D.C.I.T CIR - 8,KOLKATA, KOLKATA vs. M/S CELICA DEVELOPERS PVT LTD, KOLKATA

IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH: KOLKATA [Before Shri Mahavir Singh, JM & Shri Waseem Ahmed, AM]

I.T.A No.583/Kol/2013 Assessment Year: 2009-10 M/s. Celica Developers Pvt. Ltd. Vs. Deputy Commissioner of Income-tax, (PAN: AABCC3820C) Central Circle-VI, Kolkata. (Appellant) (Respondent) & I.T.A No.1208/Kol/2013 Assessment Year: 2009-10 Deputy Commissioner of Income-tax Vs. M/s. Celica Developers Pvt. Ltd. Circle-8, Kolkata. (Appellant) (Respondent)

Date of hearing: 15.10.2015 Date of pronouncement: 29.10.2015

For the Appellant: Shri Ravi Tulsiyan, FCA For the Respondent: Shri P. B. Pramanick, JCIT, Sr. DR

ORDER Per Shri Mahavir Singh, JM: Both these cross appeals by assessee and revenue are arising out of order of CIT(A), Central-1, Kolkata in Appeal No. 153/CC-VI/CIT(A)C-1/11-12 dated 05.02.2013. Assessment was framed by DCIT, Central Circle-VI, Kolkata u/s. 143(3) of the Income-tax Act, 1961 (hereinafter referred to as “the Act”) for AY 2009-10 vide its order dated 31.12.2011. 2. First, we take up ITA No. 583/K/2013 (Assessee’s appeal). At the outset, Ld. Counsel for the assessee stated that he has instruction from the assessee not to prosecute this appeal and so, he wants to withdraw this appeal. On query from the bench, Ld. Sr. DR has not objected to the withdrawal of this appeal. Accordingly, we permit the withdrawal of the same. Therefore, the appeal of assessee is dismissed as withdrawn. 3. Now, we take up ITA No. 1208.K.2013 (Revenue’s appeal). The first issue in this appeal of revenue is against the order of CIT(A) deleting the disallowance computed by the AO by invoking the provisions of section 14A of the Act read with Rule 8D of the I. T. Rules, 1962. For this, revenue has raised following ground no.1:

2 ITA No.583 & 1208/Kol/2013 M/s. Celica Developers Pvt. Ltd. AY 2009-10 “1. That on the facts and circumstances of the case and in law, the Ld. CIT(A) erred in allowing relief to the assessee u/s. 14A of the I. T. Act, whereas AO was correct in computing disallowance u/s. 14A of the I. T. Act, 1961.” 4. Briefly stated facts are that the assessee company has received dividend of Rs.1,10,76,617/- and claimed the same as exempt. The AO on perusal of the P&L Account required the assessee to explain as to why expenditure attributable to earning of exempt income should not be disallowed in view of the provisions of section 14A of the Act read with Rule 8D of the I. T. Rules. The assessee also explained that it had already offered disallowance of Rs.1,10,766/- including de mat charges amounting to Rs.12,250/-. But the AO computed the disallowance at Rs.54,66,586/- by observing that the administrative expenditure needs to be incurred for maintenance of investments from where the assessee is earning exempt income and accordingly, he computed the disallowance as under: “Opening value of investment as on 1.4.2008 Rs.109,32,88,110/- Closing value of investment as on 31.3.2009 Rs.113,57,48,164/- Total value of investment Rs.222,90,36,274/- Less: Income bearing investment Rs. 4,24,02,002/- Rs.218,66,34,272/- Average value of investment Rs.109,33,17,136/- 0.5% thereon comes to Rs.54,66,586/-.” Aggrieved, assessee preferred appeal before CIT(A), who following the order of earlier assessment year deleted the disallowance vide para 4 as under: “4. Ground no. 2 relates to the disallowance of Rs.54,66,586/- by applying the provisions of section 14A read with rule 8D. This issue has been decided vide my order dated the 8th June, 2012 in the case of the appellant for the assessment year 2008-09 in Appeal No. 204/CC-VI/CIT(A)C-1/10-11. Following the decision, the AO is directed to delete the disallowance of Rs.54,66,586/- and accept that of Rs.1,10,766/- as offered by the appellant in course of the assessment proceedings. Ground no. 2 is allowed.”

