DCIT 2(1)(1), MUMBAI V. AMEYA LOGISTICS P.LTD, MUMBAI

ITA 1192/MUM/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 0669 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-05-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 01-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANADI VERMA
• Keywords: Opportunity of being heard; Earning of tax free income; Rule 8D; Set aside
• Section: 143(3); 142(1); 14A; 115JB; 80IB; 80IA; 143(2)

Judgement Text

A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI RAMLAL NEGI, JUDICIAL MEMBER ./ I.T.A. NO. 1192 / MUM/ 2018 ( / ASSESSMENT YEAR : 2014 - 15 DCIT 2(1)(1) R.NO. 561, 5 TH FLOOR, AAYAKAR BHAVAN, M.K ROAD, MUMBAI 400020 / V. M/S. AMEYA LOGISTICS P. LTD., 4 TH FLOOR, HAMILTON HOUSE,, B.J.N. HEREDIA MARG, BALLARD ESTATE, MUMBAI 400038 ./ PAN :AAECA 4562 C CO. NO.51/ MUM/2019 ARISING OUT OF ./ I.T.A. NO. 1192 / MUM/ 2018 ( / ASSESSMENT YEAR : 2014 - 15 M/S. AMEYA LOGISTICS P. LTD., 4 TH FLOOR, HAMILTON HOUSE,, B.J.N. HEREDIA MARG, BALLARD ESTATE, MUMBAI 400038 / V. DCIT 2(1)(1) R.NO. 561, 5 TH FLOOR, AAYAKAR BHAVAN, M.K ROAD, MUMBAI 400020 ./ PAN : AAECA 4562 C ( / APPELLANT ) .. ( / RESPONDENT ) REVENUE BY: SHRI. ANADI VERMA ASSESSEE BY: SHRI. MADHUR AGARWAL MISS. RUTUJA MEHTA / DATE OF HEARING : 05.03.2019 / DATE OF PRONOUNCEMENT : 17 .05.2019 / O R D E R I.T.A. NO.1192/MUM/2018 CO. NO.51/MUM/2019 2 | P A G E PER RAMLAL NEGI, JM THESE ARE THE APPEAL AND CROSS OBJECTION FILED BY THE REVENUE AND THE ASSESSEE RESPECTIVELY AGAINST THE ORDER DATED 15.12.2017 PASSED BY THE COMMISS IONER OF INCOME TAX(APPEALS) - 4 , MUMBAI WHEREBY THE LD. CIT(A) HAS PARTLY ALLOW ED THE APPEAL FILED BY THE ASSESSEE AGAINST THE ASSESSMENT ORDER PASSED U/S. 143(3) OF THE INCOME TAX ACT ( THE ACT) . 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE COMPANY ENGAGED IN THE BUSINESS OF PROVIDING WAREHOUSING SERVICES FOR GOODS AND CONTAINERS, CONTAINER STORAGE, PACKING AND UNPACKING OF ALL TYPES OF GOODS /MATERIAL , TRANSPORTATION AND RELATED SERVICES, FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERATION DECLARING TOTAL INCOME OF RS. 2,65,29,490/ - AFTER CLAIMING DEDUCTION U/S. 80IA AMOUNTING TO RS. 59,26,95,222/ - . 3. SINCE , THE CASE WAS SELECTED FOR SCRUTINY AO IS SUE D NOTICE U/S. 143(2) AND 142(1) OF THE ACT. IN RESPONSE TO THE SAID NO TICES AUTHORISED REPRESENTATIVE (AR) OF THE ASSESSEE APPEARED BEFORE THE AO AND FILED THE DETAILS C ALLED FOR. SINCE THE ASSESSEE H AD CLAIM ED DEDUCTION U/S. 80IA ( 4) OF THE ACT, AO ASK ED THE ASSESSEE TO JUSTIFY THE CLAIM OF DEDUCTION AND ALSO ASK ED TO S H O W CAUSE AS TO WHY THE CLAIM UNDER SECTION 80IA DISALLOWED. IN FACT THIS WAS THE 5 TH ASSESSMENT