallowance under Rule 8D(2)(i) of the Rules and disallowance of Rs.2,14,718/ disallowance of Rs.2,14,718/- has been made while computing the has been made while computing the profit and gains from the business which includes maintenance profit and gains from the business which includes maintenance profit and gains from the business which includes maintenance charges of Rs.1,87,243/ charges of Rs.1,87,243/-, provsion for gratuity amounting to for gratuity amounting to Rs.21,923/- and property tax amounting to Rs.5,552/ and property tax amounting to Rs.5,552/- . According and property tax amounting to Rs.5,552/

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to the assessee under Rule 8D(2)(ii), the disallowance cannot exceed to the assessee under Rule 8D(2)(ii), the disallowance cannot exceed to the assessee under Rule 8D(2)(ii), the disallowance cannot exceed Rs.17,49,706/-. [expenditure expenditure of Rs.26,40,265/- less Rs.9,12,482/ less Rs.9,12,482/- (Rs.60,000+2,14,718+6,37,764)]. The assessee also submitted that (Rs.60,000+2,14,718+6,37,764)]. The assessee also submi (Rs.60,000+2,14,718+6,37,764)]. The assessee also submi in earlier year also disallowance was restricted by the Assessing in earlier year also disallowance was restricted by the Assessing in earlier year also disallowance was restricted by the Assessing Officer as under:

S. No. Assessment Assessment Order Disallowance Disallowance Disallowance Year computed computed as as restricted as per order per order 01. 2013-14 u/s 143(3) 1,01,01,915/ 1,01,01,915/- 4,39,084/- dated 31.12.2015 02. 2014-15 u/s 143(3) 1,01,00,653/ 1,01,00,653/- 5,60,170/- dated 30.11.2016 03. 2015-16 u/s 143(3) 1,06,51,065/ 1,06,51,065/- 9,04,302/- dated 31.12.2017 04. 2016-17 u/s 143(3) 1,13,93,453/ 1,13,93,453/- 9,55,516/- dated 24.12.2018 05. 2017-18 u/s 143(3) 2,47,26,872/ 2,47,26,872/- 11,72,394/- dated 20.12.2019 3.1 The Ld. CIT(A) after considering the submission of the The Ld. CIT(A) after considering the submission of the The Ld. CIT(A) after considering the submission of the assessee deleted the addition observing as under: assessee deleted the addition observing as under:

“4.4. I have considered the facts of the case. The “4.4. I have considered the facts of the case. The “4.4. I have considered the facts of the case. The appellant has suo appellant has suo-moto disallowed interest expenditure moto disallowed interest expenditure of Rs.2,95,12, of Rs.2,95,12,204/- as directly relatable interest as directly relatable interest expenditure. According to the appellant, the balance expenditure. According to the appellant, the balance expenditure. According to the appellant, the balance interest expenditure is directly relatable to interest interest expenditure is directly relatable to interest interest expenditure is directly relatable to interest earning activities, in its case. Besides Rs.60,000/ earning activities, in its case. Besides Rs.60,000/ earning activities, in its case. Besides Rs.60,000/- has been disallowed as directly relatable other expenses. been disallowed as directly relatable other expenses. been disallowed as directly relatable other expenses. In all, Rs.2,95,72,204/ all, Rs.2,95,72,204/- has been identified by the has been identified by the appellant as directly relatable expenses in terms of Rule appellant as directly relatable expenses in terms of Rule appellant as directly relatable expenses in terms of Rule 8D(2)i) and has been disallowed in the Return of Income 8D(2)i) and has been disallowed in the Return of Income 8D(2)i) and has been disallowed in the Return of Income at Sr. No. 8 of Schedule BP. The AO has made further at Sr. No. 8 of Schedule BP. The AO has made further at Sr. No. 8 of Schedule BP. The AO has made further disallowance of Rs.2,87,22,814/ disallowance of Rs.2,87,22,814/- by applying Rule pplying Rule

