Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, MUMBAI BENCH “I”, MUMBAI
Before: SHRI R.C.SHARMA & SHRI PAWAN SINGH
2 ITA No. 2365 & 2194/M/2013 M/s IDBI Bank Ltd.
PER PAWAN SINGH, JM: 1. These appeals are arising out of order of CIT(A)-24, Mumbai dated 12.12.2012 were heard together and are being disposed of by common order. 2. In ITA No. 2365/Mum/2013, the Revenue has challenged the validity of order on the following grounds: 1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in allowing the disallowance of MICR charges of Rs. 23,94,249/- u/s 40(a)(ia) of the I.T. Act as the decision of the Hon’ble Supreme Court relied on by him relates to section 201 of the Income Tax Act. 2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in allowing the disallowance of Rs. 58,94,437/- u/s. 40(a)(ia) of the I.T. Act as the decision of the Hon’ble Supreme Court relied on by him relates to section 201 of the Income Tax Act. 3. The appellant therefore, prayed that the order of the CIT(A) be set aside and that of the Assessing Officer be restored.
In ITA No. 2194/Mum/2013, the assessee has raised following grounds of appeal: 1. Reopening of assessment: The learned CIT(A),erred in justifying the re-opening of the assessment by the Assessing Officer u/s 147 of the Act after a period of four years from the end of the assessment year and when there was no failure on the part of assessee to fully and truly disclose all the material facts. 2. Disallowance of expenditure -Section 14A: The learned CIT (A), in law and on facts erred in confirming the disallowance of expenses, invoking the provisions of section 14A of the Income Tax Act 1961, for computing the book profit u/s 115JB. The manner and method of disallowance is also not in accordance with the law. 3.Interest levied u/s 234D of the Income Tax Act, 1961 The learned CIT(A), in law and on facts erred in confirming levy of interest u/s 234D. The CIT(A) ought to have held that interest u/s. 234D is not applicable in case of reassessment.
First we shall take up ITA 2194/M/2013. The brief facts of the case are that the assessee filed return of income for the relevant Assessment Year (AY) on 29/10/2005, declaring total income of Rs. Nil under the normal provision of the I.T. Act (for short the ‘Act’) and income amounting to Rs. 263,48,14,645/- u/s. 115JB of the Act. The assessment was completed u/s 143(3) of the Act on 31.11.2007 assessing the total income at Rs. 1796,96,08,020/-. The case of assessee was re-opened u/s. 147 of the Act and the reasons recorded for re-opening are reproduced below: “1. Assessee company filed return of income declaring total income of Rs. nil under normal provisions & Rs. 263,48,14,645/- u/s 115JB/-. Order u/s 143(3) was passed on 30/11/2007 assessing the total income of Rs. 1796,96,08,020/- 2. It is seen that in order u/s 143(3) dated 30/11/2007, the amount of Rs. 170790.09 lakhs was computed as total expenses towards earning of exempt income & this
3 ITA No. 2365 & 2194/M/2013 M/s IDBI Bank Ltd.
amount was not added back to book profits u/s 115JB as per explanation 1(f). Further, as per CIT(A) order dated 31/03/2009, the expenses disallowable u/s 14A have been computed at Rs. 106,26,80,655/-hence the amount of Rs. 105,06,70,665/- has to be added back to book profits u/s 115JB (Rs. 1,20,09,990/- having been added back already in book profits returned by assessee). 3. Information vide letter No. SRT/IT/TDS-Intimaticn-34/2009-10 Dated 10/03/2010 was received in LTU, Mumbai in April' 2010 wherein it was stated that assessee had paid Rs. 23,94,249/- as MICR charges to MICR centre manages by State Bank of India at Surat but had not deducted TDS on such charges u/s I94J Hence, I have reasons to believe that it is a failure on assessee's part to not add back the amount of Rs. 23,94,249/- to total income u/s 40a(ia). 4. Information vide letter No. DCIT.24(2)/Audit/2010-11 dated 13/07/2010 was received in LTU, Mumbai on 14/10/2010 wherein it was stated that assessee had paid Rs. 58,94,437/- to one Ratnakar Shetty, proprietor of M/s. Ratna Caterers but assessee had failed to deduct TDS on such payments. Hence, I have reasons to believe that it is a failure on assessee's part to not add back the amount of Rs. 58,94,437/- to total income u/s 40a(ia). 5. Accordingly, I have reasons to believe that income has escaped assessment due to failure on part of assessee u/s 147, second proviso on the issues above.