YEAR OF CLAIM OF DEDUCTION THE FIRST YEAR BEING AY 2010 - 11 AND THE DEDUCTION WAS DISALLOWED IN THE FIRST YEAR HOLDING THAT THE ASSESSEE S CONTAINER FREIGHTS STATION (CFS) IS NOT ELIGIBLE INFRASTRUCTURE FACILITY AS PROVIDED IN EXPLANATION 2 SECTION 80IA(4) OF THE ACT. ON THE SAME LINE THE AO REJECTED TH E CLAIM OF DEDUCTION U/S. 80IA OF THE ACT. ACCORDINGLY, THE ASSESSMENT ORDER WAS PASSED U/S. 143(3) OF THE ACT, INTER ALIA MAKING DISALLOWANCE OF DEDUCTION CLAIMED AFORESAID AND DETERMINED THE TOTAL INCOME OF THE ASSESSEE AT RS. 62,11,14,870/ - UNDER THE N ORMAL PROVISION S OF ACT AND RS. 62,33,47,707/ - U/S. 115JB OF THE ACT. THE ASSESSEE CHALLENGE D THE ASSESSMENT ORDER INTER ALIA ON THE GROUND THAT THE AO HAS WRONGLY REJECTED THE CLAIM OF THE I.T.A. NO.1192/MUM/2018 CO. NO.51/MUM/2019 3 | P A G E ASSESSEE MADE U/S. 80IA OF THE ACT. THE LD. CIT(A) AFTER HEARING T HE ASSESSEE ALLOWED THIS GROUND OF ASSESSEE AND DIRECTED THE AO TO ALLOW THE CLAIM. THE REVENUE IS IN APPEAL AGAINST THE SAID FINDINGS OF THE LD. CIT(A). 4 . THE REVENUE HAS CHALLENGE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) ON THE FOLLOWING EFFECTIVE GR OUND : - 1. 'WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD, CIT(A) WAS RIGHT IN HOLDING THAT THE ASSESSEE IS ENTITLED FOR DEDUCTION U/S 80IA OF THE IT ACT, 1961 EVEN THOUGH ACTIVITIES UNDERTAKEN BY THE ASSESSEE DO NOT FALL W ITHIN CLAUSE (D) OF THE EXPLANATION TO SECTION 80IA(4) DEFINING THE TERM INFRASTRUCTURE FACILITY?' 5 . AT THE OUTSET THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THIS GROUND OF APPEAL IS COVERED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF THE A BENCH OF THE MUMBAI TRIBUNAL RENDERED IN ASSESSEE S OWN CASE ITA NO. 492/MUM/2017, AY 2013 - 14. SINCE THIS ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE THERE IS NO INFIRMITY IN THE ORDER PASSED BY THE LD. CIT(A). HENCE THERE IS NO ANY MERIT IN THE APPEAL OF THE REVENUE. 6 . ON THE OTHER HAND THE LD. DR DID NOT CONTROVERT THE SUBMISSION MADE BY THE LD. COUNSEL THAT THE T RIBUNAL HAS DECIDED THE IDENTICAL ISSUE IN FAVOUR OF THE ASSESSEE IN ASSESSE E S OWN CASE FOR THE ASSESSMENT YEAR 2013 - 14. HOWEVER, THE LD. DR SUPPORTED THE ASSESSMENT ORDER. 7 . WE HAVE GONE THROUGH THE MATERIAL ON RECORD INCLUDING THE ORDERS RELIED BY THE AUTHORITIES BELOW AND THE ORDER OF THE TRIBUNAL . THE ONLY GRIEVANCE OF THE REVENUE IS THAT THE LD. CIT(A) HAS WRONGLY ALLOWED THE CLAIM OF ASSESSEE U/S. 80IA OF THE ACT. AS POINTED OUT BY THE LD. COUNSEL FOR THE ASSESSEE, THE COORDINATE B ENCH HAS DECIDED IDENTICAL ISSUE IN THE ASSESSEE S OWN CASE FOR THE AY 2013 - 14 HOLDING AS UNDER: - I.T.A. NO.1192/MUM/2018 CO. NO.51/MUM/2019 4 | P A G E 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD. IN THE CASE OF M/S CONTAINER CORPORATION OF INDIA LTD. (SUPRA), THE OPERATING ACTIVITIES OF THE ASSESSEE WERE MAINLY CARRIED OUT AT ITS INLAND CONTAINER DEPOTS (ICDS), CONTAINER FREIGHT STATIONS (CFSS) AND PORT SIDE CONTAINER TERMINALS (PSCTS) SPREAD ALL OVER THE COUNTRY. THE ISSUE IN THE ABOVE APPEAL WAS WITH REGARD TO THE DEDUCTION CLAIMED U/S 80IA ON THE PROFITS EARNED FROM ICDS AND ON ROLLING STOCKS. THEIR LORDSHIPS OF THE HON'BLE SUPREME COURT, DISMISSING THE APPEAL FILED BY THE REVENUE, HELD AS UNDER: '21. MOVING FURTHER TO THE ISSUE WHETHER THE ICDS CAN BE TERMED AS INLAND PORTS SO AS T O ENTITLE DEDUCTION UNDER SECTION 80 - IA OF THE IT ACT THE TERM PORT, IN COMMERCIAL TERMS, IS A PLACE WHERE VESSELS ARE IN A HABIT OF LOADING AND UNLOADING GOODS. THE TERM 'PORT' AS IS USED IN THE EXPLANATION ATTACHED TO SECTION 80 - IA(4) SEEMS TO HAVE MARIT IME CONNOTATION PERHAPS THAT IS THE REASON WHY THE WORD AIRPORT IS FOUND SEPARATELY IN THE EXPLANATION. CONSIDERING THE NATURE OF WORK THAT IS PERFORMED AT ICDS, THEY CANNOT BE TERMED AS PORTS. HOWEVER, TAKING INTO CONSIDERATION THE FACT THAT A PART OF ACT IVITIES THAT ARE CARRIED OUT AT PORTS SUCH AS CUSTOM CLEARANCE ARE ALSO CARRIED OUT AT THESE ICDS, THE CLAIM OF THE RESPONDENT HEREIN CAN BE CONSIDERED WITHIN THE TERM 'INLAND PORT' AS IS USED IN THE EXPLANATION. IT IS SIGNIFICANT TO NOTE THAT THE WORD 'IN LAND CONTAINER DEPOTS' WAS FIRST INTRODUCED IN THE DEFINITION OF'CUSTOMS PORT' AS IS GIVEN IN SECTION 2(12) OF THE CUSTOMS ACT, 1962, THROUGH AMENDMENT MADE BY THE FINANCE ACT, 1983 WITH EFFECT FROM 13.05.1983. 22. THE TERM 'INLAND PORT' HAS BEEN DEFINED N OWHERE. BUT THE NOTIFICATION THA T HAS BEEN ISSUED BY THE CENTRALBOARD OF EXCISE & CUSTOMS (CBEC) DATED 24.04.2007 IN TERMS HOLDS THAT CONSIDERING THE NATURE OF WORK CARRIED OUT AT THESE ICDS THEY CAN BE TERMED AS INLAND PORTS. FURTHER, THE COMMUNICATION DA TED 25.05.2009 ISSUED ON BEHALF OF THE MINISTRY OF COMMERCE AND INDUSTRY CONFIRMING THAT THE ICDS ARE INLAND PORTS, FORTIFIES THE CLAIM OF THE RESPONDENT HEREIN. THOUGH BOTH THE NOTIFICATION AND COMMUNICATION ARE NOT BINDING ON CBDT TO DECIDE WHETHER ICDS CAN BE TERMED AS INLAND PORTS WITHIN THE MEANING OF SECTION 80 - IA OF THE IT ACT, THE APPELLANT HEREIN IS UNABLE TO PUT FORWARD ANY REASONABLE EXPLANATION AS TO WHY THESE NOTIFICATIONS AND COMMUNICATION SHOULD NOT BE RELIED TO HOLD ICDS AS INLAND PORTS. UNL ESS SHOWN OTHERWISE, IT CANNOT BE HELD THAT THE TERM 'INLAND PORTS' IS USED DIFFERENTLY UNDER SECTION 80 - IA OF THE IT ACT. ALL THESE FACTS TAKEN TOGETHER I.T.A. NO.1192/MUM/2018 CO. NO.51/MUM/2019 5 | P A G E CLEAR THE POSITION BEYOND ANY DOUBT THAT THE ICDS ARE INLAND PORTS AND SUBJECT TO THE PROVISIONS OF TH E SECTION AND DEDUCTION CAN BE CLAIMED FOR THE INCOME EARNED OUT OF THESE DEPOTS, HOWEVER, THE ACTUAL COMPUTATION IS TO BE MADE IN ACCORDANCE WITH THE DIFFERENT NOTIFICATIONS ISSUED BY THE CUSTOMS DEPARTMENT WITH REGARD TO DIFFERENT ICDS LOCATED AT DIFFERE NT PLACES. 