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8D(2)(ii), which according to the appellant should be 8D(2)(ii), which according to the appellant should be 8D(2)(ii), which according to the appellant should be restricted to Rs. 17,49,706/ restricted to Rs. 17,49,706/- being the other expenses being the other expenses debited in the P&L A/c. The appellant has made the debited in the P&L A/c. The appellant has made the debited in the P&L A/c. The appellant has made the submission before the AO vide letter dated 15.02.2021 submission before the AO vide letter dated 15.02.2021 submission before the AO vide letter dated 15.02.2021 and has also reiterated this and has also reiterated this position in its submission position in its submission before before before the the the undersigned undersigned undersigned dated dated dated 01.03.2023. 01.03.2023. 01.03.2023. The The The appellant has given detailed working as to how the appellant has given detailed working as to how the appellant has given detailed working as to how the other expenses of Rs. 17,49,706/ other expenses of Rs. 17,49,706/- has been arrived at. has been arrived at. The appellant has also pointed out that its similar claim The appellant has also pointed out that its similar claim The appellant has also pointed out that its similar claim had been favourably had been favourably considered by the AO in the considered by the AO in the immediately preceding year, i.e. A.Y. 2017 immediately preceding year, i.e. A.Y. 2017-18. Hence, 18. Hence, the disallowance u/s.14A r.w.r. 8D is restricted to Rs. the disallowance u/s.14A r.w.r. 8D is restricted to Rs. the disallowance u/s.14A r.w.r. 8D is restricted to Rs. 17,49,706/- as requested by the appellant. The balance as requested by the appellant. The balance disallowance stands deleted. These grounds are partly disallowance stands deleted. These grounds are partly disallowance stands deleted. These grounds are partly allowed.” 4. Before Before Before us, us, us, the the the Ld. Ld. Ld. Departmental Departmental Departmental Representative Representative Representative (DR) (DR) (DR) submitted that under Rule 8D(2) two types of disallowance have submitted that under Rule 8D(2) two types of disallowance have submitted that under Rule 8D(2) two types of disallowance have been specified firstly firstly, the amount of expenditure directly related to , the amount of expenditure directly related to the exempted income under Rule 8D(2)(i) of the Rules, secondly, an the exempted income under Rule 8D(2)(i) of the Rules, the exempted income under Rule 8D(2)(i) of the Rules, amount equal to 1% of the annual average of the monthly average of amount equal to 1% of the annual average of the monthly average of amount equal to 1% of the annual average of the monthly average of the opening and closing balance of the value of the investment in the opening and closing balance of the value of the investment in the opening and closing balance of the value of the investment in the exempted yielding investment. But in the proviso to said Rule it the exempted yielding investment. But in the proviso to said Rule it the exempted yielding investment. But in the proviso to said Rule it is specified that amount referred in clause 8D(2)(i) and 8D(2)(ii) is specified that amount referred in clause 8D(2)(i) a is specified that amount referred in clause 8D(2)(i) a shall not exceed total expenditure claimed by the assessee. The Ld. shall not exceed total expenditure claimed by the assessee. The Ld. shall not exceed total expenditure claimed by the assessee. The Ld. DR submitted that in the case of the assessee as per the profit and DR submitted that in the case of the assessee as per the profit and DR submitted that in the case of the assessee as per the profit and loss account, total e total expenses of Rs.16,88,26,645/ xpenses of Rs.16,88,26,645/- have been claimed and therefore, the disallowance claimed and therefore, the disallowance, following Rule 8D made by ing Rule 8D made by the Assessing Officer which is only Rs.5,82,95,018/- ,being not the Assessing Officer which is only Rs.5,82,95,018/ the Assessing Officer which is only Rs.5,82,95,018/ exceeding the total expenditure of Rs.16,88,26,645/ exceeding the total expenditure of Rs.16,88,26,645/- - claimed by the assessee ,therefore, the disallowance computed as per the therefore, the disallowance computed as per the therefore, the disallowance computed as per the provisions of Rule 8D(2) of the Rules provisions of Rule 8D(2) of the Rules should be upheld e upheld.

