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Income Tax Appellate Tribunal, VISAKHAPATNAM BENCH, VISAKHAPATNAM
Before: SHRI DUVVURU RL REDDY, HON’BLE & SHRI S BALAKRISHNAN, HON’BLE
आयकरअपीलीयअधिकरण, धिशाखापटणम पीठ, धिशाखापटणम IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM श्री दुव्वूरु आर एल रेड्डी, न्याधयक सदस्य एिं श्री एस बालाकृष्णन, लेखा सदस्य के समक्ष BEFORE SHRI DUVVURU RL REDDY, HON’BLE JUDICIAL MEMBER & SHRI S BALAKRISHNAN, HON’BLE ACCOUNTANT MEMBER आयकर अपील सं./I.T.A.No.80/Viz/2021 & 81/Viz/2021 (ननधधारण वर्ा / Assessment Year : 2016-17 & 2017-18) Dy.Commissioner of Income Tax Vs. M/s K.P.R.Agrochem Ltd Circle-1 D.No.8-256, Tata Nagar Kakinada Balabhadrapuram East Godavari [PAN : AADCK0257B] (अपीलार्थी/ Appellant) (प्रत्यर्थी/ Respondent) आयकर अपील सं./I.T.A.No.221/Viz/2022 TO 223/Viz/2022 (ननधधारण वर्ा / Assessment Year : 2013-14, 2014-15 & 2015-16) M/s K.P.R.Agrochem Ltd Vs. Dy.Commissioner of D.No.8-256, Tata Nagar Income Tax Balabhadrapuram Circle-1 East Godavari Kakinada [PAN : AADCK0257B] अपीलधथी की ओर से/ Appellant by : Shri G.V.N.Hari, AR Shri A.Chakradhar, AR प्रत्यधथी की ओर से / Respondent by : Shri ON Hari Prasada Rao, DR सुनवधई की तधरीख / Date of Hearing : 20.03.2023 घोर्णध की तधरीख/Date of Pronouncement : 15.06.2023 आदेश /O R D E R Per Shri Duvvuru RL Reddy, Judicial Member : I.T.A.No.80/Viz/2021 & 81/Viz/2021, A.Y.2016-17 & 2017-18 These appeals are filed by the revenue against the orders of Commissioner of Income Tax (Appeals) [CIT(A)] -1, Visakhapatnam dated 17.09.2020 for the Assessment Year (A.Y.) 2016-17 and 2017-18. Since the grounds raised in these appeals are identical, these appeals are clubbed, heard together and a common order is being passed for the sake of convenience as under and the facts are extracted from I.T.A.No.80/Viz/2021, A.Y.2016-17.
2. Brief facts of the case are that the assessee company, generating power and manufacturing of basic chemicals, filed it’s return of income electronically. The case was selected for scrutiny under CASS and accordingly notices u/s 143(2) and 142(1) of the Act were issued and served to the assessee company. The Assessing Officer (AO) had completed the assessment by making disallowance u/s 14A and 80IA of the Act as below :
A.Y. Date Returned Income Assessed Income 2016-17 30.11.2016 6,31,51,040 8,17,95,305 3. On being aggrieved, the assessee preferred an appeal before the CIT(A) and the Ld.CIT(A) allowed the appeal of the assessee, by relying on the cases as detailed in the order of the Ld.CIT(A).
On being aggrieved, the revenue preferred an appeal before the Tribunal by raising the following grounds :
The Ld.CIT(A) erred in law and facts in deleting the disallowance of interest expenditure of Rs.70,01,395/-, made u/s 14A r.w.s. 8D, without considering the CBDT Circular No.5 of 2014 dated 11.02.2014, wherein the legislative intent was clarified that the expenses which are relatable to earning of exempt income have to be considered for disallowance, irrespective of the fact whether any such income has been earned during the financial year or not.
The Ld.CIT(A) erred in law and facts in deleting addition of Rs.1,16,42,870/- made u/s 80IA of the Act and holding that the assessee buys power from AP Transco at Rs.9.30 per unit when the fact is that power supplied by AP Transco is at price of Rs.7.15 per unit as adopted by the Assessing Officer. 3. The appellant craves leave to add or delete or amend or substitute any ground of appeal
before and / or at the time of hearing of appeal.
4. For these and other grounds that may be urged at the time of appeal hearing, it is prayed that additions made by the AO be restored.