23. IN LIGHT OF THE FORGOING DISCUSSION, WE ARE OF THE VIEW THAT JUDGMENT OF THE HIGH COURT DOES NOT CALL FOR ANY INTERFERENCE AND, HENCE, THE APPEAL IS ACCORDINGLY DISMISSED.' 6.1 FACTS BEING IDENTICAL, WE FOLLOW THE ABOVE DECISION AND DISMISS THE 1ST GROUND OF APPEAL. 8 . T HE COORDINATE B ENCH HAS DECIDED THE IDENTICAL ISSUE IN FAVOUR OF THE ASSESSEE IN ASSESSE E S OWN CASE FOR THE AY 2013 - 14 AND THE DECISION OF THE LD. CIT(A) IS IN ACCORDANCE WITH THE DECISION OF THE COORDINATE BENCH . S IN CE THERE IS NO MATERIAL CHANGE IN THE FACTS OF THE PRESENT APPEAL, WE DO NOT FIND ANY INFIRMITY IN THE ORDER PASSED BY THE LD. CIT(A). WE ACCORDINGLY UPHOLD THE FINDINGS OF THE LD. CIT(A) HAS DISMISS THE SOLE GROUND OF APPEAL OF THE REVENUE. CO NO. 51/MUM/ 2019 THE ASSESSEE HAS FILED THE PRESENT CROSS OBJECTION ON THE FOLLOWING GROUNDS AS UNDER: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE MADE BY ASSESSING OFFICER UNDER SECTION 14A OF THE ACT R.W.R 8D OF INCOME TAX RULES AMOUNTING TO RS. 18,90,160/ - . 2. ON THE FACTS AND CIR CUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN MAKING ADDITION IN BOOK PROFIT U/S 115JB OF THE ACT OF RS. 18,90,160/ - ON ACCOUNT OF DISALLOWANCE UNDER SECTION 14A OF THE ACT. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, TH E LEARNED CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE MADE BY ASSESSING OFFICER OF FACILITY USAGE CHARGES OF RS. 53,28,302/ - WHILE COMPUTING DEDUCTION UNDER SECTION 80IA AND THUS REDUCING THE ASSESSEE'S CLAIM UNDER SECTION 80IA BY RS. 53,28,302/ - . I.T.A. NO.1192/MUM/2018 CO. NO.51/MUM/2019 6 | P A G E 2 . VIDE GROUND NO 1 THE ASSESSEE HAS CHALLENGED THE ACTION OF THE LD. CIT(A) IN CONFIRMING THE DISALLOWANCE MADE BY THE AO U/S 14A READ WITH RULE 8D. THE LD. COUNSEL SUBMITTED BEFORE US THAT THE ITAT HAS DEALT WITH THE IDENTICAL ISSUE IN ASSESSE E S OWN CASE FO R THE AY 2013 - 14 AND THE TRIBUNAL HAS SET ASIDE THE FINDINGS OF THE LD. CIT(A) CONFIRMING THE ADDITION U/S 14A R.W.R. 8DAND SENT THE ISSUE BACK TO THE AO WITH THE DIRECTION TO PASS THE ORDER AFRESH IN ACCORDANCE WITH THE DECISION OF THE ITAT MUMBAI RENDERE D IN THE ASSESSEE OWN CASE ITA N O. 5606/MUM/2016 FOR THE AY 2012 - 13. 3 . ON THE OTHER HAND THE LD. DR RELIED UPON THE ORDER PASSED BY THE AUTHORITIES BELOW. 