JT. CIT (OSD) - 2 (3)(1), MUMBAI vs. TATA SONS PRIVATE LTD., MUMBAI

आदेश/ORDER PER VIKAS AWASTHY, JM: These cross appeals are directed against the order of Commissioner of Income Tax(Appeals)-58, Mumbai [in short ‘the CIT(A)’] dated 31/12/2018, for the Assessment Year 2012-13. 2. The assessee in appeal has raised as many as 11 grounds assailing the order of CIT(A). The grounds No.1 to 4 in assessee’s appeal are in respect of Transfer Pricing adjustment and ground No. 5 to 11 are in respect of additions/ disallowances made under various heads. 3. Ms. Arati Vissanji appearing on behalf of the assessee at the outset made a statement at Bar that on instructions from the assessee she is not pressing grounds No.1 to 3 and ground No.11 of the appeal. Thus, in view of the above statement made by ld.Counsel for the assessee aforesaid grounds are dismissed as not pressed. Ground No.4 – Transfer Pricing Adjustment on sale of shares of Tata Global Beverages Group Ltd. : 4. The Ld.Counsel for the assessee narrating facts germane to the issue submitted that during the period relevant to the assessment year under appeal, the assessee had sold shares of Tata Global Beverages Group Ltd.(TGBGL), an overseas subsidiary of the assessee to Tata Global Beverages Capital Ltd. (TGBCL). TGBGL is an unlisted company incorporated in the United Kingdom. The assessee sold 10 million shares of the said company for a consideration of GBP 25,66,00,000. The shares have been sold based on valuation carried out by an independent valuer. She referred to the valuation report at page 4 to 54 of the paper book. The Ld.Counsel for the assessee

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pointed that for valuation of shares the valuer has adopted multiple methods and has assigned weightage to each of the method for valuation analysis. She further submitted that Comparable Company Multiple(CCM) method was applied by the valuer based on one year and two year forward estimates and has assigned 50% weightage to this method. The valuer has also applied Discounted Cash Flow(DCF) method and has assigned 50% weightage to the same. Thus, the valuation of shares is based on scientific basis. The ld.Counsel for the assessee further asserted that the valuation is in accordance with Master Circular No.11/2011-12 dated 01/07/2011 issued by the RBI. The said Circular is at page 65 of the paper book. The Ld.Counsel for the assessee referring to the said RBI Circular contend that where shares are not listed on the Stock Exchange and shares are disinvested by private arrangements, the fair value of the shares should be based on the latest audited financial statements of the Wholly Owned Subsidiary(WOS) and certified by the Chartered Accountant. The Transfer Pricing Officer (TPO) has rejected assessee’s method of valuation. The TPO applied DCF method. The TPO has placed reliance on the RBI Circular No.12/15, which refers to foreign investment in India, hence, does not apply to the assessee’s case. The Ld.Counsel for the assessee further submitted that the TPO has rejected the comparables. The TGBGL is engaged in Tea business. The assessee selected comparables which are primarily engaged in beverages. The comparables selected by the assessee are : (i)Saralee Corporation; (ii) Peels Coffee & Tea Inc; and (iii) Unilever PLC. No valid reason has been given by the TPO for rejecting the Comparables selected by the assessee. 5. Per contra, Shri Manoj Kumar representing the Department, supporting the order of TPO and the CIT(A) submitted that the assessee has followed

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hybrid method of valuation of shares which is not permissible. The Transfer Pricing provisions do not distinguish between inbound and outbound investments. The method which provides most reliable estimate/value should be adopted. In the present case DCF is the most reliable method for valuation of shares. The TPO has adopted the same for valuation of shares. Referring to the findings of TPO in para 9.7 and 9.8 of the TPO order he submitted that there are fundamental errors in valuation report, therefore, the valuation report has been has been rightly rejected by the TPO/CIT(A). 6. We have heard the submissions made by rival sides and have examined the orders of authorities below. During the period relevant to assessment year under appeal, the assessee sold 10 million Equity Shares in TGBGL an unlisted registered company in UK to TGBCL one of assessee’s group company. The shares were sold to TGBCL @ GBP 2.56 per share with a total consideration of GBP2,56,60,000/- The shares were sold at a price based on a valuation report. The said report is available at pages 4 to 54 of the paper book. For the valuation of shares, the Valuer adopted combination of Comparable Companies Multiple (CCM) method and Discounted Cash Flow (DCF) method. The Valuer assigned 50% weightage to CCM method and 50% weightage to DCF method. The valuation of shares as per report is tabulated as under: Valuation analysis for computing equity value of TGBCL as at March 2011(GBP Million) Valuation methodology Weights Equity Value Comparable Companies’ Multiple Method (Using projected FY 30% 513.0 2012 financial) Comparable Companies’ Multiple Method (Using projected FY 20% 588.9 2013 financial) Discounted Cash Flow method 50% 663.1 Assets Value method 0% 293.7 Equity Value 603.2 Number of equity shares (in million) (on a fully diluted basis as 235.1