5. Ground No.1 is related to deletion of disallowance of interest exepnditure of Rs.70,01,395/- u/s 14A r.w.s. 8D of the Act. The Ld.DR submitted that the Ld.CIT(A) erred in law and facts in deleting the disallowance of interest expenditure of Rs.70,01,395/-, made u/s 14A r.w.s. 8D, without considering the CBDT Circular No.5 of 2014 dated 11.02.2014, wherein the legislative intent was clarified that the expenses which are relatable to earning of exempt income have to be considered for disallowance, irrespective of the fact whether any such income has been earned during the financial year or not. The Ld.DR further submitted that the deletion of disallowance is not only erroneous, but, prejudicial to the interest of the revenue. He, therefore pleaded to quash the order passed by the Ld.CIT(A) and allow the appeal of the revenue on this ground.
6. Per contra, the Ld.AR submitted that the assessee made non- current (long term) investments in unquoted / unlisted equity shares for an amount of Rs.11.80 crores. In the current year, no dividend income was credited to P&L account and the assessee incurred interest expenditure of Rs.41,20,88,872/-. The assessee further submitted that the words “in relation to income which does not form part of the total income under the Act for such previous year” in the rule 8D(1) indicates a correlation between the exempt income earned in the assessment year and the expenditure incurred to earn it. In other words, the expenditure as claimed by the assessee has to be in relation to the income earned in such previous year, which implies that if there is no exempt income earned in the assessment year in question, the question of disallowance of the expenditure incurred to earn exempt income in terms of section 14A read with rule 8D would not arise. The assessee further submitted that the CBDT circular relied upon by the revenue does not refer to rule 8D(1) at all but only refers to the word “includible” occuring in the title to rule 8D as well as the title to section 14A. The circular concludes that it is 5 & 81/Viz/2021,221-223/Viz/2022 A.Y.2013-14 to 2017-18 M/s KPR Agrochem Ltd., East Godavari not necessary that exempt income should necessarily be included in a particular year’s income for the disallowance. The assessee further submitted that this would be truncated reading of section 14A and rule 8D particularly when rule 8D(1) uses the expression “such previous year”. Further, it does not account for the concept of “real income”. It does not note that under section 5, the question of taxation of “notional income” does not arise. Hence, the CBDT Circular dated 11th May 2014 cannot override the expressed provisions of section 14A read with Rule 8D. The assessee relied on the following decisons of the Hon’ble High Courts:
(i) Hon’ble High Court of Madras in the case of “Redington (India) Ltd. Vs. Addiitonal Commissoner of Income Tax, Co. Range V, Chennai, 392 ITR 633 (Madras) (ii) Hon’ble High Court of Delhi in the case of “Principal Commissioner of Income Tax-04 Vs. IL & FS Energy Development Company Ltd. [2017] 84 taxmann.com 186 (Delhi). In view of the foregoing facts and circumstances, the assessee pleaded to uphold the order passed by the Ld.CIT(A) and dismiss the appeal of the revenue on this ground.
We have heard both the parties, perused the material placed on record and also gone through the decisions relied by the counsel for the assessee. The main contention of the assessee is that in the current year, no dividend income was credited to P&L account. His further contention is that in relation to income which does not form part of the total income under the Act for such previous year in the rule 8D(1) indicates a correlation between the exempt income earned in the assessment year and the expenditure incurred to earn it. When there is no exempt income earned in the assessment year in question, the question of disallowance of the expenditure incurred to earn exempt income in terms of section 14A read with rule 8D would not arise. His further contention is that the CBDT Circular dated 11 May 2014 cannot override the expressed provisions of section 14A read with Rule 8D. He also relied on the following decisioons of the Hon’ble High Court of Madras and Hon’ble High Court of Delhi : a) Hon’ble High Court of Madras in the case of “Redington (India) Ltd. Vs. Additional Commissioner of Income Tax, Co.Range- V, Chennai (392 ITR 633 (Madras)”. b) Hon’ble High Court of Delhi in the case of “Principal Commissioner of Income-Tax-04 v. IL & FS Energy Development Company Ltd. [2017] 84 taxmann.com 186 (Delhi). While deciding the case in the case of Redington (India) Ltd. Vs. Additional Commissioner of Income Tax, Range-V, Chennai (supra), the Hon’ble High Court of Madras relied on the decision of the Hon’ble Supreme Court in the case of CIT Vs. Walfort Share & Stock Brokers (P.)