In response to the notice u/s. 148 of the Act, the assessee filed his reply dated 19.04.2011 and demanded reasons for re-opening and submitted that return filed on 29.10.2005 be treated as return of income in response to the said notice. The assessee submitted his explanation dated 10.08.11, wherein re-opening was objected being bad in law. Assessee contended that assessment was reopened after a period of four years from the end of AY. There was nothing to indicate in the reason to re-open on which assessment has been re-opened or there is a failure on the part of assessee to disclose fully and truly all the material facts necessary for the assessment. The objection of assessee was rejected. And order of re-assessment dated 05.09.2011 passed u/s. 143(3) r.w. section 147 of the Act, wherein AO made disallowance u/s. 14A, 40(a)(ia) of the Act and levied interest of Rs. 58,94,437/- u/s. 234D of the Act. 6. The assessee filed appeal before the CIT(A) challenging the validity of re-opening and other addition/disallowance u/s.14A and disallowance u/s. 40(a)(ia) of the Act. The CIT(A) after hearing the submission of the assessee, confirmed the re-opening, and disallowance u/s. 14A and partly deleted the addition u/s. 40(a)(ia) in the impugned order dated 12.12.2012, against which the present appeal is filed by the assessee before us. 7. Ld. AR of the assessee argued that the re-opening of assessment was made after a period of four years when there was no failure on the part of assessee in fully and truly disclosing all the material fact. Ld. AR of the assessee further argued that ground no.1
4 ITA No. 2365 & 2194/M/2013 M/s IDBI Bank Ltd.
is purely legal and goes to the root of the case and re-opening was in fact invalid, hence, the addition /disallowance made in the re-assessment are not sustainable. AR of the assessee has further argued that in para-4 of reasons for re-opening the statutory requirement of section 147 of the Act as provided under the 1st Proviso, the words “disclosed fully and truly all material fact necessary for his assessment for that AY” are missing. AR further invited our attention to 2nd Proviso to section 147 which refers about any financial interest which only in respect of any income in relation to any assets (including financial interest and entity located outside India chargeable to tax as escaped assessment for any AY. Ld. AR of the assessee relied on the Judgment of Hon’ble Bombay High Court in Bombay Stock Exchange vs. DDIT in Writ Petition No. 2468/2011 decided on 12.06.2014. 8. Ld. DR for the revenue has supported the finding of authorities below and argued that the CIT(A) had categorically held in para 4.3.1 of its order that AO re-opened the assessment u/s. 147 of the Act, 1961 on receipt of specific information from AO at Surat vide letter dated 10.03.2010 that assessee had paid a sum of Rs. 23,94,249/- as MICR charges to SBI MICR Centre without deduction of TDS u/s 194J of IT. Act, 1961. Hence, Assessing Officer had reasons to believe that there was a failure on the part of assessee to add back a sum of Rs. 23,94,249/- u/s 40(a)(ia) of I.T. Act, 1961. Another reason for reopening the assessment was that CIT(A) had decided assessee's appeal vide order dated 31/03/2009 and concluded in the order that in view of assessee's claim for exemption of dividend income u/s 10(34) of IT. Act, 1961, expenses of Rs. 106,26,80,655/- relatable to earning of such income were disallowable u/s 14A of IT. Act, 1961 read with rule 8D of I.T. Rules, 1962 and since only a sum of Rs. 120,09,990/- had been added back while computing book profits u/s 115JB of LT. Act, 1961, The balance amount of Rs. 105,06,70,665/- remained to be added back. Third ground for reopening the assessment was that information was received from DCIT 24(2) vide letter dated 13/07/2010 that assessee had paid Rs.58,94,437/- to a caterer without deduction of tax at source and the disallowance u/s. 40(a)(ia) of I.T. Act, 1961 was required to be made. Thus, Assessing Officer had reason to believe that income chargeable to tax had escaped assessment on account of failure on part of the assessee and reopened assessment u/s. 147 of I.T. Act, 1961 after following procedures and obtaining approval from CIT-LTU-Mumbai, and further argued that
5 ITA No. 2365 & 2194/M/2013 M/s IDBI Bank Ltd.
the assessee has not disclosed fully and truly all material facts necessary for the assessment and the re-opening was validly made by the AO on the basis of information received from State Bank of Surat about non-deduction of TDS. 9. We have heard the Ld. AR for parties and carefully considered the rival contentions of the parties and perused the material available on record and the various judgments cited by Ld. AR of the assessee and Ld. DR for the revenue in support of their rival contention. In Bombay Stock Exchange vs. DDIT in Writ Petition No. 2468/2011 decided on 12.06.2014 wherein Hon’ble jurisdictional High Court held: “He must disclosed in his reason as to which fact or material was not disclosed by the assessee fully and truly necessary for assessment of that AY, so as to establish the vital link in this safeguard against the arbitrary re-opening of the concluded assessment” 10. In Titanor Components Ltd. Vs. ACIT, reported vide 343 ITR 18, Hon’ble jurisdictional High Court categorically held “that the Power conferred by s. 147 does not provide a fresh opportunity to the AO to correct an incorrect assessment unless the mistake in the assessment so made is the result of a failure of the assessee to disclose fully and truly all material facts necessary for assessment-Where the AO does not record that there is a failure to disclose fully and truly all material facts necessary' for assessment; he would not be entitled to proceed under s. 147- In the instant case whet is recorded is that the petitioner has wrongly claimed certain deductions which it was not entitled to- There is a well known difference between a wrong claim made by an assessee after disclosing all the true and material facts and a wrong claim made by the assessee by withholding material facts-AO would be entitled to proceed under s. 147 only in the latter case-Impugned notice quashed and set aside. And further in case of Kimplas Trenton Fittings Ltd. vs. ACIT reported vide 70 DTR (Bom) 43 wherein it was held “that the re-opening is beyond four years, the escapement of income is not sufficient in itself to validate the reopening. The jurisdictional requirement where an assessment is opened beyond four years is a failure to disclose all material facts necessary for the assessment. Unless that condition is fulfilled,
6 ITA No. 2365 & 2194/M/2013 M/s IDBI Bank Ltd.
the re-opening cannot be sustained. All material facts were within the knowledge of the AO and were placed on the record by the assessee. The reasons which have been recorded by the Assessing Officer for reopening the assessment purport to state that subsequently, that is to say after "the order of assessment u/s 143(3) was passed on 29 September 2006, it has come to notice that the assessee had entered into an MOU with the Swiss Company for settlement of the outstanding loan which was however not offered to tax. Ex- facie, this reason is contrary to the record. This is not a fact which has subsequently come to notice but is something which was within the knowledge of the AO”. The 2nd Proviso of section 147 specially referred in respect of those cases including 11. financial interest which are located outside in India, chargeable to tax and escaped assessment for any AY. However, the 1st Proviso attached with section clearly cast a duty mandate on the AO to find out if the particular word disclosed fully and truly necessary for his assessment for that AY, the reasons recorded by the AO “the words absolutely missing in para-4 & 5 of the reasons recorded that as to which fact or material was not disclosed by the assessee in its return of income”. 12. Admittedly, there is no details given by AO as to which the fact or material was not disclosed by the assessee which lead to escape assessment. Merely referring a bald assertion that “I have reason to believe that it is a failure of assessee part or not to add back the amount of Rs. 58,94,437/- to the total income u/s. 40(a)(ia) of the Act” is not sufficient to frame notice for re-opening concluded assessment beyond the four years. Thus the notice (impugned notice u/s. 48 is bad in law) and does not qualify a sustainable notice under the scrutiny of law, hence, the legal ground raised by the assessee is allowed and the re-opening of assessment is declared as invalid. 13. The next grounds for our consideration are in respect of disallowance on expenditure u/s. 14A and interest levied u/s 234D of Act. As we have already concluded that re- opening of assessment is invalid, hence, the disallowances or additions or consequential interest made in the re-assessment order are became academic. ITA No. 2365/Mum/2013 14. This appeal is filed by the revenue against the impugned order dated 12.12.2012 passed by the CIT(A). While giving finding in the appeal No. 2194/Mum/2013, we
7 ITA No. 2365 & 2194/M/2013 M/s IDBI Bank Ltd.
have already declared the re-assessment order dated 15.09.2011 passed u/s. 143(3) r.w.s. 147 of the Act as invalid, hence, any discussion in respect of addition/disallowance has merely became academic in nature. 15. In the result, appeal filed by the assessee is allowed and appeal of the revenue is dismissed.
Order pronounced in the open court on this 30 March, 2016.
Sd/- Sd/- (R.C.SHARMA) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER मुंबई Mumbai; �दनांक Dated 30 /03/2016 S.K.PS आदेशक���त�ल�पअ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ�/ The Appellant 2. ��यथ�/ The Respondent. 3. आयकरआयु�त(अपील) / The CIT(A), Mumbai. 4. आयकरआयु�त/ CIT आदेशानुसार/BY ORDER, 5. �वभागीय��त�न�ध, आयकरअपील�यअ�धकरण, मुंबई/ DR, ITAT, Mumbai 6. गाड�फाईल / Guard file. स�या�पत��त //True Copy/ उप/सहायकपंजीकार (Asstt.Registrar) आयकरअपील�यअ�धकरण, मुंबई / ITAT, Mumbai