4 . WE HAVE GONE THROUGH THE RECORD IN THE LIGHT OF THE SUBMISSIONS OF THE PARTIES. AS POINTED OUT BY THE LD. COUNSEL FOR THE ASSESSEE THE COORDINATE BENCH OF THE TRIBUNAL HAS DEALT WITH THIS GROUND OF APPEAL AND SET ASIDE THE ORDER OF THE LD. CIT(A) CONFIRMING DISALLOWANCE MADE U/S. 14A R.W.R . 8DAND SEN T THE ISSUE RELATING TO ADDITION U/S. 14A R. W.R. 8D BA CK TO THE AO FOR DECIDING THE ISSUE AFRESH. THE FINDING OF THE COORDINATE B ENCH IS REPRODUCED HERE UNDER: - 11. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. IN RESPECT OF THE DISALLOWANCE UNDER RULE 8D(2)(II), WE FIND FROM AUDITED ACCOUNTS THAT THE ASSESSEE HAD MORE OWN FUNDS THAN INVESTMENTS. THEREFORE, FOLLOWING THE DECISION IN HDFC BANKS LTD. (SUPRA) AND RELIANCE UTILITIES & POWER LTD. (SUPRA) THE DISALLOWANCE OF RS.18,05,184/ - MADE BY THE AO UNDER RULE 8D(2)(II) IS DELETED. 11.1 REGARDING THE DISALLOWANCE OF RS.16,17,152/ - MADE BY THE AO UNDER RULE 8D(2)(III), WE MAY REFER HERE TO THE LATEST DECISION OF THE ITAT 'D' BENCH, MUMBAI IN ASSESSEE'S OWN CASE FOR AY 2012 - 13 (ITA NO. 5606/MUM/2016) WHICH READS AS UNDER: '1 5. AS REGARDS THE DISALLOWANCE U/S. 8D(2)(III), IT IS NOTED THAT EARLIER THE ASSESSEE HAS NOT PRESSED THIS ISSUE AND, HENCE, THE ADDITION @ 0.5% OF THE AVERAGE VALUE OF THE INVESTMENT WAS CONFIRMED BY THE ITAT IN THE EARLIER YEAR. NOW, I.T.A. NO.1192/MUM/2018 CO. NO.51/MUM/2019 7 | P A G E THE ID. COUNSEL OF T HE ASSESSEE HAS PRAYED THAT THE ASSESSEE NEEDS TO BE GRANTED RELIEF IN THIS REGARD WITH REFERENCE TO THE DECISION OF THE ITAT SPECIAL BENCH IN THE CASE OF ACIT VS. VIREET INVESTMENT P. LTD. VIDE ORDER DATED 16.06.2017, WHEREIN IT WAS EXPOUNDED THAT THE INV ESTMENT WHICH DID NOT YIELD EXEMPT INCOME SHOULD NOT ENTER INTO THE COMPUTATION WHILE ARRIVING AT THE AVERAGE VALUE OF INVESTMENT THE INFERENCE HENCE IS THAT THE DISALLOWANCE U/S. 8D(2)(III) SHOULD BE MADE ONLY WITH REFERENCE TO THE INVESTMENT WHICH EARNED EXEMPT INCOME. HENCE, THE ID. COUNSEL OF THE ASSESSEE PLEADED THAT WHILE MAKING THE DISALLOWANCE IN THIS REGARD, THE RATIO FROM THE SPECIAL BENCH DECISION SHOULD BE FOLLOWED. 16. UPON CAREFUL CONSIDERATION, WE FIND OURSELVES IN AGREEMENT WITH THE SUBMISS IONS OF THE ID. COUNSEL OF THE ASSESSEE. WE DIRECT THE ASSESSING OFFICER TO MAKE THE COMPUTATION OF DISALLOWANCE U/S. 8D(2)(III) OF THE ACT BY EXCLUDING THE INVESTMENT WHICH HAVE NOT EARNED ANY EXEMPT INCOME DURING THE YEAR IN THE COMPUTATION IN ACCORDANCE WITH THE AFORE - SAID SPECIAL BENCH DECISION.' FACTS BEING IDENTICAL, WE DIRECT THE AO PASS A FRESH ORDER BY FOLLOWING THE ABOVE ORDER OF THE TRIBUNAL, AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE DIRECT THE ASSESSEE TO FILE THE R ELEVANT DOCUMENTS/EVIDENCE