Ltd. [2010] 326 itr 1/192 Taxman 211 and concluded that the provisions of section 14A read with rule 8D of the rules cannot be made applicable to a vacuum i.e. in the absence of exempt income. In the case on hand also, there is no exempt income, therefore, we find force in the arguments of the assessee. The Ld.Counsel for the assessee also relied on the decisions of Hon’ble High Court of Delhi in the case of Principal Commissioner of Income Tax-04 Vs. IL & FS Energy Development Company Ltd. (supra). In this case also, Hon’ble High Court of Delhi has taken the same view and the court also said that the circular issued by the CBDT dated 11th May 2014 cannot override the expressed provisions of section 14A read with Rule 8D. The Ld.CIT(A) also relied on the decision of Hon’ble High Court of Madras in the case of Redington (India) Ltd. Vs.Additional Commissioner of Income Tax, Co.Range-V, Chennai (supra) and also the jurisdictional Tribunal in the case of Radhakrishna Automobiles Pvt. Ltd. and came to a conclusion that there is no dividend income credited to P&L account for the year ending 31.03.2017. In the case of disallowance u/s 14A of the Act, the condition precedent is receipt of exempt income. In the absence of this primary fact, there cannot be any disallowance u/s 14A r.w.Rule 8D of the Rules. The proposition has almost become a law following the decision of Hon’ble High Court of Madras in the case of Redington (India) Ltd., therefore, Ld.CIT(A) came to a conclusion that disallowance of expenditure is not warranted. Considering the ratio laid down by the Hon’ble High Court of Madras as well as the Hon’ble High Court of Delhi, we are of the view that this issue was already settled, therefore, we do not find any infirmity in the orders passed by the Ld.CIT(A). Hence, the ground raised by the revenue is dismissed.
As far as Ground No. 2 is concerned, the assessee claimed deduction u/s 80IA(8) of the Act. The case of the assessee is that the assessee company is having a captive power plant, therefore, the assessee claimed deduction u/s 80IA(8) in respect of power derived from the power plant. For this purpose, the assessee adopted a price of Rs.9.30 per unit of power consumed by its manufacturing units. The AO is of the view that the deduction can be granted only at the average price which APTRANSCO paid by it for purchasing power from other Power Generation Companies i.e.Rs.7.15 during the year under consideration. The Ld.AO adopted the above rates and disallowed the deduction u/s 80IA to the extent of Rs.2.15 per unit. On this aspect, the contention of the Ld.DR is that the AO has rightly adopted the average price which APTRANSCO paid by it for purchasing power from other power generation companies and therefore, submitted that the Ld.CIT(A) erred in allowing the appeal filed by the assessee. The Ld.DR relied on the decision of Hon’ble High Court of Calcutta in the case of Commissioner of Income Tax, Kolkata vs. ITC Ltd. [2015] 64 taxmann.com 214 (Calcutta). He pleaded to set aside the order passed by the Ld.CIT(A) and confirm the order of the AO.
Per contra, the Ld.Counsel for the assessee submitted that the issue is squarely covered by the Jurisdictional Tribunal in to 140/Viz/2016 and CO Nos. 32 to 34/Viz/2016 dated 25.10.2017 and in ITA No.481 to 483/Viz/2018 and CO No.135-137/Viz/2018 dated 25.01.2019 in the case of ACIT, Circle-1, Kakinada Vs. M/s Lalitha Enterprises Industries Private Ltd. In the said case, the Hon’ble Tribunal held that the assessee is justified in adopting the rate for power consumed by it internally @4.50 ps. per unit of power i.e. the rate at which the assessee paid to APTRANSCO instead of Rs.3.25 per unit i.e. the rate at which APTRANSCO is obtaining from other power plants. The AO is of the view that the assessee supplied the power to APEPDCL at Rs.3.40ps per unit and therefore, the same has to be considered in the case of unit-I of the assessee also. But the said issue, thus was settled in favour of the assessee by the jurisdictional Tribunal. Against the order of 10 I.T.A. No.80 & 81/Viz/2021,221-223/Viz/2022 A.Y.2013-14 to 2017-18 M/s KPR Agrochem Ltd., East Godavari the Tribunal, the revenue preferred appeal before the Hon’ble Jurisdictional High Court of Andhra Pradesh in I.T.T.A.No.252 of 2018, wherein, the Hon’ble jurisdictional High Court of Andhra Pradesh confirmed the orders passed by the Tribunal. While confirming the order, the Hon’ble High Court of Andhra Pradesh relied on the ratio laid down by the Hon’ble Supreme Court in the case of M/s Eveready Spinning Mills Pvt. Ltd, where the Hon’ble Supreme Court rejected the appeal filed by the revenue. Therefore, the Ld.Counsel for the assessee pleaded to confirm the orders passed by the Ld.CIT(A).
We have heard both the parties and perused the material available on record. The only core issue in this case is whether the assessee is allowed to adopt the price of power consumed by deriving profit and to make a claim. The assessee buys power from APTRANSCO @9.30 per unit, however, the AO adopted Rs.7.15 per unit, which is the average price at which APTRANSCO buys from other power plants. After considering the decision of the coordinate bench of the Tribunal in the case of Lalitha Enterprises Industries Private Limited (supra), it is clear that for the purpose of 80IA, profit of eligible undertaking has to be determined on the basis of actual lending cost of electricity purchased by the assessee from APTRANSCO. The said order was confirmed by the 11 & 81/Viz/2021,221-223/Viz/2022 A.Y.2013-14 to 2017-18 M/s KPR Agrochem Ltd., East Godavari Hon’ble jurisdictional High Court of Andhra Pradesh by following the decision of the Hon’ble Supreme Court in the case of M/s Eveready Spinning Mills Pvt. Ltd. Relevant extract of the order of the Hon’ble High Court of Andhra Pradesh in the case of Lalitha Enterprises Industries Private Ltd. is given below for reference.
3. On 17.07.2018 the appeal was adjourned ot enable the learned Standing Counsel to get instructions as to whether the Department filed any appeal against the decision of the Tribunal in M/s Everyday Spinning mills Pvt.Ltd. v.ACIT, Circle-I, Tirupur, and is so, what is the outcome of the said appeal. Mr. Raji Reddy placed before the Court the written instructions received from the Income Tax Officer(H.O.)-II Office of the Commissioner of Income Tax-II, Visakhapatnam. According to the written instructions, the Department carried in appeal the decision of the Tribunal in Everyday Spinning Mills Pvt. Ltd. and a Division Bench of the Madras High Court dismsised the appeal filed by the Department. The order of the Division Bench of the Madras High Court was further carried by way of appeal to the Supreme Court. The Supreme Court rejected the appeal filed by the Department. After perusing the findings recorded by the Tribunal as well as the Commissioner, taking note of the confirmation of the decision in Everyday Spinning Mills Pvt. Ltd., by the Supreme Court, we are satisfied that no ground is made out for entertaining the appeal. The appeal fails and the same is accordingly dismissed. There shall be no order as to costs.
Further, the Ld.CIT(A) also relied on the decsiion of the Chennai Bench of the Tribunal in the case of Eveready Spinning Mills Pvt.Ltd. in dated 30.11.2011, which was later affirmed by the Hon’ble Supreme Court, where the facts are similar and identical to 12 I.T.A. No.80 & 81/Viz/2021,221-223/Viz/2022 A.Y.2013-14 to 2017-18 M/s KPR Agrochem Ltd., East Godavari the instant case. The Ld.CIT(A) has rightly relied on the decision of the coordinate bench of this Tribunal which was subsequently confirmed by the Hon’ble High Court of Andhra Pradesh since the Hon’ble Supreme Court has affirmed the decision laid down in Eveready Spinning Mills Pvt Ltd. Reliance placed by the Ld.DR in the case of CIT Vs. ITC Ltd. (supra) is of no assistance to him. Therefore, we have no hesitation to come to the conclusion that the assessee is eligible to claim deduction at Rs.9.30 per unit. We do not find any infirmity in the orders passed by the Ld.CIT(A), since he had followed the ratio laiddown by the Tribunal as well as the Hon’ble Jurisdictional High Court of Andhra Pradesh. Hence, the grounds raised by the revenue are dismissed.
I.T.A.No.221-223/Viz/2022, A.Y.2013-14 to 2015-16
The assessee filed appeals against the orders of the CIT(A), National Faceless Appeal Centre (NFAC), Delhi for the A.Y.2013-14 to 2015-16. Since the grounds raised
in these appeals are common, these appeals are clubbed, heard together and a common order is being passed for the sake of convenience as under and the facts are extracted from I.T.A.221/Viz/2022. 13 & 81/Viz/2021,221-223/Viz/2022 A.Y.2013-14 to 2017
18. M/s KPR Agrochem Ltd., East Godavari
The assessee raised the following grounds :
1. The order of the CIT(A) is wrong in confirming the addition made by the AO of Rs.56,95,081/- u/s 14 r.w.Rule 8D without considering the facts that there is no fresh investment during the year and further the investment made in earlier years also out of interest free funds (share capital & reserves and surplus).
2. The understanding of the Hon’ble CIT(A) wrt Circular No.5 of 2014 dated 11/02/2014 is wrong. 3. The CIT(A) is wrong in relying on the explanaiton to FA 2022 below section 14A as the same is prospective in nature. 4. The CIT(A) ought to have appreciated that the AO erred in making addition of Rs.56,95,081/- u/s 14A r.w.Rule 8D when the appellant did not receive any exempted income during the relevant period. 5. The Hon’ble CIT(A) is wrong in placing reliance on the decision of Hon’ble Calcutta High Court in the case of CIT Vs. ITC Ltd. 6. The order of the Hon’ble CIT(A) is wrong in confirming the reduction of deduction u/s 80(I)(A) made by the assessing officer by opining that the value of power generated has to be restricted to actual price paid by the power distribution company to generating company. 7. The appellant craves leave to add amend / alter the grounds as the occasion may warrant. 13. Ground No.1 to 4 relate to disallowance of interest expenditure u/s 14A r.w.r.8D to the tune of Rs.56,95,081/-. Similar issue was adjudicated in the case of the revenue in I.T.A.No.80 & 81/Viz/2021 against the revenue and in favour of the assessee, which was already settled by the Hon’ble High Court of Madras in the case of Redington (India) Ltd. Vs. Additional Commissioner of Income Tax, Co.Range-V, Chennai (392 ITR 633 (Madras) and Hon’ble High Court of Delhi in the case of “Principal Commissioner of Income-Tax-04 v. IL & FS Energy Development Company Ltd. [2017] 84 taxmann.com 186 (Delhi). Therefore, we do not find any infirmity in the orders passed by the Ld.CIT(A). Hence, the grounds raised by the assessee are allowed.
14. Ground No.5 & 6 are related to reduction in deduction claimed u/s 80IA. The Ld.AR submitted that during the scrutiny proceedings, the AO had asked the assessee to show cause why the deduction should not be reduced based on the power rate claimed by the assessee and the power rate charged by the APEPDCL. The assessee during the scrutiny proceedings had submitted that the average cost per unit of power purchased from the AP Transco for the same period works out to Rs.6.70 per Kwh and the average cost of power generated through diesel generators works out to Rs.18.58 per Kwh. There was a scarcity of power from the AP Transco and the indusstries were left with no option to look for other sources of power either from private generator or captive generation. In computing the gain on captive generation, the assessee company can choose cost per unit of diesel generation for computing deduction under section 80IA for its captive generation power plant which is the most economic power available after state grid. This is as per the provision of section 80IA(B) of Income Tax Act, 1961. After considering the submissions of the assessee, the AO held that the assessee company valued power at higher rate just to increase the quantum of deduction u/s 80IA and restricted the value of power to actual price paid by the APEPDCL. The Ld.CIT(A), relying on the decision of Hon’ble High Court of Calcutta in [2015] 64 Taxmann.com 214 in the case of CIT Vs ITC Ltd. confirmed the restriction made by the AO, which is erroneous. He, therefore, pleaded to set aside the order passed by the Ld.CIT(A) and allow the appeal of the assessee on this ground.
15. Per contra, the Ld.DR relied on the order of the Ld.CIT(A). He pleaded to uphold the order passed by the Ld.CIT(A) and dimiss the appeal of the assessee on this ground.
We have heard both the parties and perused the material placed on record. Similarly, identical issue was adjudicated against the revenue in I.T.A.No.80 & 81/Viz/2021, relying on the decision of the coordinate bench of the Tribunal in the case of Lalitha Enterprises Industries Private Limited (supra). Therefore, the appeal filed by the assessee on this ground is allowed.
Ground No.7 is general in nature which does not require specific adjudicaton.
Since the grounds raised in I.T.A.No.222/Viz/2022 and 223/Viz/2022 are identical to the grounds raised in I.T.A.No.221/Viz/2022, which were adjudicated in favour of the assessee as per the previous paragraphs, the decision of the Tribunal shall mutatis mutandis apply to the I.T.A.No.222/Viz/2022 and 223/Viz/2022 for the A.Y.2014-15 and 2015-16 respectively.
In the result, appeals filed by the revenue in I.T.A.No.80 & 81/Viz/2021 are dismissed and the appeals filed by the assessee in I.T.A.No.221-223/Viz/2022 are allowed.
Order pronounced in the open court on 15th June, 2023. (एस बालाकृष्णन) (दुव्वूरु आर.एल रेड्डी) (S.BALAKRISHNAN) (DUVVURU RL REDDY) लेखा सदस्य/ACCOUNTANT MEMBER न्याधयक सदस्य/JUDICIAL MEMBER Dated : 15.06.2023 L.Rama, SPS