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We have heard rival submission of the parties and perused the We have heard rival submission of the parties and perused the We have heard rival submission of the parties and perused the relevant material on record. In the case the assessee has earned relevant material on record. In the case the assessee has earned relevant material on record. In the case the assessee has earned exempted income of Rs.38,32,30,044/ exempted income of Rs.38,32,30,044/- from investment in equity from investment in equity and preference shares amounting to Rs.3,76,16,19,030/- which has and preference shares amounting to Rs.3,76,16,19,030 and preference shares amounting to Rs.3,76,16,19,030 been claimed as exempted from the income been claimed as exempted from the income-tax. The assessee itself tax. The assessee itself has computed disallowance u/s 14A invoking Rule 8D(2), firstly has computed disallowance u/s 14A invoking Rule 8D(2) has computed disallowance u/s 14A invoking Rule 8D(2) under 8D(2)(i), the assessee has computed disallowance (i), the assessee has computed disallowance amounting (i), the assessee has computed disallowance to Rs.2,95,72,204/-, secondly, under Rule 8D(2)(i , secondly, under Rule 8D(2)(ii) the assessee , secondly, under Rule 8D(2)(i computed computed disallowance disallowance amounting amounting to to Rs.2,87,22,814/- Rs.2,87,22,814/ but restricted this disallowance to restricted this disallowance to Rs.17,87,783/- invoking the proviso invoking the proviso that disallowance cannot exceed the expenses claimed whereas that disallowance cannot exceed the expenses claimed whereas that disallowance cannot exceed the expenses claimed whereas according to the Assessing Officer total disallowance under Rule according to the Assessing Officer total disallowance u according to the Assessing Officer total disallowance u 8D(2)(i) and 8D(2)(ii) works out to Rs.5,82, 8D(2)(i) and 8D(2)(ii) works out to Rs.5,82,95,018/ 95,018/- which is not exceeding the total expenses of Rs.16,88,26,645/ exceeding the total expenses of Rs.16,88,26,645/- claimed by the assessee in profit and loss account. Therefore, the issue in dispute assessee in profit and loss account. Therefore, the issue in dispute assessee in profit and loss account. Therefore, the issue in dispute in the case is the amount under Rule 8D(2)(ii) in the case is the amount under Rule 8D(2)(ii) which according to which according to computation come to Rs.2,87,22,814/ computation come to Rs.2,87,22,814/- however, the assessee has however, the assessee has restricted the same to Rs.17,87,783/ restricted the same to Rs.17,87,783/- invoking the proviso invoking the proviso to Rule 8D. The assessee has considered other expenses he assessee has considered other expenses of Rs.20,08,975/ of Rs.20,08,975/- and employee benefit expenses of Rs.6,31, and employee benefit expenses of Rs.6,31,290/ 290/-, totaling to Rs.26,40,265/- for the purpose of expenses claimed after reducing . the purpose of expenses claimed after reducing . the purpose of expenses claimed after reducing . three amounts, firstly firstly, Rs.60,000/- already disallowed under Rule already disallowed under Rule 8D(2)(i) of the Rules, 8D(2)(i) of the Rules, secondly Rs.2,14,718/- which was already which was already disallowed while computing the business profit which includes disallowed while computing the business profit which includes disallowed while computing the business profit which includes maintenance charges of Rs.1,87,243/ maintenance charges of Rs.1,87,243/- provision for gratuity of provision for gratuity of

