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Income Tax Appellate Tribunal, “ D ” BENCH, AHMEDABAD
Before: SHRI T.R. SENTHIL KUMAR & SHRI MAKARAND V. MAHADEOKAR
These cross-appeals filed by the Assessee and the Revenue pertain to the Assessment Years (AYs) 2017-18 and 2018-19. Since the issues involved in these appeals are identical and interrelated, they are being heard together and disposed of by this consolidated order for the sake of convenience and to avoid repetition of facts. The assessee has challenged the order dated 10.03.2023 passed by the Commissioner of Income Tax (Appeals)-11, Ahmedabad (hereinafter referred to as “CIT(A)”) u/s 250 of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) for both the AYs, while the Revenue has contested the relief granted by the CIT(A) in the same appellate orders. The primary issues revolve around the disallowances made by the Assessing Officer (hereinafter referred to as “AO”) under Section 14A of the Act, read with Rule 8D of the Income Tax Rules (IT Rules), 1962 as well as the treatment of business development expenses claimed by the assessee. The AO passed order under section 143(3) of the Act in case of both assessment years.
Given the commonality of facts and legal contentions, we find it appropriate to adjudicate these appeals through a single order.
Facts of the cases: 3. The assessee is engaged in the business of publication of newspapers and magazines. The assessee filed its return of income for both the years under consideration and the cases were selected for scrutiny under CASS. During the course of assessment proceedings of both the years, the AO noted & 291/Ahd/2023 (By Assessee) and & 480/Ahd/2023 (By Revenue) Lok Prakashan Ltd. Vs. ACIT/DCIT Asst. Years : 2017-18 & 2018-19 that the assessee had made substantial investments in shares and securities to earn tax-exempt income. The AO also noted that the assessee has disallowed some amount under section 14A, but he found this insufficient and not in compliance with Rule 8D of the IT Rules. The AO recalculated the disallowance using the average value of investments. The AO added these recalculated amounts to the income of the assessee after considering the assessee's self-disallowance. The AO also observed in case of A.Y. 2017-18 that the assessee claimed Rs.3,81,81,002/- as business development expenditure, arguing it was spent on promotional schemes to retain and attract customers. The AO disallowed this expenditure due to lack of evidence linking the expenditure to a rise in business, lack of direct nexus with revenue, and a history of similar disallowances in earlier years.
The assessee preferred an appeal before CIT(A) against this order of AO, who partly allowed the appeal, directing a recalculation of the disallowance under Section 14A of the Act based on revised computations as per Rule 8D and deleted the disallowance of business development expenditure for the A.Y. 2017-18.
4.1. Following is the tabulated details of returns filed, assessment thereof and result of appeal before CIT(A):
Particulars AY 2017-18 AY 2018-19 Date of Original Return 07.11.2017 30.11.2018 Return Filing Revised Return 28.07.2018 N/A Declared As per Original 2,64,03,29,030/- 3,00,66,06,960/- Income in Rs. Return & 291/Ahd/2023 (By Assessee) and & 480/Ahd/2023 (By Revenue) Lok Prakashan Ltd. Vs. ACIT/DCIT Asst. Years : 2017-18 & 2018-19
As per Revised 2,63,92,67,830/- N/A Return Date of AO’s Assessment 27.12.2019 23.09.2021 Order Order Date Section Section 143(3) Section 143(3) Under Which Order Passed Disallowance Exempt Income 13,18,58,605/- 10,43,12,707 under Section Earned in Rs. 14A in Rs. Self- 20,69,043/- 20,03,321/- Disallowance by Assessee AO's Calculation 17,37,10,409/- 24,52,39,198/- of Disallowance (Rule 8D) Additional 17,16,41,366/- 24,32,35,877/- Disallowance by AO CIT(A) Decision Partly allowed; directed recalculation per Rule 8D excluding investments not earning exempt income Business Claimed by 3,81,81,002/- 3,30,70,766/- Development Assessee in Rs. Expenditure AO’s No direct nexus No direct nexus Observation with increased with increased business; lack of business; lack of evidence evidence Disallowed by 3,81,81,002/- 3,30,70,766/- AO in Rs. CIT(A) Decision Deleted Deleted disallowance disallowance Total Disallowance 17,16,41,366/- 24,32,35,877/- Additions by u/s 14A AO in Rs. Business 3,81,81,002/- 3,30,70,766/- Development Expenditure & 291/Ahd/2023 (By Assessee) and & 480/Ahd/2023 (By Revenue) Lok Prakashan Ltd. Vs. ACIT/DCIT Asst. Years : 2017-18 & 2018-19
Addition on NIL 6,12,425/- account of default in TDS Total After Additions 2,84,90,90,198/- 3,28,35,26,028 Assessed Rounded Off 2,84,90,90,200/- 3,28,35,26,030 Income in Rs.