Aggrieved, now revenue is in appeal before us. 5. At the outset, ld. Counsel for the assessee drew our attention to the Tribunal’s order in assessee’s own case in ITA No. 1528/Kol/2012 for AY 2008-09 dated 19.02.2014, wherein similar disallowance was deleted by observing as under: “9. We have heard the rival contentions and seen the material available on record. A perusal of assessee’s balance-sheet as on 31.03.2008, which has been placed at page 5 of the paper book, show that opening investment as on 01.04.2007 was Rs.110,12,51,839/- and closing value of investment as on 31.03.2008 was Rs.109,32,88,180/-. Schedule ‘E of the said balance-sheet gives a break-up of investment. As per this schedule, out of the above investment, Rs.107,35,58,387/- was of shares held in Magma Shrachi Finance Ltd.. The position was same both at the beginning of the relevant previous year and as at the

3 ITA No.583 & 1208/Kol/2013 M/s. Celica Developers Pvt. Ltd. AY 2009-10 end of the relevant previous year. Thus there is substantial strength in the argument of assessee that out of the total investment of Rs.109,32,88,180/-, major part was of shares in M/s. Magma Shrachi Finance Ltd. It is not disputed by the Revenue that these shares came to the assessee by virtue of a merger of one M/s. Stratus Developers (P) Ltd. with assessee, through Company Petition No. 492 of 2005. Company Application No. 551 of 2005 has been placed at paper book pages 203 to 222. Such shares were thus not a direct acquisition done by assessee. Therefore, for making such investment and for holding such shares, it cannot be said that assessee would have incurred substantial expenditure. Assessee had not purchased or sold any of the shares of M/s. Magma Shrachi Finance Ltd. during the relevant previous year. We also find that Assessing Officer had not made any disallowance for interest. While applying Rule 8D(2) Assessing Officer had only made a disallowance under clause (iii) thereof. Thus he has accepted that no loan funds were used by assessee for the purpose of making the investments. Investment made by assessee during the relevant previous year was Rs.1,96,69,793/- only. When viewed from this angle, we cannot say that the suo motu disallowance of Rs.88,390/- made by assessee was incorrect or unbelievable. The satisfaction recorded by the Assessing Officer with regard to the claim of expenditure made by the assessee is reproduced hereunder :- “The submissions of the assessee company have been considered carefully and the same is not acceptable at all. In this context, it is to be mentioned that involvement of top management is required for making decision for investment. It is a strategic decision. A question whether to invest or not to invest is always taken by the Top Management. Further, the decision regarding retention or sale of investment is very complicated. Therefore, proportionate management and administrative expenses is required to be deducted while computing the exempt income, in this case, income from dividend. In other words, financial & administrative expenses are always intrinsically related to such investments and disallowances are required to be made on the basis of provision of sec. 14A read with Rule 8D of I.T. Act, 1961”. Rule 8D(1) specifically states that determination of disallowance under Sub-Rule (2) can be done only when Assessing Officer is not satisfied with the correctness of the claim of expenditure made by the assessee. Such a satisfaction has to be an objective one based on cogent reason as held by coordinate Bench of this Tribunal in the case of REI Agro Limited (supra), which was upheld by the Hon’ble jurisdictional High Court on Revenue’s appeal. The decision taken by the Assessing Officer to make a proportionate disallowance for management and administrative expenditure was simply based on pre-assumptions. There is no cogent reason mentioned for disregarding the claim of the assessee especially when it had explained the nature of investment and as to why substantial expenditure was not required to be incurred by it. In such circumstances, we are of the opinion that ld. CIT(Appeals) was justified in holding that Assessing Officer could not have applied Rule 8D(2)(iii) of the Act and made a disallowance of ½ percent of average value of investment. Ld. CIT(Appeals) was, therefore, justified in deleting such disallowance. We do not find any reason to interfere with the order of ld. CIT(Appeals). Ground No. 1 of the Revenue stands dismissed.”

4 ITA No.583 & 1208/Kol/2013 M/s. Celica Developers Pvt. Ltd. AY 2009-10 “2. That on the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the addition made by the AO on accounts of treating interest as non-allowable expenditure u/s. 36 of the I. T. Act, 1961.”

