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Income Tax Appellate Tribunal, MUMBAI BENCH “A”, MUMBAI
Before: SHRI G.S.PANNU & SHRI JOGINDER SINGH
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “A”, MUMBAI BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER AND SHRI JOGINDER SINGH, JUDICIAL MEMBER ITA No. 6527/MUM/2007 (Assessment Year : 2003-04) The DCIT – 3(2), Room No.608,6th Floor, Aaykar Bhavan, Mumbai 400020 ... Appellant Vs. M/s. Kargil Holding Pvt. Ltd. 707,Maker Chamber-V, Nariman Point Mumbai 400021 PAN: AAACK6575E .... Respondent
ITA No. 6840/MUM/2007 (Assessment Year : 2003-04) The DCIT – 3(2), Room No.608,6th Floor, Aaykar Bhavan, Mumbai 400020 ......Appellant Vs. M/s. Leh Holding Pvt. Ltd. 707,Maker Chamber-V, Nariman Point Mumbai 400021 Pan: AAACE4694E .... Respondent Appellant by : Shri G.N.Makwana Respondent by : Shri Rahul R. Sarda
Date of hearing : 01/02/2016 Date of pronouncement : 29/04/2016 ORDER PER G.S. PANNU,AM:
In both the captioned appeals a common issue, based on identical facts has been raised, which relates to the action of the CIT(A)
2 ITA No. 6527&6840/MUM/2007 (Assessment Year : 2003-04 in allowing the deduction claimed by the assessee under section 80M of the Income Tax Act, 1961 (in short “the Act’). Since the issues involved are similar, the two appeals have been clubbed together and a consolidated order is being passed for the sake of convenience and brevity.
ITA No.6527/Mum/2007, in the case of Kargil Holding Pvt. Ltd. is taken as the lead case, which is an appeal by the Revenue directed against the order passed by CIT(A)-II, Ahmedabad, which in turn arises out of an order passed by the Assessing Officer under section 143(3) of the Act dated 08/03/2006.
The solitary issue in this appeal arises from the action of the CIT(Appeals) in holding that the assessee is entitled to the claim of deduction under section 80M of the Act to the extent of Rs.60.00 lacs. In brief, the relevant facts giving rise to the aforesaid dispute can be summarized as follows. During the year under consideration, the assessee company earned dividend income of Rs.82,52,525/- detailed as under:- S.No. Name Date of receipt Amount of dividend i. Nirma Limited 13-09-2002 Rs.70,02,275/- ii. Tamilnadu Petro 10-10-2002 Rs.12,50,250/- Chemicals Ltd.
In turn, assessee declared dividend of Rs.60.00 lacs, which was distributed to its shareholders on 23/09/2003, i.e. before the due date of filing of the return of income for assessment year 2003-04. Accordingly, the assessee company claimed deduction under section 80M of the Act for Rs.60.00 lacs. The Assessing Officer denied the
3 ITA No. 6527&6840/MUM/2007 (Assessment Year : 2003-04 deduction under section 80M claimed by the assessee primarily on account of the provisions of section 115-O(5) of the Act . The Assessing Officer noticed that the major dividend income was received by the assessee from Nirma Limited, which had declared dividend on 09/09/2002 and deducted tax at source. The assessee company distributed dividend and paid dividend tax under section 115-O of the Act. The Assessing Officer also observed that the control and management of Nirma Limited as well as the assessee company was the family members of Shri Karshanbhai K. Patel. The assessee company had distributed the dividend to its shareholders, being the family members of Shri Karshanbhai K. Patel. As per the Assessing Officer, Nirma Group had tried to take benefit of both events of dividend i.e. deduction under section 80M of the Act was claimed by the assessee company and exemption under 10(33) of the Act was claimed by the recipients of such dividend income in the financial year 2003-04. As per the Assessing Officer, assessee had ultimately paid tax on Rs.10,02,275/-after claiming deduction under section 80M of the Act and in this manner, the Assessing Officer concluded that assessee avoided payment of tax on Rs.60.00 lacs, whereas the family members of Shri Karshanbhai K. Patel had also received dividend free of tax. Accordingly, he applied provisions of section 115-O(5) of the Act and denied the claim of deduction under section 80M of the Act of Rs.60.00 lacs. 4. Before the CIT(Appeals), assessee pointed out that it was entitled to the deduction under section 80M of the Act as it fulfilled the requisite conditions, namely that assessee had received dividend from a domestic company; that assessee distributed dividend on or
4 ITA No. 6527&6840/MUM/2007 (Assessment Year : 2003-04 before due date i.e. 22/09/2003; and that the dividend was distributed in pursuance of resolution passed in the Annual General Meeting. It was also claimed before the CIT(Appeals) that section 115-O had no relation with assessee’s claim for deduction under section 80M of the Act. In this background, the CIT(Appeals) held that assessee company had declared dividend to its shareholders from the total income of the year, which included the impugned dividend income and, therefore, it was entitled to the claim of deduction under section 80M of the Act and that there was no double deduction as contended by the Assessing Officer. Further, the CIT(Appeals) held that the assessee company has complied with the provisions of section 80M of the Act as well as section 115-O of the Act. Accordingly, the CIT(Appeals) has directed the Assessing Officer to allow the claim of deduction under section 80M of the Act as claimed by the assessee. Against such a decision of the CIT(Appeals, Revenue is in appeal before us.
Before us, the Ld. Representative for the respondent assessee, at the outset pointed out that identical controversy has been considered by the Ahmedabad Bench of the Tribunal in the following cases, whereby assessee’s claim for deduction under section 80M of the Act has been affirmed:- 1. DCIT vs. M/s. Banihal Holdings Pvt. Ltd., ITA No.7155/Ahd/2007, A.Y. 2003-04 order dated 30/10/2009. 2. DCIT vs. Kulgam Holdings (P) Ltd., ITA No.7333/mum/2007, A.y. 2003-04 order dated 7/05/2010.
5.1 The Ld. Departmental Representative for the Revenue did not dispute that the aforesaid precedents covered the controversy but
5 ITA No. 6527&6840/MUM/2007 (Assessment Year : 2003-04 pointed out that the two events, namely, declaration of dividend by Nirma Limited and its receipt by the assessee company and thereafter distribution of dividend by the assessee to its shareholders are interlinked with the object of saving taxes in hands of the shareholders of assessee company, who also are otherwise in control of Nirma Limited.
We have considered the rival submissions and have also perused the precedents relied upon by the respondent assessee before us. Undoubtedly, Ahmedabad Bench of the Tribunal in the case of M/s. Banihal Holdings Pvt. Ltd. (supra) has considered an identical controversy and in fact it considered dividend income received from Nirma Industries Ltd. and its subsequent distribution by M/s. Benihal Holdings Pvt. Ltd. to its individual shareholders, who had interest in Nirma Industries Ltd., The issue before the Ahmedabad Bench of the Tribunal related to the deduction claimed by M/s. Banihal Holdings Pvt. Ltd. under section 80M of the Act with regard to the dividend distributed by it. Ostensibly, similar is the fact-situation in the case before us. The following discussion in the order of the Tribunal dated 30/10/2009(supra) is relevant:- “5. We have heard the learned DR and learned AR. The reasons on which Assessing Officer had disallowed the deduction under Section 80M are;
(i) Assessee has not declared dividend in the financial year 2002-2003, but has declared them in the financial year 2003- 2004.
(ii) In the financial year 2002-2003 exemption under Section 10(33)/10(34) was not available to the recipients of dividend declared by the assessee. It was paid in the financial year 2003-2004 when such exemption under Section 10(33)/10(34) was available to the recipients of dividend from the assessee company.
6 ITA No. 6527&6840/MUM/2007 (Assessment Year : 2003-04 (iii) Provision of Section 115(O) made effective from 01-04-2003 provided in Sub Section 5 that no other deduction under any other provision of the Act shall be allowed to the company or share holder in respect of the income charged to tax under Section 115(0). Thus, if assessee company would have declared dividend in the financial year 2003-04 it would have paid taxes as per Section 115(0)(1) and no further deduction would have been available to either the assessee company or to its share holders.
(iv) In the present case, Nirma Industries Limited has not paid dividend tax on the amount of Rs. 56,00,000/- in absence of Section 115(0) in the financial year 2002- 2003. Thus, the assessee is claiming double deduction or (exemption) in the sense that neither the assessee company is paying taxes as required under Section 115(0) and also it is claiming deduction under Section 80M.
However, above reasoning of the Assessing Officer are not legally sustainable. It is because in the financial year 2002-2003 provisions of Section 1150 were not brought in the statute book and therefore assessee company could not have been levied tax under that section. Further for claiming deduction under Section 80M, the assessee company has to pay the dividend on or before due date which is defined in that section as to mean the date for furnishing return of income under Section 139(1). In the present case, the due date of filing of return was 31-10-2003, whereas a dividend was paid on 22-09-2003. Thus, the requirement of Section 80M are complied with. For the sake of convenience, we reproduce section 80M and its explanation as under :
*80M. Deduction in respect of certain intercorporate dividends.-
(1) Where the gross total income of a domestic company, in any previous year, includes any income by way of dividends from another domestic company, there shall, in accordance with and subject to the provisions of this section, be allowed, in computing the total income of such domestic company, a deduction of an amount equal to so much of the amount of income by way of dividends from another domestic company as does not exceed the amount of dividend distributed by the first-mentioned domestic company on or before the due date.
(2) Where any deduction, in respect of the amount of dividend distributed by the domestic company, has been allowed under sub-section (1) in any previous year, no deduction shall be allowed in respect of such amount in any other previous year.
Explanation.- For the purposes of this section, the expression "due date" means the date for furnishing the return of income under sub-section (1) of section 139."
The due date has been provided in explanation 2 to Section 139(1) as under:
Explanation 2.- In this sub-section, "due date" means,-
7 ITA No. 6527&6840/MUM/2007 (Assessment Year : 2003-04 (a) where the assessee is- (i) a company, or (ii) a person (other than a company) whose accounts are required to be audited under this Act or under any other law for the time being in force; or (iii) a working partner of a firm whose accounts are required to be audited under this Act or under any other law for the time being in force, the 31st day of October of the Assessment year;
Therefore once the condition laid down under Section 80M are satisfied the assessee is entitled for deduction under Section 80M.
The provision of Section 115O reads as under :
“115-O. Tax on distributed profits of domestic companies. -- (1) Notwithstanding anything contained in any other provision of this Act and subject to the provisions of this section, in addition to the income-tax chargeable in respect of the total income of a domestic company for any assessment year, any amount declared, distributed or paid by such company by way of dividends (whether interim or otherwise) on or after the 1st day of June, 1997 but on or before the 31st day of March, 2002, whether out of current or accumulated profits shall be charged to additional income-tax (hereafter referred to as tax on distributed profits) at the rate of ten per cent.
(2) Notwithstanding that no income-tax is payable by a domestic company on its total income computed in accordance with the provisions of this Act, the tax on distributed profits under sub- section (1) shall be payable by such company.
(3) The principal officer of the domestic company and the company shall be liable to pay the tax on distributed profits to the credit of the Central Government within fourteen days from the date of—
(a) declaration of any dividend; or (b) distribution of any dividend; or (c) payment of any dividend, whichever is earliest.
(4) The tax on distributed profits so paid by the company shall be treated as the final payment of tax in respect of the amount declared, distributed or paid as dividends and no further credit therefore shall be claimed by the company or by any other person in respect of the amount of tax so paid.
8 ITA No. 6527&6840/MUM/2007 (Assessment Year : 2003-04 (5) No deduction under any other provision of this Act shall be allowed to the company or a shareholder in respect of the amount which has been charged to tax under sub-section (1) or the tax thereon."
The provisions of Section 115O(5) cannot be made applicable this year because assessee was required to pay tax as per Section 115O(1) in respect of dividend declared, distributed or paid on or after first day of April 2003. Since, in the present case dividend was declared in the financial year 2002-2003, assessee could not be charged under Section 115(O)(1) and consequently provision of Sub Section 5 cannot be invoked debarring the assessee from claiming deduction under Section 80M.
In the present case, there is no case of any double deduction or exemption, if we, view claim u/s 80M independent of Section 115O which was not applicable in the financial year 2002-2003. Income of the assessee was exempt under Section 10(33) in first Year 2002- 2003 in respect of the dividend received by it from M/s. Nirma Industries Limited and M/s. Tamilnadu Petro Chemicals Limited. It was also entitled to deduction under Section 80M in respect of dividend declared by it during the financial year 2002-2003 and paid by it to the share holders before due date. Entire arrangement is according to law and no fallacy as such has been pointed out by learned Assessing Officer. Further it is incorrect to say that no tax has been paid by the assessee. The audited accounts showed that it has paid tax on the dividend at Rs. 7,17,500/- as per profit and loss account placed on page 5 of the assessee's paper book. Accordingly, we do not find any reason to take a different view then what Ld. Commissioner of Income Tax (Appeals) has taken.”
6.1 Following the aforesaid precedent, we find that the CIT(Appeals) made no mistake in allowing assessee’s claim for deduction under section 80M of the Act. In so far as the arguments set-up by the Ld. Departmental Representative for the Revenue is concerned, the same has also been addressed in the aforesaid precedent and in any case, what is required to be examined is as to whether or not the conditions prescribed in section 80M of the Act have been complied with by the assessee. On this point, it is quite clear that the requirements of section 80M of the Act have been complied with and thus, the claim for
9 ITA No. 6527&6840/MUM/2007 (Assessment Year : 2003-04 deduction under section 80M has been rightly allowed by the CIT(Appeals). The same is hereby affirmed. 6.2 Thus, appeal of the Revenue in ITA NO.6527/Mum/2007 is hereby dismissed.
Since the facts and circumstances in the case of M/s. Leh Holding Pvt. Ltd. in ITA No.6840/Mum/2007 are identical to those considered in the case of Kargil Holding Pvt. Ltd.(supra), our decision in the case of Kargil Holding Pvt. Ltd. shall apply mutatis mutandis in the case of M/s. Leh Holding Pvt. Ltd. also. Accordingly, this appeal is also dismissed.
Resultantly, both the appeals filed by the Revenue are dismissed. Order pronounced in the open court on 29th April , 2016. Sd/- Sd/-
(JOGINDER SINGH) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai, Dated 29/04/2016 Vm, Sr. PS Copy of the Order forwarded to : 1. The Appellant , 2. The Respondent. 3. The CIT(A)- 4. CIT 5. DR, ITAT, Mumbai Guard file. 6.
BY ORDER, //True Copy// (Dy./Asstt. Registrar) ITAT, Mumbai