Aggrieved by the order of CIT(A) both the assessee and revenue are in appeal(s) before us with following grounds of appeal:
Assessee’s Grounds of appeal
(s):- (i) In 1. On the facts and in the circumstances of the case, the learned C.I.T (Appeals) erred in confirming Assessing Officer's decision to disallow the amount of Rs. 17,16,41,366/- u/s. 14A of the I.T. Act by applying the formula of Rule 8D of the I.T. Rules, except to the extent of giving direction to re-compute disallowance based upon the average of investment from which exempt income is earned during the year.
2. On the facts and circumstances of the appellant's case, the Learned CIT (A) has failed to appreciate that the disallowance u/s. 14A considered in the return of income was reasonable and thus, there was no justification for any further disallowance by the Assessing Officer on this account.
3. The appellant craves leave to add, alter, amend and/or withdraw any ground or grounds of appeal
either before or during the course of hearing of the appeal. (ii) In 1. On the facts and in the circumstances of the case, the learned C.I.T (Appeals) erred in confirming Assessing Officer's decision to disallow the amount of Rs. 24,52,39,198/- u/s.14A of the I.T. Act by applying the formula of Rule 8D of the I.T. Rules, except to the extent of giving direction to re-compute disallowance based upon the average of investment from which exempt income is earned during the year.
2. On the facts and circumstances of the appellant's case, the Learned CIT (A) has failed to appreciate that the disallowance u/s. 14A considered in & 291/Ahd/2023 (By Assessee) and & 480/Ahd/2023 (By Revenue) Lok Prakashan Ltd. Vs. ACIT/DCIT Asst. Years : 2017-18 & 2018-19 the return of income was reasonable and thus, there was no justification for any further disallowance by the Assessing Officer on this account.
The appellant craves leave to add, alter, amend and/or withdraw any ground or grounds of appeal either before or during the course of hearing of the appeal.
Revenue’s Grounds of appeal:-
(i) In 1. In the facts and on the circumstances of the Ld.CIT(A) has erred in law and/or on facts in not holding the business development expenses of Rs.3,81,81,002/- as capital expenses and deleting the same without appreciating the facts contained in the assessment order.
2. In the facts and on the circumstances of the case, the Ld.CIT(A) has erred in law and/or on facts in partly allowing total relief of Rs.14,93,23,975/- out of total disallowance of Rs.17,16,41,366/- u/s 14A without appreciating the fact that the disallowance was made u/s 14A r.w.rule 8D of the I T Act, 1961 after drawing satisfaction of the Assessing Officer in the assessment order
3. ln the facts and on the circumstances of the case and in law, the Ld. CIT(A) ought to have upheld the order of the A.O. It is, therefore, prayed that the order of the Ld. CIT(A) be set aside and that of the A.O. be restored to the above extent 1. ln the facts and on the circumstances of the case, the Ld.CIT(A) has erred in law and/or on facts in not holding the business development expenses of Rs.3,30,70,766/- as capital expenses and deleting the same without appreciating the facts contained in the assessment order
2. ln the facts and on the circumstances of the case, the Ld.CIT(A) has erred in law and/or on facts in partly allowing total relief of Rs.13,87,03,1991 out of total disallowance of Rs.24,32,35,877/- u/s 14A without appreciating the fact that the disallowance was made u/s 14A r.w.rule 8D & 291/Ahd/2023 (By Assessee) and & 480/Ahd/2023 (By Revenue) Lok Prakashan Ltd. Vs. ACIT/DCIT Asst. Years : 2017-18 & 2018-19 of the I T Act, 1961 after drawing satisfaction of the Assessing Officer in the assessment order?
