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Income Tax Appellate Tribunal, “A” BENCH, PUNE
Before: SHRI R.S.SYAL & SHRI S.S. VISWANETHRA RAVI
आदेश / ORDER PER S.S. VISWANETHRA RAVI, JM :
Both, the appeal and cross-objection filed by the Revenue and the assessee respectively are directed against the common order dated 04.10.2017 passed by the Ld. CIT(Appeals)-4, Pune for the assessment year 2013-14.
Shri Ronak Doshi, Ld. AR for the assessee submits that the issues raised in appeal and cross objection are based on same identical facts and requested to take both, the appeal and cross objection together. Upon hearing, Shri Mahadevan A M Krishnan, Ld. DR and with the consent of both the parties, we proceed to heard both, the appeal and cross objection together for the sake of convenience.
First we shall take up the appeal filed by the Revenue in 2013-14 for adjudication.
In this appeal, the Revenue has raised two grounds amongst which the only issue emanates for our consideration is as to whether the Ld. CIT(Appeals) is justified in deleting the addition made on account of provision of after sales costs by the Assessing Officer in the facts and circumstances of this case.
The Ld. DR relied on the order of the Assessing Officer and prayed to allow the grounds raised by the appellant /Revenue.
The Ld. AR drew our attention to the chart and submitted that the issue in question has been covered in favour of the assessee from assessment year 1998-99 and latest being assessment year 2011-12. He referred to Page No.60 of the paper book and submitted that the appellant Revenue raised similar grounds in assessment year 2011-12 and the Tribunal considered the earlier orders passed in assessee‟s own case which was followed by the Ld. CIT(Appeals) in assessment year 2011-12. The Ld. AR argued that the same finding of the Tribunal is applicable to the present year under consideration and prayed to dismiss the grounds raised by the appellant Revenue.
Heard both the parties and perused materials available on record. We note that the assessee claimed an amount of Rs.387.45 lakhs towards after sales costs. The Assessing Officer asked assessee to explain as to why the said amount should not be disallowed. We note that in response to the show cause, the assessee submitted its arguments which were reproduced by the Assessing Officer in his order. According to the Assessing Officer, the assessee failed to substantiate that an obligation was ever cast on the date of sale and no liability accrued. He held that the assessee is not entitled to claim deduction in respect of provision made towards after sales costs and added the same to the total income of the assessee.
Being aggrieved the assessee preferred an appeal before the Ld. CIT(Appeals) and filed written submissions in its support. The contention of the assessee before the Ld. CIT(Appeals) was that the provisions for after sales costs is made on a consistent, scientific and systematic basis over a period years and were allowable as expenditure. The assessee placed reliance on the decision of the Hon‟ble Supreme Court in the case of Rotork Controls India Limited reported in 314 ITR 62 and contended that the determined liability on a scientific basis could not be regarded as a contingent liability and the provision made should be allowed u/s.37 of the Income Tax Act, 1961 (hereinafter referred to as „the Act‟). The assessee also contended that the same provision is upheld by the Tribunal in assessee‟s own case in assessment years 1998-99 to 2007-08. Considering the same, the Ld. CIT(Appeals) held that the assessee is entitled to claim allowance and deleted the addition made by the Assessing Officer.
9. We note that the assessee utilized an amount of Rs.1.25 crores and reversed the balance. The outstanding unpaid amount at the end of the year is at Rs.38.12 lakhs. The assessee also submitted list of projects along with amount of provisions against each projects. However, in the assessment proceedings, the Assessing Officer found the same not acceptable and proceeded to disallow the claim of the assessee. Further, we note that from chart furnished by the Ld. AR, that, the same allowance has been granted in favour of the assessee from assessment year 1998-99 which is at page No.1 of the paper book. Further, appellant Revenue did not prefer an appeal before the Income Tax Appellate Tribunal for assessment year 2008-09 which clearly shows the appellant Revenue accepted the findings rendered by the Tribunal in earlier years. Further we note that the Assessing Officer also has given effect by allowing the claim of the assessee for assessment year 2005-06 which is at Page No.86 of the paper book. We also find order passed by the Assessing Officer for assessment year 2009-10 where no disallowance was made by the Assessing Officer under the head after sales costs. Thereby it clearly shows appellant Revenue has given effect of the order of the Tribunal in assessee‟s own case from assessment year 1998-99 and allowed the claim of the assessee.