Aggrieved, revenue is in appeal before us. 9. We have heard rival submissions and gone through facts and circumstances of the case. We find that this issue is also dealt with by Tribunal in assessee’s own case in ITA No. 1528/Kol/2012 for AY 2008-09 dated 19.02.2014, wherein Tribunal has deleted the addition vide para 17 of its order as under: “17. We have heard the rival contentions. Business of assessee as mentioned in the Tax Audit Report, copy of which has been placed at paper book page nos. 22 to 40, was real estate, trading in shares and securities and guest house business. There is no case for the revenue that advance given by the assessee was for any trading activities in shares and securities or in relation to its guest house business. Claim of assessee was that it was not doing any business of construction of buildings but only buying constructed flats and spaces and selling it. This claim has not been found to be wrong by the Assessing Officer. It might be true that during the relevant previous year or preceding years, assessee had not shown sale of any real estate. However, its operational profits which formed a major chunk of its income, given in schedule ‘M’ to its Profit & Loss a/c placed at paper book page no.13 clearly prove that it was receiving substantial rent and occupancy charges. No builder’s activity is traceable from the nature of expenditure shown in the Profit & Loss account. Assessee had not shown any expenditure for any construction. Its balance-sheet placed at page 5 of the paper book does not carry any work-in-progress except capital work-in-progress of Rs.1,38,53,207/-. Such capital work-in-progress was a part of its fixed assets. Therefore, there is nothing on record to show that during the relevant previous year assessee was doing any business as a builder. In our opinion, to fasten a completed contract method of accounting on an assessee who is not doing any construction or

5 ITA No.583 & 1208/Kol/2013 M/s. Celica Developers Pvt. Ltd. AY 2009-10 undertaking any project work, will not be appropriate. Tax Audit Report of the assessee clearly mentioned that it was following accrual method of accounting. In such a situation assertion of the assessee that its intention in paying advances was to acquire built up spaces and flats, which would eventually be its stock-in-trade cannot be disbelieved. In other words, advances were not paid by the assessee for acquiring any fixed asset. It was a necessary payment for acquiring stock-in-trade for carrying on its business of real estate. In this regard, section 36(1)(iii) which is relevant is reproduced hereunder:- “The amount of the interest paid in respect of capital borrowed for the purposes of the business or profession: Provided that any amount of the interest paid, in respect of capital borrowed for acquisition of an asset for extension of existing business or profession (whether capitalized in the books of account or not); for any period beginning from the date on which the capital was borrowed for acquisition of the asset till the date on which such asset was first put to use, shall not be allowed as deduction. Explanation – Recurring subscriptions paid periodically by shareholders, or subscribers in Mutual Benefit Societies which fulfil such conditions as may be prescribed, shall be deemed to be capital borrowed within the meaning of this clause”. A claim of interest on capital borrowed for the purpose of business can be disallowed only where the borrowing is for acquisition of an asset intended for extension of an existing business. In the case of the assessee here, we cannot say that the loan raised by assessee from ICICI Bank, which was utilized for paying advances for acquiring built up spaces, was in relation to extension of an existing business. Business of assessee was real estate and the assesese’s intention was to trade in constructed spaces. It never contemplated to use such constructed spaces for its own use. In our opinion, the decision of the Hon’ble Mumbai High Court in the case of Lokhandwala Construction Industries Ltd. (supra) would clearly come to the aid of assessee. As long as the payment of advance was not for acquisition of fixed assets but only for acquiring stock- in-trade, assessee was entitled for deduction under section 36(1)(iii) of the Act. We are, therefore, of the opinion that ld. CIT(Appeals) was justified in deleting the addition made by the Assessing Officer. Ground No. 2 of the Revenue stands dismissed.” 10. On query from the bench, ld. Sr. DR could not distinguish the earlier year’s order of Tribunal on facts of the case and rather facts are exactly identical and same amount of loan is under dispute. Respectfully following the Tribunal’s order in earlier assessment year, cited supra, we confirm the order of CIT(A) deleting the disallowance. This issue of revenue’s appeal is also dismissed.

Dated : 29th October, 2015

Jd. Sr. P.S

6 ITA No.583 & 1208/Kol/2013 M/s. Celica Developers Pvt. Ltd. AY 2009-10 Copy of the order forwarded to:

APPELLANT – M/s. Celica Developers Pvt. Ltd., 24 Park Street, 1. Kolkata-700016 Respondent – DCIT, Circle-VI & DCIT, Cir-8, Kolkata. 2 The CIT(A), Kolkata 3. 4. CIT Kolkata 5. DR, Kolkata Benches, Kolkata /True Copy, By order,

Asstt. Registrar.