3. ln the facts and on the circumstances of the case and in law, the Ld. CIT(A) ought to have upheld the order of the A.O. It is, therefore, prayed that the order of the Ld. CIT(A) be set aside and that of the A.O be restored to the above extent.
5.1. As evident, there are two grounds in these cross appeals, Disallowance under Section 14A and Disallowance of Business Development Expenses. For a clear and coherent resolution of the cross-appeals we deal with them one by one.
On the grounds relating to Disallowance under section 14A: 6. Under this ground, the assessee challenges the AO's application of Rule 8D for disallowance under Section 14A, arguing that their self-disallowed amounts (Rs.20,69,043 for AY 2017-18 and Rs. 20,03,321 for AY 2018-19) were reasonable and justified and the AO failed to record proper dissatisfaction with the assessee’s calculations, as mandated by Section 14A(2) and Rule 8D(1). The assessee contends that disallowance should not exceed the exempt income earned and that investments not yielding exempt income should be excluded from the calculation. On the other hand, the revenue argues that the CIT(A) wrongly granted partial relief by directing a recalculation, despite the AO having recorded adequate satisfaction for the disallowance under Section 14A of the Act. The revenue seeks full restoration of the AO’s disallowance amounts (Rs. 17,16,41,366 for AY 2017-18 and Rs.24,32,35,877 for AY 2018-19). & 291/Ahd/2023 (By Assessee) and & 480/Ahd/2023 (By Revenue) Lok Prakashan Ltd. Vs. ACIT/DCIT Asst. Years : 2017-18 & 2018-19
During the course of hearing before us, the Authorised Representative (AR) of the assessee stated that the AO disallowed the expenses u/s 14A of the Act brushing aside suo moto disallowance without giving any express findings as to why the disallowance made by the assessee is not correct. The AR pointed out that the main contention of the AO is that the assessee did not maintain separate books of accounts for the sue of funds generating income and the portion of other expenditure is not considered by the assessee while calculating such disallowance. The AR also stated that the AO has not quantified the reasonableness of the other expenditure. The AR further stated that the CIT(A), while partly allowing the ground of assessee, has pointed out that the CIT(A) in his order referred to the finding of his predecessor which is based on binding decisions of the Co-ordinate Bench and Third Member decision of Delhi Bench. The AR further argued that the disallowance u/s. 14A of the Act beyond the suo moto disallowance by the assessee is not warranted as the AO has not passed a speaking order rejecting the assessee’s quantification. The AR placed reliance on judgements of Hon’ble Supreme Court in case of Maxopp Investment Ltd. [2018] 91 taxmann.com 154(SC) and South Indian Bank Ltd. [2021] 130 taxmann.com 178(SC).
7.1. Without prejudice to this argument the AR argued that no disallowance of administrative expenses u/s 14A be made in respect of exempt income from Mutual Funds as decided by the Co-ordinate Bench in case of Canton Laboratories Pvt. Ltd. Vs. DCIT Circle 1(1)(1) Vadodara (CO No. 223/Ahd/2015 in ITA No. 3166/Ahd/2015). The AR also argued that no disallowance u/s 14A should be made in case of tax-free interest income of Rs. 100,187on in investment of Gold Deposit of Rs.46.95 Lacs as the & 291/Ahd/2023 (By Assessee) and & 480/Ahd/2023 (By Revenue) Lok Prakashan Ltd. Vs. ACIT/DCIT Asst. Years : 2017-18 & 2018-19 disallowance of 1% of investment amount would be irrational when no fresh investment is made and interest earned is only 2%. The AR also proposed to restrict the disallowance u/s 14A to 5% of salary and other administrative expenses following the decision of Co-ordinate Bench in assessee’s own case for the A.Y. 2016-17 in dated 09/12/2022.
7.2. The AR presented the factual matrix of the data from profit and loss account for A.Y. 2017-18 and A.Y. 2018-19, to demonstrate comparability with earlier year i.e. A.Y. 2016-17. The same is tabulated below: (Rs. In Crs) Sr Particulars FY 2015- FY 2016- FY 2017- No. 16 (AY 17 (AY 17- 18 (AY 18- 16-17) 18) 19) 1 Revenue From Operation 583.25 562.28 577.58 (as per Note 15) 2 From Other Income (Note 16) 3 Total 25.32 111.42 95.47 4 Less: 5 Dividend Income 10.51 9.43 10.42 6 Gain from Valuation of 80.23 67.14 Investment 7 Net Other Income 14.81 21.76 17.91 8 Gross Taxable Income (1 + 598.06 584.04 595.49 7) 9 Exempt Income (as 10.51 13.19 10.43 returned) (includes exempt LTCG) 10 Total Income (8 + 9) 608.57 597.23 605.92 11 Exempt Income as % of 1.73% 2.26% 1.72% Total Income 12 Employee Expenses (Note 23.87 25.26 25.68 18) & 291/Ahd/2023 (By Assessee) and & 480/Ahd/2023 (By Revenue) Lok Prakashan Ltd. Vs. ACIT/DCIT Asst. Years : 2017-18 & 2018-19
13 Other Expenses (As 4.821 3.92 3.64 detailed under Sr. No. 18) 14 Total Admin Expenses (12 28.691 29.18 29.32 + 13) 15 Admin Expenses 4.73 17.37 24.32 Disallowed by AO After Adjustment of Suo Moto Disallowance 16 Expenses Disallowed as % 45.00% 131.69% 233.17% of Exempt Income 17 Exempt Income as % of 36% 45% 35% Total Admin Expenses 18 *Other Expenses Considered 1. Printing, Stationery & 0.85 0.85 0.64 Communication 2. Rent 0.76 0.2 0.21 3. Building Repairs 0.44 0.13 0.16 4. Bank Charges 0.15 0.13 0.12 5. Director Sitting Fees 0.001 0 0 6. Audit Fees 0.06 0.06 0.06 7. Misc Expenses 2.56 2.55 2.45 Total Other Expenses 4.821 3.92 3.64 7.3. As per the Sr. No. 16 in the table above it can be seen that the AO has disallowed 131.69% of exempt income in A.Y. 2017-18 and 233.17% of exempt income in A.Y. 2018-19 as compared to 45% in A.Y. 2016-17 which is unreasonable and not in line with the mechanism set in earlier year.
7.4. The AR also referred the decision of Co-ordinate Bench in case of the ACIT Vs LA Renon Healthcare Pvt. Ltd (ITA No. 69/Ahd/2020 dated 6-08- 2024) where it was held that Lack of recording specific dissatisfaction by AO invalidates additional disallowance made by AO over and above suo moto disallowance made by the assessee. & 291/Ahd/2023 (By Assessee) and & 480/Ahd/2023 (By Revenue) Lok Prakashan Ltd. Vs. ACIT/DCIT Asst. Years : 2017-18 & 2018-19
On the other hand, the Departmental Representative (DR) relied on the order of AO and pointed out that the AO has expressed his dissatisfaction in his order that the suo moto disallowance made by the assessee is not in accordance with Rule 8D of the IT Rules and issued a show cause notice accordingly.
After considering the facts and contentions of both parties, and following the binding judicial pronouncements, particularly in the assessee's own case for AY 2016-17, we note that in addressing the applicability of disallowance under Section 14A, a critical contention raised by the Revenue was that the assessee did not maintain separate books of accounts for the funds used in generating exempt income and those used in taxable operations. The AO relied on this aspect to justify the disallowance under Rule 8D, asserting that without separate records, it is not possible to ascertain the exact expenditure attributable to exempt income. The Hon’ble Supreme Court in the judgement of South Indian Bank Ltd. vs. CIT reported in (2021) 130 taxmann.com 178 (SC) directly dealt with the issue of the necessity of maintaining separate books of accounts for investments generating exempt income. The Supreme Court held that the absence of separate books of accounts for exempt and taxable income does not automatically justify a disallowance under Section 14A read with Rule 8D. The Apex Court emphasized that the AO must first examine the accounts of the assessee and provide a reasoned and specific dissatisfaction with the correctness of the claim made by the assessee regarding the expenditure related to exempt income. The Apex Court rejected the mechanical application of Rule 8D solely on the grounds of non-maintenance of separate books. The AO’s duty to & 291/Ahd/2023 (By Assessee) and & 480/Ahd/2023 (By Revenue) Lok Prakashan Ltd. Vs. ACIT/DCIT Asst. Years : 2017-18 & 2018-19 record dissatisfaction is not contingent upon the separate maintenance of books but rather on a substantive assessment of the evidence presented by the assessee. In the present case, as per the Supreme Court’s directives in South Indian Bank Ltd., the AO’s failure to specifically address why the suo moto disallowance was incorrect undermines his justification for applying Rule 8D. The AO did not quantify or establish that the actual expenses were misallocated, which makes the extensive disallowance under Rule 8D unsustainable.
9.1. The AO applied Rule 8D without a clear and explicit recording of dissatisfaction with the assessee’s suo moto disallowance. The assessee argued, citing the judgement of Hon’ble Apex Court in case of Maxopp Investment Ltd., that the AO’s approach lacked the requisite speaking order rejecting the assessee’s calculation. We find this argument persuasive and note that the AO’s failure to substantiate his dissatisfaction invalidates the blanket application of Rule 8D in this case.
9.2. In order to quantify the disallowance u/s 14A, one possible view is to restrict the 14A disallowance to exempt income, which is held in many judicial precedents. But this would lead to disproportionate disallowance u/s 14A. As it is evident from the table of comparable data presented by the AR, the exempt income ranges from 35% to 45% of total administrative expenses ( Sr. No. 17) where as exempt income ranges from 1.72% to 2.26% of total income ( Sr. No. 11). This is the unintended consequence of limiting the disallowance to exempt income, hence we reject the same view. & 291/Ahd/2023 (By Assessee) and & 480/Ahd/2023 (By Revenue) Lok Prakashan Ltd. Vs. ACIT/DCIT Asst. Years : 2017-18 & 2018-19 9.3. The Co-ordinate Bench in the assessee’s own case for AY 2016-17 dealt with a similar disallowance issue under Section 14A and restricted the disallowance to 5% of the administrative expenses, considering it a reasonable approach given the facts and circumstances of the case. This decision was based on maintaining judicial discipline and avoiding arbitrary disallowances, aligning with the need to ensure consistency in successive years. Given the identical facts and similar issues in AY 2017-18 and AY 2018- 19, we find no compelling reason to deviate from the approach taken in AY 2016-17. It is noted that judicial consistency is paramount, and the disallowance mechanism set in the earlier year should be followed to avoid unwarranted litigation and disturbance to the settled position of law. In light of these judicial precedents, we do not subscribe to the preposition of AR to restrict the disallowance u/s 14A to suo moto disallowance. By adhering to judicial precedents and maintaining consistency in judicial discipline, we would like to ensure that the disallowance under Section 14A is fair, reasonable, and in line with established legal principles.
9.4. We, therefore, partly allows the assessee’s ground of appeal, restricting the disallowance under Section 14A to 5% of the other administrative expenses as per the established method in AY 2016-17. The AO is directed to verify the details from the financial statements and compute the amounts for the respective assessment years.
9.5. The ground related to 14 A disallowance in case of assessee’s appeal is partly allowed and revenue’s ground is dismissed. & 291/Ahd/2023 (By Assessee) and & 480/Ahd/2023 (By Revenue) Lok Prakashan Ltd. Vs. ACIT/DCIT Asst. Years : 2017-18 & 2018-19 On the grounds relating to Disallowance of Business Development Expenses.
The assessee claimed business development expenses in both AY 2017- 18 and AY 2018-19, primarily related to promotional activities, such as the "Lavajam Scheme," which aimed to retain and attract customers. The expenses were consistently incurred in the normal course of business and were claimed as revenue expenses in the profit and loss account. The assessee argued that these expenses were essential for expanding its customer base and enhancing business operations. In both assessment years, the AO disallowed the business development expenses, treating them as capital in nature. The AO’s main observations were such that the expenses were not directly linked to increased revenue or business growth in the immediate term, suggesting they provided long-term benefits rather than immediate operational gains. The AO classified the expenses as capital expenditures, arguing that they created enduring benefits for the business. Past disallowances of similar expenses were cited to justify the AO’s stance that these expenses were not allowable as revenue expenditures.
10.1. The CIT(A) deleted the disallowances made by the AO for both assessment years. The CIT(A) reviewed the earlier decisions of the Co- ordinate Bench in the assessee's own case, specifically focusing on the assessment years where similar business development expenses were under scrutiny. The CIT(A) noted that the Co-ordinate Bench had previously examined the same nature of expenses and upheld them as revenue expenditures, incurred wholly and exclusively for the purpose of business. The Co-ordinate Bench, in its earlier orders, observed that the business & 291/Ahd/2023 (By Assessee) and & 480/Ahd/2023 (By Revenue) Lok Prakashan Ltd. Vs. ACIT/DCIT Asst. Years : 2017-18 & 2018-19 development expenses, particularly those related to promotional schemes, were incurred to promote the business and enhance the subscriber base and had categorically held that such expenses were integral to the business operations and could not be treated as capital in nature, as no new capital asset was created. The CIT(A) emphasized the importance of consistency in judicial decisions, especially when the facts and circumstances remain unchanged across different assessment years. Citing the orders for earlier years, the CIT(A) pointed out that the Revenue had accepted these expenses as revenue in nature in the past, and there was no justification for taking a different stance in the current year.
10.2. During the course of hearing before us the DR relied on the order of AO and the AR placed reliance on the decision of Co-ordinate Bench in assessee’s own case relating to A.Y. 2016-17 in dated 09/12/2022. The DR informed that the Revenue has preferred an appeal before the Jurisdictional High Court for the A.Y. 2005-06 and onwards till A.Y. 2009-10. The AR stated that all these appeals are pending before the Hon’ble Gujarat High Court submitted copies of status report in case of Tax Appeal No. 60 and 68 relating to A.Y. 2005-06 and 2009-10 respectively.
10.3. After considering the rival submissions, perusing the orders of the lower authorities, and examining the relevant materials on record, it is noted that no new material or distinguishing factors have been presented by the Revenue that would justify deviating from the Tribunal’s well-reasoned findings in the assessee’s own case for the earlier years. Consistency in judicial decisions is paramount, especially when the facts and circumstances & 291/Ahd/2023 (By Assessee) and & 480/Ahd/2023 (By Revenue) Lok Prakashan Ltd. Vs. ACIT/DCIT Asst. Years : 2017-18 & 2018-19 remain unchanged. Therefore, the principles of judicial discipline necessitate following the Co-ordinate Bench’s earlier decisions.
10.4. In light of the above, we uphold the order of the CIT(A) deleting the disallowances of business development expenses for A.Y. 2017-18 and A.Y. 2018-19. The appeal of the Revenue is dismissed accordingly.
Order pronounced in the Open Court on 27th September, 2024 at Ahmedabad.