We find the latest order being passed by the Tribunal for the assessment year 2011-12 at Page No.60 of the paper book wherein we find similar grounds were raised by the Revenue against the order of the Ld. CIT(Appeals) and this Tribunal did not interfere with the findings of the Ld. CIT(Appeals) in allowing the claim of the assessee. For ready reference, relevant portion of the decision of the Tribunal in assessee‟s own case for assessment year 2011-12 are reproduced herein below:
“3. The brief facts relating to the case on hand are that the assessee is a company engaged in the business of equipment manufacturing and sale of petroleum and distillation equipment. During the course of assessment proceedings, the AO asked the assessee to furnish the details of claim on account of warranty, but however, considering the disallowances concerning the said expenditure in earlier assessment years disallowed in the year under consideration. Likewise an amount of Rs.3,62,000/- on account of provision of after sales cost the AO disallowed the same since the appeals are pending of earlier years by the assessee filed against the same disallowances made. We note that the AO disallowed an amount of Rs.73,23,000/- and Rs.3,62,000/- only on account of the appeals of earlier years are pending. The CIT(A) by placing reliance on the orders of ITAT deleted the addition made by the AO. The relevant portion of para 5.2 of CIT(A) is reproduced here-in-below: “5.2 I have carefully perused the submissions of the appellant as well as the findings of the AO. The appellant has relied upon the decision of Rotork Controls India Pvt. Ltd. (supra) wherein Hon'ble Apex Court has held that where warranty is attached to the sale of a product, the provision gets attached thereby, and that liability then becomes ascertainable which is allowable. The appellant has also stated that consistent view has been taken by the Hon'ble Tribunal, Mumbai, in its own case, spanned across various assessment years, wherein it has deleted this disallowance made by the AO, and no further appeal has been filed against it, by Revenue, in High Court. It has been categorically stated that in AY 2006-07, the issue was referred back to the AO for verification, who after making the necessary verifications allowed the claim of the appellant for both the provisions. It has also been brought to my notice that same disallowance was made in AY 2008-09 and 2010-11, which was deleted by Ld. CIT(A), against which no appeal has been filed by the Revenue. It is further stated that after accepting the decision of Ld. CIT(A) in AY 2008-09, the AO has also dropped the penalty proceedings initiated in this case. Lastly, it has been stated that no disallowance of this nature has been made by the AO in AY 2009-10. In view of the facts brought out as above, it is clear that the issue stands settled in favor of the appellant. Accordingly, the addition made by the AO on account of Provision for 'Warranty of Rs.73,23,000/-, and Provision for After Sales cost of Rs.3,62,000/- is deleted. Ground No.1 is allowed.”
4. On perusal of the above, we find that the Tribunal in assessee‟s own case remanded the matter to the file of AO for verification and we note that after making necessary examination the AO allowed claim of assessee on account of warranty expenses and after sales cost for A.Y. 2006-07. Further, for A.Ys. 2008-09 and 2010-11 the CIT(A) deleted the addition made by the AO wherein the Revenue did not prefer an appeal before the Tribunal. Therefore, in our opinion the issue raised before us in ground No. 1 is settled in favour of assessee. Thereby, we find no interference is required from us and the order of CIT(A) is justified. Ground No. 1 raised by the Revenue is dismissed.”
In light of the above and discussion made by us in the aforementioned paragraphs, we find no reason to interfere with the findings of the Ld. CIT(Appeals) and accordingly, it is justified. Thus, grounds raised by the Revenue are dismissed.
In the result, appeal of the Revenue in is dismissed.
CO. No. 04/PUN/2021 A. Y. 2013-14 13. Now, we shall take up the Co No.04/PUN/2021 for the assessment year 2013-14 filed by the assessee. The only ground raised by the assessee challenging the action of the Ld. CIT(A) in confirming the disallowance made by the Assessing Officer u/s.14A r.w.r.8D(2) of the Income Tax Rules, 1962 ( hereinafter referred to as „the Rules‟).
Heard both the parties and perused the materials available on record. According to the Assessing Officer, the assessee made investment of Rs.12.98 Crores in Sulzer Chemtech Towerfield Services Pvt. Ltd. in the year 2009. Further, in order to acquire 100% subsidiary, the assessee made further investment Rs.7.64 Crores during the year under consideration. The assessee requested to give his stand as to why expenditure incurred with respect to the investment made in the year under consideration should not be disallowed. We note that it was substantiated no dividend has been received against the investment towards any capital gains during the year under consideration. The Assessing Officer did not accept the same and proceeded to compute the expenditure that may have incurred for making investment by invoking Rule 8D(2) of the Rules and disallowed the sum of Rs.18,25,952/- under Rule 8D(2)(ii) and sum of Rs.8,40,066/- under Rule 8D(2)(iii) of the Rules.
Having aggrieved, the assessee filed appeal before the Ld. CIT(A). The contention of the assessee was that originally investment that incurred are made as strategic investment in Sulzer Chemtech Towerfield Services Pvt. Ltd. in F.Y.2009-10 and F.Y.2012-13 respectively. The assessee made such investment from its share capital and free reserves funds. The assessee also reiterated the contentions made before the Assessing Officer that no disallowance is warranted in the absence of exempt income. The assessee also relied on the decision of the Hon‟ble Bombay High Court in the case of CIT Vs. Reliance Utilities & Power Limited reported in 313 ITR 340. The Ld. CIT(A) did not consider the submissions of the assessee and confirmed the order of the Assessing Officer.
Admittedly the fact remains undisputed that there was no exempt income earned by the assessee. It is a settled principle that no disallowance could be made u/s.14A of the Act when there is no exempt income. The Hon‟ble High Court of Bombay in the case of Pr. CIT Vs. Kohinoor Project Pvt. Ltd. of 2017 dated 27th January, 2020 on this issue has held as follows:
“8. Section 14A of the Act deals with expenditure incurred in relation to income not includible in total income. As per sub- Section (1) of Section 14A, for the purpose of computing the total income, no deduction shall be allowed in respect of expenditure incurred by the assessee in relation to income which does not form part of the total income. In Cheminvest Ltd. (supra) Delhi High Court examined the expression "does not form part of the total income" as appearing in sub-Section (1) of Section 14A of the Act. Delhi High Court held that the said expression envisages that there should be an actual receipt of income which is not includible in the total income during the relevant previous year for the purpose of disallowing any expenditure incurred in relation to the said income. It was clarified that Section 14A will not apply if no exempt income is received or receivable during the relevant previous year.
This view has been followed in several decisions by this Court. In fact in Income Tax Appeal No. 259 of 2017, Principal Commissioner of Income Tax, Mumbai v/s. MAN Infraprojects Ltd., decided on 09.04.2019, this Court followed the decision of the Delhi High Court in Cheminvest Ltd. (supra). It was further noted in MAN Infraprojects Ltd. that the decision of the Delhi High Court was challenged by the revenue before the Supreme Court by fling SLP but the SLP was dismissed.”
In view of the above facts and circumstances, we are of the considered view that since the assessee did not received any exempted income against the investment made; no disallowance u/s.14A is warranted. Hence, grounds raised by the assessee in cross objection are allowed.
In the result, CO No.04/PUN/2021 filed by the assessee is allowed.
In the combined result, appeal of the Revenue is dismissed and cross objection filed by the assessee is allowed.
Order pronounced on 07th day of May, 2021.