AND THE ABOVE WORKING OF DISALLOWANCE BEFORE THE AO. THUS THE 2 ND GROUND OF APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 5. THE COORDINATE BENCH HAS DEALT WITH THE IDENTICAL ISSUE IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 20 13 - 14 AND THE BENCH HAS SET ASIDE THE ORDER PASSED BY THE LD. CIT (A) CONFIRMING DISALLOWANCE U/S 14A READ WITH RULE 8D AND SEND THE ISSUE BACK TO THE AO FOR DECIDING THE SAME AFRESH AS PER THE DIRECTIONS OF THE COORDINATE BENCH ISSUED IN THE ASSESSEES OW N CASE ITA NO. 5606/MUM/2016 A.Y. 2012 - 13. THE LD. DR DID NOT POINT OUT ANY CHANGE IN THE MATERIAL FACTS PERTAINING TO THIS ISSUE IN THE PRESENT APPEAL. HENCE, WE RESPECTFULLY FOLLOWING THE DECISION OF THE COORDINATE BENCH SET ASIDE THE FINDINGS OF THE LD. CIT (A) AND SEND THE ISSUE BACK I.T.A. NO.1192/MUM/2018 CO. NO.51/MUM/2019 8 | P A G E TO THE AO FOR DECIDING THE SAME AS PER THE DIRECTIONS GIVEN BY THE COORDINATE BENCH IN THE ASSESSEES OWN CASE FOR THE A.Y. 2012 - 13 REFERRED ABOVE. WE ACCORDINGLY ALLOW THIS GROUND OF CROSS OBJECTION FOR STATISTICAL PURPOSE S. 6 . VIDE GROUND NO. 2, T HE ASSESSEE HAS CHALLENGED THE ACTION OF THE LD. CIT(A) IN MAKING ADDITION OFRS. 18,90,160/ - ON ACCOUNT OF DISALLOWANCE U/S. 14A OF THE ACT IN BOOK PROFIT U/S. 115JB OF THE ACT . THE LD. COUNSEL SUBMITTED BEFORE US THAT THIS GROUND OF CROSS OBJECTION IS COVERED BY THE DECISION OF THE SPECIAL BENCH OF THE DELHI TRIBUNAL IN THE CASE OF ACIT VS. VIREET INVESTMENT PVT. LTD. 82 TAXMANN.COM 415(DELHI) , THEREFORE THE ORDER OF THE LD. CI T(A) IS LIABLE TO BE SET ASIDE. 7 . THE LD. DR ON THE OTHER HAND SUPPORTED THE FINDINGS OF THE LD. CIT(A). 8. WE HAVE PERUSED THE MATERIAL ON RECORD IN THE LIGHT OF THE SUBMISSIONS OF THE PARTIES. IN THE CASE OF ACIT VS. VIREET INVESTMENT PVT. LTD. ( SUP RA ) , THE SPECIAL BENCH OF THE ITAT HAS HELD THAT THE COMPUTATION UNDER CLAUSE (F) OF EXPLANATION (1) TO SECTION 115JB IS TO BE MADE WITHOUT RESORTING TO COMPUTATION AS CONTEMPLATED U/S 14A READ WITH RULE 8D. IN THE SAID CASE, THE ASSESSING OFFICER WHILE COMPUTING THE BOOK PROFIT U/S 115JB MADE ADDITION OF THE AMOUNT OF DISALLOWANCE MADE U/S 14A. THE CIT (A) HELD THAT AS PER CLAUSE (F) OF EXPLANATION (1) TO SECTION 115JB THE ONLY EXPENDITURE RELATING TO INCOME OTHER THAN INCOME ASSESSABLE U/S 10(38 ) COULD BE ADDED WHILE CALCULATING BOOK PROFIT U/S 115JB. ON CROSS APPEAL THE CONTENTION OF THE REVENUE WAS THAT THE DISALLOWANCE CALCULATED U/S 14A READ WITH RULE 8D SHOULD BE INCORPORATED IN CLAUSE (F) OF EXPLANATION (1) TO SECTION 115JB ON THE GROUND THAT THE SCOPE OF BOTH THE PROVISIONS ARE SIMILAR. 