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Rs.21,923/- and property tax of Rs.5,552/ and property tax of Rs.5,552/-, thirdly thirdly, the amount of rent paid for sub-letting of th letting of the property amounting to Rs.6,26,764/ e property amounting to Rs.6,26,764/- out of other expenses of Rs.20,08,975/ out of other expenses of Rs.20,08,975/-. The contention of the . The contention of the assessee is that those expenses have been excluded out of assessee is that those expenses have been excluded assessee is that those expenses have been excluded expenses being specifically not related to exempted income. In this expenses being specifically not related to exempted income. In this expenses being specifically not related to exempted income. In this manner, manner, the the assessee assessee has has restricted re stricted the the disallowance disallowance to to Rs.17,87,783/-. Since, the issue in dispute is regarding what is the . Since, the issue in dispute is regarding what is the . Since, the issue in dispute is regarding what is the amount to the extent of the disallowance should be restricted amount to the extent of the disallowance should be restricted amount to the extent of the disallowance should be restricted invoking to proviso to Rule 8D, i invoking to proviso to Rule 8D, it is relevant to reproduce the said t is relevant to reproduce the said Rule along with proviso as Rule along with proviso as under: 8D. (1) Where the Assessing Officer, having regard to the accounts of the (1) Where the Assessing Officer, having regard to the accounts of the (1) Where the Assessing Officer, having regard to the accounts of the assessee of a previous year, is not satisfied with assessee of a previous year, is not satisfied with (a) the correctness of the claim of expenditure made by the assessee; or the correctness of the claim of expenditure made by the assessee; or the correctness of the claim of expenditure made by the assessee; or (b) the claim made by the assessee that no the claim made by the assessee that no expenditure has been incurred, expenditure has been incurred, in relation to income which does not form part of the total income under in relation to income which does not form part of the total income under in relation to income which does not form part of the total income under the Act for such previous year, he shall determine the amount of the Act for such previous year, he shall determine the amount of the Act for such previous year, he shall determine the amount of expenditure in relation to such income in accordance with the provisions of expenditure in relation to such income in accordance with the provisions of expenditure in relation to such income in accordance with the provisions of sub-rule (2). [ (2) The expenditure in relation to income which does not form part of the total (2) The expenditure in relation to income which does not form part of the total (2) The expenditure in relation to income which does not form part of the total income shall be the aggregate of following amounts, namely: income shall be the aggregate of following amounts, namely: (i) the amount of expenditure directly relating to income which does not the amount of expenditure directly relating to income which does not the amount of expenditure directly relating to income which does not form part of total income; and form part of total income; and (ii) an amount equal to one per cent of the annual average of the monthly an amount equal to one per cent of the annual average of the monthly an amount equal to one per cent of the annual average of the monthly average of the opening and closing balances of the value of investment, average of the opening and closing balances of the value of investment, average of the opening and closing balances of the value of investment, income from which does not or shall not form part of total income : income from which does not or shall not form part of total income : income from which does not or shall not form part of total income : Provided that the amount referred to in that the amount referred to in clause (i) and clause (ii) clause (i) and clause (ii) shall not exceed the total expenditure claimed by the assessee.] shall not exceed the total expenditure claimed by the assessee shall not exceed the total expenditure claimed by the assessee 5.1 On perusal of the above proviso below the Rule 8D On perusal of the above proviso below the Rule 8D On perusal of the above proviso below the Rule 8D, we find that it says that disallowance computed under Rule 8D(2)(i) and it says that disallowance computed under Rule 8D(2)(i) and it says that disallowance computed under Rule 8D(2)(i) and 8D(2)(ii) shall not exceed exceed total expenditure claimed by the assessee. enditure claimed by the assessee.