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informed to us by the Management) Value per ordinary share (GBP/share) 2.56 The case of the assessee is that the valuation of unlisted shares of the overseas company is in accordance with RBI Master Circular No.11/2011-12 dated 01/07/2011, hence, should be accepted. The TPO rejected assessee’s method of valuation inter-alia questioning hybrid method adopted by the Valuer instead of pure DCF method as prescribed under Income Tax Rules and raising objections to selection of comparable companies under CCM method. The TPO held that value of shares should have been determined in accordance with DCF method. The TPO accordingly applied DCF method for the valuation of share and made adjustment of Rs.35,00,07,909/-. 7. What is relevant in Transfer Pricing analysis is determination of ALP of an international transaction by applying the most appropriate method prescribed under section 92C of the Income Tax Act, 1962 (herein after referred to as ‘the Act’). If none of the five methods as specified in Section 92C of the Act applies, than the ‘other method’ has to be applied. The ‘other method’ for determination of ALP has been specified in Rule 10AB of the Income Tax Rules, 1962 (herein after referred to as ‘the Rules’). Rule 10AB, as was applicable to Assessment Year under appeal, reads as under: “10AB. For the purposes of clause (f) of sub-section (1) of section 92C, the other method for determination of the arms’ length price in relation to an international transaction shall be any method which takes into account the price which has been charged or paid, or would have been charged or paid, for the same or similar uncontrolled transaction, with or between non-associated enterprises, under similar circumstances ,considering all the relevant facts.” The valuation of shares by an independent Valuer falls in the category of the ‘Other Method’. The assessee transferred shares at a rate determined by the

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Valuer. Generally, such valuation and the transaction based thereon are not to be disregarded, unless the valuation is based on patently wrong approach or assumptions or there is fundamental flaw in the valuation. In transfer pricing mechanism there is no concept of valuation based on RBI Circular for the purpose of determination of ALP. Valuation made under any such Circular at the best be considered under the ‘Other Method’, if valuation cannot be made under any of the approved methods specified u/s. 92C of the Act. As per RBI Circular (supra), where shares of an unlisted company are disinvested in a private arrangement, the share price should not be less than the value certified by a Chartered Accountant/Certified Public Accountant based on the latest Audited Financial Statement of the wholly owned subsidiary (WOS). It is an undisputed fact that TGBGL is a WOS of the assessee, the shares of TGBGL are sold to TGBCL in a private arrangement. A perusal of the valuation report dated 17/11/2011 reveals that valuation analysis of shares of TGBCL is based on Audited Financial Statement as on 31/03/2011. The report has been certified by a Chartered Accountant. Thus, all the mandatory conditions set out in RBI Circular (supra) are duly complied. 8. The Valuers in Section 5 of the report (para 5.2) have pointed certain limitations in selection of comparable companies for the purpose of applying CCM method. The relevant extract of the practical difficulties highlighted by the Valuer are as under: “ Practical difficulties that may be faced  No or very few sufficiently comparable companies.  No or very few listed/recent transactions history in sufficiently comparable companies.

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 Lack of availability of the credible data about recent transaction in sufficiently comparable companies.” A list of comparable companies selected for the purpose of analysis under CCM method is given in para 1.7 of the report. The gist of comparables and there business activities is reproduced herein under: a. Sara Lee Corporation (Sara Lee) is a global manufacturer and marketer of consumer products. It derived 40.7% from the business of beverage segment which sells coffee and tea products. b. Peets coffee & Tea Inc., is a specialty coffee roaster and distributor of fresh roasted whole bean coffee. c. Unilever PLC is a supplier of fast moving consumer goods. It derives only 19.4% of its revenue from icecream and beverages. d. Associated British Foods PLC is engaged in the processing and manufacture of food worldwide. It derived 33.7% of its revenues from the grocery segment. e. The J.M. Smucker Company is a marketer and manufacturer of fruit spreads, retail packaged coffee etc. It derived 40% of its revenues from coffee products. f. Caribou Coffee Company, Inc. is engaged in operating coffeehouses in the United States. g. Tata Global Beverages Limited [holding company]. h. Tata Coffee Limited is engaged in growing of coffee, pepper, tea and other plantation crops. i. Strauss Group Limited is engaged in the production of branded beverages, fresh foods, instant coffee and snacks. It derived 51.6% of its revenues from the coffee segment.

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When comparable companies are examined in the light of difficulties pointed by the Valuer, the study makes it obvious that the comparables selected lack comparability or had scanty information under beverages segment. Some of the companies selected are not even engaged in the business of beverages let alone tea segment. Some of the companies that have business under beverage segment have substantially low contribution to the total revenue of business. Despite aforesaid handicap in selection of comparable companies, the Valuer gave 50% weightage to CCM method. Selection of comparables is key to the acceptable valuation under CCM method. 9. In our considered view the objection of the TPO against application of hybrid method for valuation of shares is devoid of merit. As long as valuation of shares is based on accepted method(s), single or combination of methods and justifiable reasons are given for allocating weightage for each of the method adopted after factoring limitations, the valuation should be accepted. In the instant case, the TPO has rejected the valuation report highlighting fundamental flaws in valuation of shares under CCM method. The TPO inter- alia pointed that no reason has been given for assigning 50% weightage to CCM method; selection of comparables is faulty, as majority of companies selected are not even engaged in business of tea in particular or beverages in general, hence selected companies are not comparable. 10. As far as selection of DCF method for valuation of shares, we would like to observe that it is one of the widely accepted methods of valuation of shares, but that does not mean that it is ‘the only’ accepted method. The advantage of DCF method is that it can be applied in wider spectrum based on reasonable assumptions. Here we would like to reiterate that the purpose of transfer

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pricing is to benchmark the arm’s length price of the transaction by applying the most appropriate method. The method that takes into account the price which has been charged or paid, or would have been charged or paid, for the same or similar uncontrolled transaction, with or between non-associated enterprises, under similar circumstances should be applied. In the present case, since there were flaws in valuation of shares under CCM approach, the valuation report to that extent is rejected. The Valuer has also used DCF method giving it 50% weightage, the DCF method is applied by the TPO giving 100% weightage, the same has been upheld by the CIT(A) as well. We see no reason to take a different view. Hence, ground no.4 of appeal is rejected. Ground No.5- Income from House Property : 11. The ld.Counsel for the assessee submits that the assessee had incurred expenditure of Rs. 48,51,650/- towards amenities and maintenance of facilities like salaries, security charges, electricity, etc. and the same was claimed as deduction from Annual Letting Value(ALV). The Assessing Officer disallowed the claim of assessee. The assessee carried the issue in appeal before the CIT(A). The CIT(A) following the order of his predecessor in Assessment Year 2009-10 and Assessment Year 2011-12 dismissed the said ground of appeal. The assessee had assailed the said findings in appeal for Assessment Year 2011-12 before the Tribunal in ITA No.4221/Mum/2017. The Tribunal following earlier year orders in assessee's own case in ITA No.4630 & 4637/Mum2016 for Assessment Year 2009-10 decided on 07/08/2020 restored the issue to the file of Assessing Officer. 12. Per contra, Shri Manoj Kumar Chavhan representing the Department vehemently defended the impugned order and prayed for dismissing

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assessee’s ground of appeal. However, he fairly submitted that identical issue was considered by the Tribunal in assessee's own case in the preceding Assessment Years. 13. Both sides heard. The short issue assailed in ground No.5 of appeal is with respect to claim of maintenance charges and expenditure incurred towards amenities from the rental income. The assessee had offered rental income under the head ‘Income from House Property’. The assessee claimed deduction of maintenance charges from the ALV of the building. The Assessing Officer and CIT(A) disallowed assessee’s claim. A perusal of the impugned order reveals that CIT(A) has dismissed this ground in summary manner by only observing that the same issue was considered in Assessment Year 2009-10 and 2011-12. Facts and circumstances remain identical in the present Assessment Year, hence, for the same reasons the grounds is dismissed. It is an admitted position that in the impugned Assessment Year facts are identical to Assessment Year 2009-10 and 2011-12. The Tribunal while adjusting appeal of the assessee for Assessment Year 2011-12 restored the issue back to the file of Assessing Officer observing as under:- “12. We have considered the rival submissions and perused the material available on record. In the present case, during the year assessee received Rs. 3,17,77,432 towards amenities and service charges which has been offered to tax along with the rent under the head ‘Income from House Property’. In addition to the statutory deduction claimed from these amounts, the assessee has also deducted expenses of Rs. 41,00,674 being expenditure incurred towards electricity charges, security charges and salaries against the income earned in addition to rent, whilst computing ‘Income from House Property’. As per the assessee such expenses were incurred for enjoyment of benefits/facilities by the users of the house property, which the assessee in addition to its obligation as the landlord, was required to provide. Therefore, it is the claim of the assessee that such expenses are to be reduced from the rental income

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Respectfully following the decision of Co-ordinate Bench ground No.5 of appeal is allowed for statistical purpose in similar terms. Ground No.6 – Disallowance u/s.14 of the Act: 14. The assessee during the period relevant to Assessment Year under appeal has earned exempt income to tune of Rs.3403.09 crores. The assessee made suo-motu disallowance of Rs.873.24 crores for earning exempt income. The Assessing Officer applied Rule 8D and made disallowance of Rs.1175.70 crores. The above disallowance included disallowance u/r.8D(2)(ii) Rs.990.63 crores and u/r. 8D(2)(iii) Rs. 185.07 crores. The ld. Counsel for the assessee submitted that assessee had incurred interest expenditure as well as earned interest income. The assessee prayed for netting off of interest expenditure against interest income for the purpose of disallowance u/r. 8D(2)(ii). The ld. Counsel for the assessee further pointed that Assessing Officer had disallowed certain interest u/s. 43B of the Act. However, while computing disallowance u/s. 8D(2)(ii) the Assessing Officer again disallowed the said interest. This amounts to double disallowance. She pointed that disallowance u/r. 8D(2)(ii) in similar manner was made in assessment year 2011-12. The assessee carried the issue in appeal before the Tribunal in ITA No.4221/Mum/2017 (supra). The Tribunal decided the issue in favour of the assessee. 15. The ld. Departmental Representative fairly stated that identical issue has been considered by the Tribunal in the preceding Assessment Years. The CIT(A) has already granted part relief to the assessee. Against the relief granted u/s. 14A of the Act by the CIT(A), the Revenue is in appeal. 16. Both sides heard. The representatives of rival sides have unanimously stated that the issue of disallowance u/s. 14A of the Act on identical set of

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facts has been considered by the Tribunal in the preceding assessment years. We find that the Co-ordinate Bench in appeal of assessee for assessment year 2011-12 considered the issue of disallowance u/s. 14A on similar set of facts. The assessee in sub-grounds to ground No.6 has assailed disallowance u/s.14A of the Act on different facets. The Ld.Counsel for the assessee has restricted her submissions primarily on sub-ground No.(ii) i.e. adjustment of gross interest income of Rs.159.26 against interest expenses of Rs.78.64 crores. In other words, the assessee is seeking that net interest expenses i.e. interest expenditure minus interest income to be considered for the purpose of disallowance u/r. 8D(2)(ii) and sub-ground No.(iii) relating to alleged double disallowance of interest, i.e. interest already disallowed u/s.43B of the Act not to be considered again while computing disallowance u/r. 8D(2)(ii). The Co- ordinate Bench in A.Y. 2011-12 deleted the disallowance u/s. 14A of the Act r.w.r. 8D by observing as under: “20. We have considered the rival submissions and perused the material available on record. Section 14A of the Act disallows the expenditure incurred in relation to income which does not form part of the total income under the Act. On the other hand, under section 43B expenditure of the nature mentioned in the said section are allowable only on the payment basis, irrespective of the method of accounting regularly followed by the assessee. Thus, there could be certain expenditures which may fall under both the sections for the purpose of disallowance. In such a situation, question arises whether the same expenditure can be disallowed under both the aforesaid sections and thus resulting in double disallowance. It is pertinent to note that the Act is silent on this aspect. In this regard, it is relevant to note following observations of Hon’ble Supreme Court in Jain Brothers vs Union of India, [1970] 77 ITR 107 (SC): “It is not disputed that there can be double taxation if the legislature has distinctly enacted it. It is only when there are general words of taxation and they have to be interpreted, they cannot be so interpreted as to tax the same subject twice over to the same tax..... If any double taxation is involved the legislature itself has, in express words, sanctioned it. It is not open to anyone thereafter to invoke the general principles that subject cannot be taxed twice over.” 21. In the present case, it has not been disputed by the Revenue that interest amounting to Rs. 83.91 crore has been disallowed by the assessee under section 43B

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of the Act. It is also not in dispute that the aforesaid amount forms part of the gross interest of Rs. 1031.83 crore. That being the case, we are of the considered view that since the interesthas already been disallowed by the assessee under section 43B of the Act, therefore, interest amount to that extent be excluded by the AO from the gross interest, while computing disallowance under Rule 8D(2)(ii). Otherwise, same will result in double disallowance of interest of Rs. 83.91 crore under section 14A as well as under section 43B of the Act. We order accordingly. Further, it is pertinent to note that under section 14A the expenditure incurred in relation to income which does not form part of the total income is disallowed as the corresponding income is also not taxable. In the present case, assessee has already disallowed interest of Rs. 83.91 crore, though under section 43B of the Act. Thus, even though the corresponding income is exempt, the expenditure is also not claimed by the assessee, which suffices the purpose of section 14A of the Act. However, at the same time, we cannot be oblivious to the aspect that expenditure under section 43B of the Act are allowable on payment basis and the expenditure suo moto disallowed by the assessee, during the year under consideration, is allowable in the year when the same is paid by the assessee. Thus, for the very same amount of Rs. 83.91 crore assessee shall be entitled to claim deduction under section 43B of the Act in the year of payment. Therefore, in view of the above, we deem it fit to further direct the AO to disallow the interest expenditure of Rs. 83.91 crore under section 14A of the Act in the year in which said sum will be claimed and allowed as deduction under section 43B of the Act. This approach will avoid the situation of double disallowance of the interest amount of Rs. 83.91 crore under the aforesaid provisions in any givenyear. With above directions, ground no. 10(ii) raised in assessee’s appeal is allowed for statistical purpose. 22. In ground 10(iii) and 10(iv), it is the claim of the assessee that only investments which yield dividend income during the year should be considered. We find that claim of the assessee is supported by decision of Special Bench of the Tribunal in ACIT vs Vireet Investment (P) Ltd., [2017] 165 ITD 27 (Delhi – Trib), wherein it was held that only those investments are to be considered for computing average value of investment, which yields exempt income during the year. We further find that the coordinate bench of the Tribunal in assessee’s own case in Tata Sons Ltd vs ACIT, in ITA Nos. 3192 and 3508/Mum/2013, vide order dated 06/11/2019 for assessment year 2008-09, following the aforesaid decision rendered by Special Bench, granted relief to the assessee. The aforesaid decision rendered in assessment year 2008–09 has been consistently followed in assessee’s own case for assessment years 2009– 10 and 2010–11 cited supra, by the coordinate bench of the Tribunal. Thus, respectfully following the aforesaid judicial precedents, we direct the AO to only consider those investments, for purpose of computation of disallowance under Rule 8D of the Rules, which yield dividend income during the year. As a result, grounds no. 10(iii) and 10(iv) raised in assessee’s appeal are allowed. 23. In respect of ground no. 10(v), raised in assessee’s appeal, only grievance of the assessee is against non-consideration net interest expenditure, i.e. after adjusting the interest earned, for the purpose of computing the disallowance under section 14A

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read with rule 8D. In this regard, we find that this issue is already covered in favour of the assessee in its own case by order dated 06/11/2019 passed by the coordinate bench of the Tribunal in ITA Nos. 3192 and 3508/Mum/2013, for assessment year 2008-09. The aforesaid decision rendered in assessment year 2008–09 has been consistently followed in assessee’s own case for assessment years 2009–10 and 2010–11 cited supra, by the coordinate bench of the Tribunal. Thus, respectfully following the judicial precedents in assessee’s own case, ground no. 10(v) raised in assessee’s appeal is allowed. The other aspect raised in aforesaid ground pertaining to allocation of net interest between exempt dividend income and taxable brand income was not pressed during the course of hearing. Therefore, the said part of ground no. 10(v) is dismissed as not pressed.” The sub-grounds No. (ii) and (iii) of ground No.6 are allowed for parity of reasons. 17. In respect of sub-ground No.(iv) of ground No.6, the Ld.Counsel for the assessee stated at Bar that she is not pressing the same. In view of the aforesaid statement ground No.6(iv) is dismissed as not pressed. In the result, ground No.6 of appeal is partly allowed in the aforesaid terms. Ground No.7 –Increasing the Adjusted Book Profit u/s. 115JB of the Act : 18. The assessee vide application dated 11/09/2021 has modified ground No.7 of appeal. The modified ground No.7 of appeal reads as under: “ The learned AO be directed to increase the “book profit” in terms of clause (f) to Explanation 1 to section 115JB, only the direct expenditure incurred relatable to income to which the provisions of section 10 apply in terms of clause (i) of sub-rule(2) to Rule 8D of the Income –tax Rules, 1962 and not by the disallowance estimated in terms of clause (ii) an (iii) of he said Rule.” 19. The Ld.Counsel for the assessee submits that the issue raised in modified ground of appeal is squarely covered by the decision of Special Bench in the case of Vireet Investments Pvt. Ltd., 165 ITD 27 (Del-SB). The Special Bench of the Tribunal in the case of Vireet Investments Pvt. Ltd. (supra) has held that while computing Book Profits u/s. 115JB disallowance made u/s. 14A of the Act

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r.w.r 8D is not to be considered. Similar view has been expressed by Hon’ble Karnataka High Court in the case of Sobha Developers Ltd. vs. DCIT, 125 taxmann.com 72. In view of the aforesaid decisions the Assessing Officer is directed not to consider disallowance u/s. 14A for the purpose of computing Book Profits u/s. 115JB of the Act. Ground No.8- Disallowance of provision of pension – Rs.2.48 crores: 20. The Ld.Counsel for the assessee submits that the assessee had made provision of Rs.3.84 crores in respect of pension paid to whole time Directors. The provision for pension is based on actuarial valuation. Similar disallowance was made inAssessment Year 2011-12. The Tribunal after considering the facts of case and various decisions granted relief to the assessee. The facts in the impugned assessment year are identical . 21. The ld. Departmental Representative fairly stated that the issue has been considered by the Tribunal in assessee’s own case in the preceding assessment year. 22. Both sides heard. We find that the issue of disallowance of provision for pension was considered by the Tribunal in assessee’s own case for Assessment Year 2011-12 (in para 25 onwards). The Co-ordinate Bench after considering decisions rendered in the case of PCIT vs. State Bank of India. 109 taxmann.com11(Bom); CIT vs. Eveready Industries Ltd., 98 taxmann.com 90(Cal) and CIT vs. Mahindra & Mahindra Ltd., 284 ITR 679 (Bom) concluded as under: “33. In the present case, the net provision for pension of Rs. 21.94 crore was claimed as deduction on the basis that assessee is following mercantile system of accounting. It is not in dispute that such an estimate has been made by the assessee from year to

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year to provide for the pension amount payable to the Directors in recognition of their servicesrendered during the tenure as whole time Directors. Further, it is also not disputed that during the year under consideration assessee has made payment of Rs. 4.45 crore. The assessee has made an estimate on reasonable basis of such liability on the basis of actuarial valuation. In this regard, it is relevant to note following observations of the Hon’ble Supreme Court in Bharat Earth Movers vs CIT, [2000] 245 ITR 428 (SC): “4. The law is settled: if a business liability has definitely arisen in the accounting year, the deduction should be allowed although the liability may have to be quantified and discharged at a future date. What should be certain is the incurring of the liability. It should also be capable of being estimated with reasonable certainty though the actual quantification may not be possible. If these requirements are satisfied, the liability is not a contingent one. The liability is in praesenti though it will be discharged at a future date. It does not make any difference if the future date on which the liability shall have to be discharged is not certain. 34. Thus, respectfully following the aforesaid decisions rendered by the Hon’ble jurisdictional High Court, we are of the considered view that assessee is entitled to claim deduction of the provision for pension provided on an actuarial basis. In the result, ground no. 11 raised in assessee’s appeal is allowed.” No contrary decision has been placed on record by the Revenue. Thus, respectfully following the aforesaid decision by the Co-ordinate Bench ground No.8 of appeal is allowed for parity of reasons.

Ground No.9 – Short Grant of Credit of DIT: 23. The Ld.Counsel for the assessee submits that the Assessing Officer has erred in granting short credit for DIT, directions may be given to the Assessing Officer for granting full relief. We find that the CIT(A) has already directed the Assessing Officer to verify the claim of assessee and grant the eligible relief. The Assessing Officer is directed to comply with the directions of the CIT(A) on the issue. Ground No.10 – Short grant of TDS Credit – Rs.1,10,39,578/- : 24. A perusal of the impugned order reveals that the CIT(A) has already directed the Assessing Officer to grant TDS credit after verification of Form

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No.26AS and follow Instruction No.5/2013. The Assessing Officer is directed to comply with the aforesaid direction of CIT(A).

ITA NO.1349/MUM/2019(A.Y.2012-13): 25. The Revenue in ground No.1 to 3 of appealhas raised a single issue i.e. with respect to disallowance u/s. 14A of the Act. The CIT(A) had granted part relief to the assessee. The Department is in appeal against the relief granted to the assessee by CIT(A). While adjudicating the issue of disallowance u/s. 14A of the Act in appeal by the assessee, we have allowed relief in full qua ground No.6(ii) and 6(iii). Since we have accepted assessee’s contentions, as a sequitur ground No. 1 to 3 in appeal by the Department are liable to be dismissed. We hold and direct accordingly. 26. In ground No.4 of appeal the Revenue has assailed the findings of CIT(A) in allowing consultancy fees paid to M/s. Vaishnavi Corporate Communications Pvt. Ltd. (in short ‘Vaishnavi’). The ld. Departmental Representative has drawn our attention to the findings of Assessing Officer in para -8 of the assessment order. He submitted that the assessee has paid consultancy fee of Rs.7.22 crores to Vaishnavi. As per assessee’s own admission the said payment has been made in respect of land transactions and for acquiring 2G licences. The consultancy fee paid by the assessee to Vaishnavi is not in respect of assessee’s business, hence, the payment was disallowed. 27. The Ld.Counsel for the assessee submits that identical issue was considered by the Tribunal in assessee’s own case in ITA No.4323/Mum/2017 in appeal by the Department and dismissed the aforesaid ground.

19 ITA NO.1093/MUM/2019(A.Y.2012-13) ITA NO.1349/MUM/2019(A.Y.2012-13)

Order pronounced in the open court on Friday the 15th day of March, 2024.

Sd./- Sd./- (S.RIFAUR RAHMAN) (VIKAS AWASTHY) लेखा सद�/ACCOUNTANT MEMBER �ाियक सद�/JUDICIAL MEMBER मुंबई/ Mumbai, िदनांक/Dated 15/03/2024 Vm, Sr. PS(O/S)

20 ITA NO.1093/MUM/2019(A.Y.2012-13) ITA NO.1349/MUM/2019(A.Y.2012-13)

�ितिलिप अ�ेिषतCopy of the Order forwarded to : 1. अपीलाथ�/The Appellant , 2. �ितवादी/ The Respondent. 3. आयकर आयु�CIT 4. िवभागीय �ितिनिध, आय.अपी.अिध., मुबंई/DR, ITAT, Mumbai 5. गाड� फाइल/Guard file. BY ORDER, //True Copy// (Dy./Asstt.Registrar) Mumbai

Details Date Initials Designation 1 Draft dictated/ directly typed on . Sr.PS/PS computer on 2 Draft Placed before author Sr.PS/PS 3 Draft proposed & placed before the JM/AM Second Member 4 Draft discussed/approved by Second JM/AM Member 5. Approved Draft comes to the Sr.PS/PS Sr.PS/PS 6. Kept for pronouncement on Sr.PS/PS 7. File sent to the Bench Clerk Sr.PS/PS 8 Date on which the file goes to the Head clerk 9 Date of Dispatch of order