9. ON THE OTHER HAND THE CONTENTION OF THE ASSESSEE WAS THAT WHILE CONSIDERING THE AVERAGE VALUE OF INVESTMENT, ONLY THOSE INVESTMENTS I.T.A. NO.1192/MUM/2018 CO. NO.51/MUM/2019 9 | P A G E WERE TO BE TAKEN INTO CONSIDERATION WHICH HAD YIELDED EXEMPT INCOME AND NOT THOS E INVESTMENTS, WHICH DID NOT YIELD ANY EXEMPT INCOME DURING THE YEAR. 10. THE QUESTION BEFORE THE BENCH WAS THAT WHETHER THE AMOUNT OF EXPENDITURE RELATABLE TO EXEMPT INCOME AS CONTEMPLATED IN CLAUSE (F) TO EXPLANATION (1) TO SECTION 115JB SHOULD BE ARRIVE D AT BY RESORTING TO THE PROVISIONS OF SECTION 14A OR NOT. THE SPECIAL BENCH AFTER HEARING THE RIVAL CONTENTION HELD THAT THE COMPUTATION UNDER CLAUSE (F) OF EXPLANATION (1) TO SECTION 115JB IS TO BE MADE WITHOUT RESORTING TO THE COMPUTATION AS CONTEMPLATE D U/S 14A READ WITH RULE 8D OF THE INCOME TAX RULES. 1 1 . SINCE THIS ISSUE IS COVERED BY THE ORDER PASSED BY THE SPECIAL BENCH OF THE DELHI TRIBUNAL, WE SET ASIDE THE FINDINGS OF THE LD. CIT(A) AND DIRECT THE AO TO COMPUTE THE BOOK PROFIT OF THE ASSESSEE I N ACCORDANCE WITH THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF VIREET INVESTMENT PVT. LTD . (SUPRA) . 1 2 . VIDE GROUND NO. 3, T HE ASSESSEE HAS CHALLENGED THE ACTION OF THE LD. CIT(A) IN CONFIRM THE DISALLOWANCE MADE BY AO IN CONFIRMING THE DISALLOWANCE MADE BY AO OF FACILITY USAGE CHARGES OF RS. 53,28,302/ - WHILE COMPUTING U/S. 80IA AND THEREBY REDUCING THE ASSESSEE S CLAIM U/S. 80IA BY RS. 53,28,302/ - THE LD. COUNSEL SUBMITTED THAT THIS GROUND OF CROSS OBJECTION IS COVEREDBY THE ORDER OF T RIBUNAL RENDERED IN ASSESSE E S OWN CASE FOR THE AY 2013 - 14 (SUPRA) . THE COORDINATE BENCH HAS RESTORED THE IDENTICAL ISSUE TO THE FILE OF THE AO FOR PASSING ORDER AFRESH AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE OBSERVING THAT THE ASSESSEE HAS NOT FILED THE RELEVANT DOCUMENTS AND RELATED DATA WITH REGARD TO THE RENT RECEIVED FROM VODAPHONE INDIA P. LTD., ON ACCOUNT OF USAGE OF ITS CFS AREA FOR SETTING UP MOBILE TOWER. 1 3 . AS POINTED OUT BY THE LD. COUNSEL FOR THE ASSESSEE THE COORDINATE B ENCH HA S SET ASIDE THE IDENTICAL ISSUE TO THE FILE OF THE I.T.A. NO.1192/MUM/2018 CO. NO.51/MUM/2019 10 | P A G E AO TO DECIDING THE ISSUE AFRESH. THE RELEVANT PARAS OF THE ORDER PASSED BY THE COORDINATE BENCH READ AS UNDER: - 21. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD. IN THE CASE OF MEGHALAYA STEEL LTD. (SUPRA), THE ASSESSEE WAS ENGAGED IN THE BUSINESS OF MANUFACTURE OF STEEL AND FERRO SILICON. FOR THE YEAR 2004 - 05, IT CLAIMED DEDUCTION U/S 80IB ON THE PROFITS AND GAINS OF ITS INDUSTRIAL UNDERTAKING WHICH INCLUDED TRANSPORT S UBSIDY, INTEREST SUBSIDY AND POWER SUBSIDY RECEIVED FROM THE GOVERNMENT. THE AO HELD THAT THE AMOUNTS RECEIVED BY THE ASSESSEE AS