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In the case in hand, the assessee has filed the copy of the profit and In the case in hand, the assessee has filed the copy of the profit and In the case in hand, the assessee has filed the copy of the profit and loss account which is reproduced as under: loss account which is reproduced as under:

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5.2 On perusal of the above, profit and loss account it is evident On perusal of the above, profit and loss account it is evident On perusal of the above, profit and loss account it is evident that assessee has claimed total expense that assessee has claimed total expenses of Rs.16,88,26,645/ s of Rs.16,88,26,645/- which is much higher than disallowance of Rs.2,93,72,204/- under which is much higher than disallowance of Rs.2,93,72,204/ which is much higher than disallowance of Rs.2,93,72,204/ Rule 8D(2)(i) and disallowance of Rs.2,87,22,814/- under Rule Rule 8D(2)(i) and disallowance of Rs.2,87,22,814/ Rule 8D(2)(i) and disallowance of Rs.2,87,22,814/ 8D(2)(ii) totaling to Rs.5,82,95,018/ 8D(2)(ii) totaling to Rs.5,82,95,018/-. The provisions of the Rule are . The provisions of the Rule are amply clear that for the purpose of amply clear that for the purpose of restricting the disallowance total restricting the disallowance total expenditure claimed by the assessee has to be seen whereas the expenditure claimed by the assessee has to be seen whereas the expenditure claimed by the assessee has to be seen whereas the assessee has taken into consideration only two heads of the assessee has taken into consideration only two heads of the assessee has taken into consideration only two heads of the expenses which are firstly, other expenses amounting to expenses which are other expenses amounting to and secondly, employee benefit expenses of Rs.2,08,975/- and fit expenses of Rs.6,26,290/- . The assessee has not considered the major he assessee has not considered the major he assessee has not considered the major expenses of the finance cost of Rs.16,09,02,396/ expenses of the finance cost of Rs.16,09,02,396/- for the purpose of for the purpose of proviso to Rule 8D. T . The interpretation of the assessee of restricting he interpretation of the assessee of restricting disallowance only under Rule 8D(2)(ii) to t disallowance only under Rule 8D(2)(ii) to the extent of expenses in he extent of expenses in the nature of the administrative cost is not emanating from the the nature of the administrative cost is not emanating from the the nature of the administrative cost is not emanating from the clear language of the proviso to Rule 8D which restrict the clear language of the proviso to Rule 8D which restrict the clear language of the proviso to Rule 8D which restrict the disallowance disallowance disallowance under under under Rule Rule Rule 8D(2)(i) 8D(2)(i) 8D(2)(i) and and and 8D(2)(ii) 8D(2)(ii) 8D(2)(ii) upto total expenditure claimed by the assessee. In view of the above expenditure claimed by the assessee. In view of t expenditure claimed by the assessee. In view of t discussion, we reject the contention of the Ld. counsel for the discussion, we reject the contention of the Ld. counsel discussion, we reject the contention of the Ld. counsel assessee and set aside the finding of the Ld. CIT(A) on the issue in assessee and set aside the finding of the Ld. CIT(A) on t assessee and set aside the finding of the Ld. CIT(A) on t dispute and restore the finding of the Assessing Officer on the issue the finding of the Assessing Officer on the issue the finding of the Assessing Officer on the issue in dispute. The grounds of appeal of the Revenue are accordingly in dispute. The grounds of appeal of the Revenue are accordingly in dispute. The grounds of appeal of the Revenue are accordingly allowed.

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In the result, the appeal of the Revenue is allowed. In the result, the appeal of the Revenue is allowed. In the result, the appeal of the Revenue is allowed.

Order pronounced in the open Court on nounced in the open Court on 26 26/03/2024. Sd/ Sd/- Sd/ Sd/- (RAHUL CHAUDHA (RAHUL CHAUDHARY) (OM PRAKASH KANT OM PRAKASH KANT) JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER Mumbai; Dated: 26/03/2024 Rahul Sharma, Sr. P.S. Copy of the Order forwarded to Copy of the Order forwarded to : 1. The Appellant 2. The Respondent. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. BY ORDER, BY ORDER, //True Copy// (Assistant Registrar) (Assistant Registrar) ITAT, Mumbai ITAT, Mumbai

DCIT-CC-4(2), , MUMBAI vs. BIRLA GROUP HOLDINGS PVT. LTD, MUMBAI