SUBSIDIES DID NOT QUALIFY FOR DEDUCTION U/S 80IB(4) OF THE ACT. THE HONBLE SUPREME COURT, DISMISSING THE APPEAL FILED BY THE REVENUE, HELD THAT AS ALL THE FOUR SUBSIDIES WERE REVENUE RECEIPTS, WHICH WERE REIMBURSED TO THE ASSESSEE FOR ELEMENTS OF COST RELATING TO MANUFACTURE OR SALE OF THEIR PRODUCTS, THERE COULD CERTAINLY BE SAID TO BE A DIRECT NEXUS BETWEEN PROFITS AND GAINS O F THE INDUSTRIAL UNDERTAKING OR BUSINESS, AND REIMBURSEMENT OF SUCH SUBSIDIES. IT HELD THAT THE SUBSIDIES WERE ONLY IN ORDER TO REIMBURSE, WHOLLY OR PARTIALLY, COSTS ACTUALLY INCURRED BY THE ASSESSEE IN THE MANUFACTURING AND SELLING OF ITS PRODUCTS. IN THE INSTANT CASE, THE ASSESSEE HAS RECEIVED RS.2,00,000/ - AS RENT FROM VODAFONE INDIA PVT. LTD ON ACCOUNT OF USAGE OF ITS CFS AREA FOR SETTING UP MOBILE TOWER. IT ALSO RECEIVED RS. 6,93,000/ - AS SERVICE CHARGES FOR PROVIDING OFFICE SPACE AREA, FURNITUR E & UTILITY FACILITY TO CUSTOMERS IN CFS AREA. IN THE INSTANT CASE, WE FIND THAT THE ASSESSEE HAS NOT FILED BEFORE THE AO THE RELEVANT CONTRACTS AND CONNECTED DATA WITH REGARD TO THE ABOVE CLAIM. THEREFORE, WE RESTORE THE MATTER TO THE FILE OF THE AO FOR MAKING AN ORDER AFRESH AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE DIRECT THE ASSESSEE TO FILE THE CONNECTED DOCUMENTS/EVIDENCE BEFORE THE AO. 14. T HE COORDINATE BENCH HAS RESTORED THE IDENTICAL ISSUE TO THE FILE OF AO IN ASSESSE ES APPEAL FOR THE ASSESSMENT YEAR 2013 - 14 FOR PASSING ORDER AFRESH AFTER GIVING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE ON THE GROUND THAT THE ASSESSEE HAS NOT FILE D THE RELEVANT DOCUMENTS AND DATA WITH REGARD TO THE CLAIM OF THE ASSESSEE BEFORE THE AO. SINCE, THERE IS NO CHANGE IN THE FACTS OF THE PRESENT CASE, WE RESPECTFULLY FOLLOWING THE DECISION OF THE COORDINATE BENCH , SET ASIDE THE ORDER PASSED BY THE LD.CIT I.T.A. NO.1192/MUM/2018 CO. NO.51/MUM/2019 1 1 | P A G E (A) AND RESTORE THE ISSUE TO THE FILE OF AO TO DECIDE THE ISSUE AFRESH IN AC CORDANCE WITH THE DIRECTIONS OF THE COORDINATE BENCH GIVEN IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2012 - 13 DISCUSSED ABOVE. ACCORDINGLY, WE ALLOW THIS GROUND OF APPEAL OF THE ASSESSEE FOR STATISTICAL PURPOSES. IN THE RESULT THE APPEAL FILED BY THE REVENUE IS DISMISSED AND THE C.O FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PR ONOUNCED IN THE OPEN COURT ON 17 .05.2019. SD/ - SD/ - ( SHAMIM YAHYA ) (RAMLAL NEGI) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 17 .05.2019 NISHANT VERMA SR. PRIVATE SECRETARY COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) CONCERNED, MUMBAI 4. THE CIT - CONCERNED, MUMBAI 5. THE DR BENCH, 6. MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI