DCIT CIR 6(3)(2), MUMBAI V. KAMANWALA HOUSING CONSTRUCTION LTD, MUMBAI

ITA 1404/MUM/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8222 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-02-2017
• Appeal Filed By: Department
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 14-03-2016
• Court: TRIBUNAL
• Department Lawyers: M V RAJGURU
• Keywords: Related party transaction; Business expenditure; Rectification of order; Rule of consistency; Earning of tax free income; Commercial expediency
• Section: 143(3); 234B; 14A; 37(1); 27

Judgement Text

, , A, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER, AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA NO.921/MUM/2016 ASSESSMENT YEAR: 2011-12 KAMA NWALA HOUSING CONSTRUCTION LTD. 405, 406 NEW UDYOG MANDIR-2, MAGUL LANE, MAHIM (W) MUMBAI-400016 / VS. ADDITIONAL CIT 6(2) MUMBAI ( APPELLANT ) (RESPONDENT ) P.A. NO. AAACK2434P ITA NO.1404/MUM/2016 ASSESSMENT YEAR: 2011-12 ADDLL. CIT 6(2) MUMBAI / VS. KAMANWALA HOUSING CONSTRUCTION LTD. 405, 406 NEW UDYOG MANDIR-2, MAGUL LANE, MAHIM (W) MUMBAI-400016 ( REVENUE ) (RESPONDENT ) P.A. NO. AAACK2434P ITA NO.5488/MUM/2016 ASSESSMENT YEAR: 2012-13 KAMANWALA HOUSING CONSTRUCTION LTD. 405, 406 NEW UDYOG MANDIR-2, MAGUL LANE, MAHIM (W) MUMBAI-400016 / VS. ADDLL. CIT 6(2) MUMBAI (APPELLANT ) (RESPONDENT ) P.A. NO. AAACK2434P KAMANWALA HOUSING CONSTRUCTION LTD. 2 APPELLANT BY VIMAL PUNMIYA (AR) REVENUE BY SHRI M.V. RAJGURU ( CIT - DR) / DATE OF HEA RING: 23/12/2016 / DATE OF ORDER: 15/02/2017 / O R D E R PER ASHWANI TANEJA: THESE APPEALS INVOLVE IDENTICAL ISSUES, AND THEREFO RE THESE WERE HEARD TOGETHER AND ARE DISPOSED OF BY THIS COM MON ORDER. 2. DURING THE COURSE OF HEARING, ARGUMENTS WERE MADE B Y SHRI VIMAL PUNMIYA, AUTHORISED REPRESENTATIVES (AR) ON BEHALF OF THE ASSESSEE AND BY SHRI M.V. RAJGURU, DEPARTMENTAL REPRESENTATIVE (DR) ON BEHALF OF THE R EVENUE. FIRST WE SHALL TAKE UP ASSESSEES APPEAL IN ITA NO.921/MUM/2016 FOR ASSESSMENT YEAR 2011-12: 3. THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A) DATED 04.12.2015 PASSED AGAINST THE A SSESSMENT ORDER OF THE AO DATED 29.03.2014 U/S 143(3) FOR A.Y . 2011-12 ON THE FOLLOWING GROUNDS: 1. ON THE FACTS AND CIRCUMSTANCES OF CASE AND LAW, THE LD. CIT(A) ERRED IN CONFIRMING ADDITION OF INTEREST INC OME OF RS. 4,07,30,483/- ON THE CAPITAL CONTRIBUTION MADE IN PARTNERSHIP FIRM AS THE SAME IS NOT CRYSTALLIZED. 2. ON THE FACTS AND CIRCUMSTANCES OF CASE AND LAW, THE LD. CIT(A) ERRED IN CONFIRMING ADDITION OF RS. 9,79,200 /- CLAIMED AS THE SUNDRY DEBTOR WRITE OFF DURING THE R ELEVANT YEAR. 3. ON THE FACTS AND CIRCUMSTANCES OF CASE AND LAW, THE LD. CIT(A) ERRED IN CONFIRMING ADDITION OF RS. 1,99,905 /-AS TDS WRITTEN OFF DURING THE RELEVANT YEAR. KAMANWALA HOUSING CONSTRUCTION LTD. 3 4. ON THE FACTS AND CIRCUMSTANCES OF CASE AND LAW, THE LD. CIT(A) ERRED IN CONFIRMING ADDITION OF RS. 9,24,000 /- PAID AS RENT IN VIEW OF SECTION 40A(2)(B) OF THE I.T. AC T, 1961 AND ADDED THE SAME TO THE TOTAL INCOME OF THE ASSES SEC. 5. ON THE FACTS AND CIRCUMSTANCES OF CASE AND LAW, THE LD. CIT(A) ERRED IN CONFIRMING ADDITION OF RS. 87,5 0,000/- CLAIMED AS INVESTMENT IN JOINT VENTURE WRITTEN OFF DURING THE RELEVANT YEAR. 6. ON THE FACTS AND CIRCUMSTANCES OF CASE AND LAW, THE LD. CIT(A) ERRED IN CONFIRMING DISALLOWANCE OF LONG TERM CAPITAL LOSS AMOUNT RS. 24,01,139/- ARISI NG FROM THE SALE OF SHARES. 7. THE LD. CIT(A) ERRED IN CONFIRMING THE CHARGING INTEREST U/S 234B AND 234C OF THE IT ACT. 8. THE LD. CIT(A) ERRED IN CONFIRMING INVOCATION OF PENALTY U/S 27 1(1)(C) OF THE INCOME TAX ACT. 10. THE ASSESSEE CRAVES LEAVE TO ADD FURTHER GROUND S OR TO AMEND OR ALTER THE EXISTING GROUNDS OF APPEAL. 4. DURING THE COURSE OF HEARING THE ASSESSEE ALSO PLA CED ON RECORD FOLLOWING ADDITIONAL GROUNDS: 10. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW, THE LD. CIT(A) ERRED IN NOT REDUCING SUM OF RS.2,91,30,922/- TOWARDS INTEREST RECEIVABLE FROM KAMANWALA LAKSHACHANDI TODAYS DEVELOPERS (KLTD) FROM A.Y. 2012-13. 11. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW, THE LD. CIT(A) ERRED IN NOT REDUCING SUM OF RS.1,15,99,516/- TOWARDS INTEREST RECEIVABLE FROM KAMANWALA LAKSHACHANDI TODAYS CONSTRUCTION (KLTC) FROM A.Y. 2013-14. 5. GROUND NO.1 & ADDITIONAL GROUNDS: IN THESE GROUNDS, THE ASSESSEE IS AGGRIEVED WITH THE ACTION OF THE LOWER AUTHORITIES IN MAKING ADDITION ON NOTIONAL BASIS ON ACCOUNT OF INT EREST ACCRUED ON THE AMOUNT OF CAPITAL CONTRIBUTION MADE BY THE ASSESSEE IN THE PARTNERSHIP FIRMS NAMELY KAMANWALA LAKSHACHANDI TODAYS DEVELOPERS (KLTD) AND KAMANWALA LAKSHACHANDI TODAYS CONSTRUCTION (KLTC). KAMANWALA HOUSING CONSTRUCTION LTD. 4 5.1. THE BRIEF BACKGROUND IS THAT THE AO OBSERVED DURIN G THE ASSESSMENT PROCEEDINGS THAT THE ASSESSEE HAD MADE INVESTMENT BY WAY OF CAPITAL CONTRIBUTION IN THE AF ORESAID PARTNERSHIP FIRMS FROM WHICH NO INTEREST ON CAPITAL HAS BEEN OFFERED FOR TAXATION EVEN THOUGH THE DEED OF PARTNE RSHIP FIRM PROVIDED FOR THE SAME. DURING THE COURSE OF ASSESSM ENT PROCEEDINGS, THE ASSESSEE MADE SUBMISSIONS BEFORE T HE AO TO ARGUE THAT NO INTEREST HAD ACCRUED DURING THE YEAR UNDER CONSIDERATION, THEREFORE, SAME WAS NOT CREDITED IN THE BOOKS OF ACCOUNTS. THE AO WAS NOT SATISFIED WITH THE ARGUMEN TS OF THE ASSESSEE, AND THEREFORE ADDITION WAS MADE BY THE AO FOR AN AGGREGATE AMOUNT OF RS.4,07,30,483/- (I.E. RS.2,91, 40,922/- +1,15,99,516). 5.2 . DURING THE COURSE OF APPEAL BEFORE LD. CIT(A), TH E ASSESSEE SUBMITTED COPY OF PARTNERSHIP DEED ENTERED WITH THESE FIRMS AND ALSO FILED TERMS OF AGREEMENT OF LO AN SANCTION LETTER OF CREDIT FACILITIES DATED 16.07.2008. THE A SSESSEE ALSO FILED BALANCE SHEET AND PROFIT AND LOSS ACCOUNT FOR SUBSEQUENT YEARS TO SHOW THAT INTEREST INCOME HAS BEEN OFFERED BY THE ASSESSEE IN A.Y. 2012-13. LD. CIT(A) EXAMINED ALL T HE SUBMISSIONS AND EVIDENCES AS WERE PLACED BEFORE HIM , BUT HE WAS NOT SATISFIED WITH THE ARGUMENT OF THE ASSESSEE THAT THE AMOUNT OF INTEREST DID NOT ACCRUE. THEREFORE HE UPH ELD THE ACTION OF THE AO. HOWEVER, HE DID NOT ADJUDICATE TH E ALTERNATIVE SUBMISSIONS OF THE ASSESSEE WHEREIN IT WAS SUBMITTED BY THE ASSESSEE THAT THE IMPUGNED ADDITIO N MADE BY THE AO HAS LED TO DOUBLE ADDITION OF THE SAME IN COME IN TWO DIFFERENT YEARS. KAMANWALA HOUSING CONSTRUCTION LTD. 5 5.3. BEING, AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEF ORE THE TRIBUNAL. 5.4. DURING THE COURSE OF HEARING, DETAILED ARGUMENTS W ERE MADE TO CONTEST THE ACTION OF THE LOWER AUTHORITIES IN HOLDING THAT INTEREST INCOME HAD ACCRUED DURING THE YEAR UN DER CONSIDERATION. IT WAS ALTERNATIVELY SUBMITTED THAT THE ASSESSEE WOULD BE SATISFIED IF ITS ALTERNATIVE PRAYER IS ACC EPTED AND DOUBLE ADDITION IS REMOVED. 5.5. PER CONTRA, LD. DR SUBMITTED THAT THE FACTS OF THE CASE CLEARLY INDICATE THAT THE INTEREST INCOME HAD ACCRU ED DURING THE YEAR BEFORE US, AND THEREFORE ASSESSEE SHOULD H AVE OFFERED THE SAME IN ITS RETURN FOR THE IMPUGNED YEAR. HOWEV ER, LD. DR FAIRLY AGREED THAT DOUBLE ADDITION OF SAME INCOME S HOULD BE REMOVED. 5.6. WE HAVE CAREFULLY GONE THROUGH ENTIRE FACTS AND CIRCUMSTANCES OF THE CASE. THE IMPUGNED INTEREST IN COME HAS BEEN ADDED BY THE AO IN THE IMPUGNED YEAR ON THE GR OUND THAT INTEREST HAD ACCRUED WITH THE PASSAGE OF TIME. THEREFORE, INTEREST INCOME PERTAINING TO THE YEAR UNDER CONSID ERATION SHOULD HAVE BEEN OFFERED TO TAX IN THIS YEAR ITSELF . BUT, ON THE OTHER HAND, THE ASSESSEE HAS OFFERED THE SAME TO TA X IN ASSESSMENT YEARS 2012-13 & 2013-14. OUR ATTENTION W AS DRAWN ON THE COPY OF RETURNS AND OTHER EVIDENCES PE RTAINING TO THESE TWO YEAR SHOWING THAT IMPUGNED INTEREST IN COME HAS ALREADY BEEN OFFERED TO TAX IN THESE TWO YEARS. THE SAME HAS ALSO BEEN ACCEPTED BY THE AO AS PART OF INCOME IN A .Y. 2012- 13 & 2013-14. THE DETAILED CHART WAS FURNISHED BEFO RE US IN SUPPORT OF THIS ARGUMENT. LD. DR DID NOT CONTROVERT THE KAMANWALA HOUSING CONSTRUCTION LTD. 6 FACTUAL ASSERTION MADE BY THE ASSESSEE THAT THE SAM E INTEREST INCOME HAS ALREADY BEEN OFFERED TO TAX IN A.YS. 201 2-13 & 2013-14. 5.7. THUS, ADMITTEDLY AND UNDISPUTEDLY, IT IS A CASE OF DOUBLE ASSESSMENT OF SAME INCOME. SUCH A SITUATION IS HIGH LY UNJUSTIFIED AND NOT PERMITTED UNDER THE PROVISIONS OF INCOME TAX LAW. THEREFORE, KEEPING IN VIEW ALTERNATIVE PRA YER OF THE ASSESSEE, WE DIRECT THAT INTEREST INCOME OFFERED IN THE SUBSEQUENT YEARS SHOULD BE EXCLUDED FROM TOTAL INCO ME TO REMOVE THE DOUBLE ADDITION. THE AO IS DIRECTED TO P ASS REQUISITE RECTIFICATION ORDER IN ASSESSMENT YEARS 2 012-13 & 2013-14 SO AS TO GIVE EFFECT TO OUR ORDER. THE ASSE SSEE IS ALSO DIRECTED TO FURNISH REQUISITE DETAILS AND DOCUMENTA RY EVIDENCES TO THE AO TO SHOW THAT SAME INTEREST INCO ME HAS ALREADY BEEN OFFERED IN A.Y. 2012-13 AND 2013-14. T HUS, THESE GROUNDS MAY BE TREATED AS ALLOWED IN ACCORDANCE WIT H THE AFORESAID DIRECTIONS. UNDER THESE CIRCUMSTANCES, WE DO NOT FIND IT NECESSARY TO ADJUDICATE THE OTHER ISSUES RA ISED BY THE ASSESSEE WITH REGARD TO THESE GROUNDS. 6. GROUND NO.2: THIS GROUND DEALS WITH THE ACTION OF LOWER AUTHORITIES IN MAKING DISALLOWANCE OF RS.9,79,200/- ON ACCOUNT OF SUNDRY DEBTORS WRITTEN OFF BY THE ASSESS EE DURING THE YEAR. 6.1. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT WA S NOTED BY THE AO THAT ASSESSEE HAS WRITTEN OFF A SUM OF RS.9,79,200/- ON ACCOUNT OF LEASE RENT RECEIVABLE. THE AO ASKED THE ASSESSEE TO ESTABLISH AND JUSTIFY THE GEN UINENESS FOR KAMANWALA HOUSING CONSTRUCTION LTD. 7 ALLOWABILITY OF THE SAID CLAIM. IN RESPONSE THE ASS ESSEE SUBMITTED AS UNDER: 'AN AMOUNT OF RS. 9,79,200/- IS OUTSTANDING FOR MOR E THAN 20 YEARS WHICH IS DUE FROM ATTAR INDUSTRIAL GASES P VT. LTD. WE ARE SUPPLYING THEM GAS CYLINDERS ON LEASE RENT B ASIS. THE SAID PARTY HAS NOW ADVISED US THAT THE GAS CYLI NDERS DELIVERED TO THEM WERE DEFECTIVE AND THEY CANNOT AC CEPT THE CYLINDERS. THEREFORE NO RENT IS DUE TO US. HOWE VER, FOR RECOVERING THE SAID AMOUNT FROM THEM WE SHOULD HAVE TAKEN UP THE MATTER LEGALLY AGAINST THE PARTY. BUT WE DECIDED NOT TO TAKE LEGAL ACTION AGAINST THEM FOR R ECOVERING THE RENT DUE AS IT WOULD COST US ABOUT RS. 3.00 TO RS. 5.00 LACS. SO, WE DECIDED TO WRITE OFF THE SAID AMOUNT. ' 6.2. BUT, AO WAS NOT SATISFIED WITH THE CLAIM ON THE GR OUND THAT AS PER LAW, UNLESS AND UNTIL IT WAS ESTABLISHE D BY THE ASSESSEE THAT THE IMPUGNED WRITE-OFF REPRESENTED ITS REVENUE RECEIPT AND THE SAME WAS OFFERED TO TAX IN EARLIER YEARS, IT CANNOT BE ALLOWED AS BAD DEBT IN ITS HANDS, AND SIN CE THE ASSESSEE WAS NOT ABLE TO PLACE ON RECORD REQUISITE EVIDENCES TO SUBSTANTIATE THE NATURE OF IMPUGNED TRANSACTIONS OR ELIGIBILITY OF THE SAID CLAIM, IT WAS HELD AS NOT ALLOWABLE. 6.3. DURING THE COURSE OF HEARING BEFORE THE LD. CIT(A) , DETAILED ARGUMENTS WERE MADE. BUT LD. CIT(A) CONFIR MED THE ACTION OF AO BY OBSERVING AS UNDER: GROUND OF APPEAL NO 2 RELATES TO THE DISALLOWANCE OF RS 9,79,200/- CLAIMED AS WRITE OFF OF SUNDRY DEBTORS, THE APPELLANT HAS NOT SUBMITTED, BOTH IN THE ASSESSMENT AS WELL AS APPELLATE STAGE ANY EVIDENCE OF CLAIM OF INCOME OFFERED IN ANY EARLIER YEARS. HENCE I FIND NO INFIRMITY IN THE DISALLOWANCE MADE BY THE ASSESSING OFFICER. HENCE T HE GROUND OF APPEAL NO 2 IS DISMISSED. KAMANWALA HOUSING CONSTRUCTION LTD. 8 6.4. DURING THE COURSE OF HEARING IT WAS SUBMITTED THAT THE ISSUE HAS NOT BEEN PROPERLY ADJUDICATED BY THE LOWE R AUTHORITIES. 6.5. PER CONTRA LD. DR ALSO SUBMITTED THAT THIS ISSUE C AN BE SENT BACK FOR PROPER VERIFICATION OF FACTS. 6.6. WE HAVE GONE THROUGH THE ORDERS PASSED BY THE LOWE R AUTHORITIES. IT IS NOTED THAT LD. CIT(A) HAS PASSED NON- SPEAKING ORDER WITHOUT GIVING PROPER REASONING. WE FIND IT APPROPRIATE TO SEND THIS ISSUE BACK TO THE FILE OF THE AO. THE ASSESSEE SHALL SUBMIT ON RECORD REQUISITE DETAILS A ND EVIDENCES TO JUSTIFY ITS CLAIM. THE ASSESSEE IS REQ UIRED TO SHOW THAT THE IMPUGNED AMOUNT HAS ALREADY BEEN INCLUDED IN ITS INCOME IN EARLIER YEARS SO AS TO CLAIM THE BENEFIT OF PAID DEBTS U/S 36(1)(VII). THE AO SHALL DECIDE THIS ISSUE AGAI N AFTER CONSIDERING ALL THE FACTS AND CIRCUMSTANCES, AS MAY BE BROUGHT ON RECORD BY THE ASSESSEE. THE ASSESSEE IS ALSO PERMITTED TO MAKE ANY ALTERNATIVE CLAIM AS MAY BE P ERMITTED UNDER THE LAW. WITH THESE DIRECTIONS, THIS GROUND I S RESTORED TO THE FILE OF AO AND MAY BE TREATED AS ALLOWED FOR ST ATISTICAL PURPOSES. 7. GROUND NO.3: IN THIS GROUND, THE ASSESSEE IS AGGRIEVED WITH THE ACTION OF LOWER AUTHORITIES ON ACCOUNT OF DISAL LOWANCE OF RS.1,99,905/- BEING THE AMOUNT OF TDS WRITTEN OFF D URING THE YEAR. 7.1. THE BRIEF BACKGROUND IS THAT THE AO HAD MADE DISALLOWANCE OF THIS AMOUNT FOR THE SAME REASONS AS IN GROUND NO.2 ABOVE AND THE DISALLOWANCE WAS CONFIRME D BY THE LD. CIT(A) IN THE SIMILAR MANNER. KAMANWALA HOUSING CONSTRUCTION LTD. 9 7.2. THE BRIEF BACKGROUND AS BROUGHT BEFORE US BY LD. COUNSEL IS THAT AS ASSESSEE HAD PAID GROSS AMOUNT T O VARIOUS PARTIES AND ALSO PAID THE TDS, THEREFORE AN AMOUNT AGGREGATING TO RS.1,99,905/- WAS SHOWN AS RECOVERAB LE FROM THESE PARTIES. SINCE THE ASSESSEE COULD NOT RECOVER SAID AMOUNT FROM THESE PARTIES, THEREFORE SAME WAS WRITT EN OFF AS BAD DEBT. IT IS NOTED THAT IN THIS CASE ALSO THE DI SALLOWANCE HAS BEEN CONFIRMED BY THE LOWER AUTHORITIES WITHOUT EXAMINING FACTS AND FIGURES. IT WAS SHOWN THAT THES E AMOUNTS WERE RECOVERABLE FROM THE PARTIES ON ACCOUNT OF TDS DEPOSITED BY THE ASSESSEE ON BEHALF OF THESE PARTIES, BUT THE PAYMENT IN FULL WAS INADVERTENTLY MADE TO THESE PARTIES. HOWEV ER EXTRA AMOUNTS PAID COULD NOT BE RECOVERED FROM THE SAID P ARTIES. UNDER THESE CIRCUMSTANCES, THESE UNRECOVERED AMOUNT S ARE OF NATURE OF LOSS INCURRED DURING THE NORMAL COURSE OF BUSINESS. COMPLETE DETAILS WERE SHOWN TO US BY LD. COUNSEL IN THIS REGARD. NOTHING WRONG HAS BEEN POINTED OUT BY THE L D. DR IN THIS REGARD. UNDER THESE CIRCUMSTANCES, WE FIND THA T DISALLOWANCE MADE BY THE AO WAS NOT JUSTIFIED UNDER THE LAW. THEREFORE, IMPUGNED DISALLOWANCE IS DIRECTED TO BE DELETED. THUS, GROUND NO.3 IS ALLOWED. 8. GROUND NO.4: THIS GROUND DEALS WITH THE ACTION OF LOWER AUTHORITIES IN MAKING DISALLOWANCE ON ACCOUNT OF RE NT PAID U/S 40(A)(2)(B) AMOUNTING TO RS.9,24,000/-. 8.1. THE BRIEF BACKGROUND IS THAT IT WAS NOTED BY THE A O THAT ASSESSEE HAD PAID RENT TO MRS. SHOBHA JAIN (NON EXE CUTIVE DIRECTOR OF THE COMPANY) AND SMT. SUDHA GUPTA (WIFE OF THE M.L. GUPTA, DIRECTOR OF THE COMPANY) FOR TAKING 50% SHARE OF KAMANWALA HOUSING CONSTRUCTION LTD. 10 THE FLAT FOR USING THE SAME FOR THE PURPOSE OF BUSI NESS OF THE ASSESSEE COMPANY. DETAILED REPLIES WERE FILED BY TH E ASSESSEE BEFORE THE AO. BUT, AO WAS OF THE OPINION THAT THES E TRANSACTIONS ARE CAMOUFLAGE AND NOT INCURRED FOR TH E PURPOSE OF THE BUSINESS OF THE ASSESSEE, AND THIS WAS MEREL Y AN ARRANGEMENT TO SIPHON OFF THE FUNDS IN THE NAME OF RENT, THEREFORE AMOUNTS PAID TO THESE PERSONS WERE DISALL OWED. 8.2. IN THE APPEAL BEFORE THE LD. CIT(A), DETAILED SUBM ISSIONS WERE MADE TO JUSTIFY THE PAYMENT OF RENT TO THESE P ARTIES. IT WAS ARGUED THAT DISALLOWANCE SHOULD BE DELETED SINC E THE EXPENDITURE WAS INCURRED KEEPING IN VIEW COMMERCIAL EXPEDIENCY. BUT LD. CIT(A) WAS NOT SATISFIED WITH T HE ARGUMENT OF THE ASSESSEE AND CONFIRMED THE DISALLOWANCE WITH FOLLOWING OBSERVATIONS: THE APPELLANT HAS NOT BROUGHT ON RECORD ANY EVIDENCE TO SHOW THAT THE IMPUGNED PREMISES IS UTILISED FOR THE BUSINESS PREMISES. AND IN THE ABSENCE OF ANY EVIDENCE IT IS HELD THAT THE JUDICIA L RULING GIVEN BY THE APPELLANT HAS NO RELEVANCE TO T HE CASE OF THE APPELLANT. THE APPELLANT HAS ALSO ARGUED THAT THE PRINCIPLE OF CONSISTENCY MUST BE FOLLOWED WHEN THERE IS ABSOLUTE LY NO DIFFERENCE IN THE FACTS OF THE CASE. PERUSAL OF THE 26TH AND 27TH ANNUAL REPORT WITH RESPECT TO THE RELATED PARTY TRANSACTION IS REPRODUCED AS UNDER FO R READY REFERENCE:- 27 TH ANNUAL REPORT TRANSA CTION ASSOCIATES JOINT VENTURE KEY MANAGEMENT PERSONAL OTHER DIRECTOR RELATIVE OF KEY MANAGERICAL PERSONAL TOTAL RENT PAID 7,68,000 (7,68,000) - 5,00,000(-) - (4,52,000) 4,24,000 (3,56,000) 16,92,000 (15,76,000) 26 TH ANNUAL REPORT TRANSACTION ASSOCIATES KE MANAGEMENT PERSONNEL OTHER DIRECTOR RELATIVES OF KEY MANAGERICAL PERSONNEL TOTAL RENT PAID 6,68,000 -- 4,52,00 3,56,000 15,76,000 KAMANWALA HOUSING CONSTRUCTION LTD. 11 THE SAME IS CAREFULLY PERUSED AND ON PERUSAL OF THE ABOVE, IT IS CLEARLY SEEN THAT FACTS OF THE EAR LIER YEAR IS NOT SAME AS IN THIS YEAR. NO RENT WAS PAID TO KEY MANAGEMENT PERSONNEL IN A.Y. 2010-11 AND IT WAS PAID IN A.Y. 2011-12. THE COPY OF RENT AGREEMENT OF SMT SUDHA GUPTA REVEALS THAT LEAVE AND LICENSE PERIOD WAS FROM 1.11.2010 TILL 31.10.2012. I.E. DURING THE RELEVANT YEAR UNDER CONSIDERATION. IT IS NOT CORRECT TO SAY THAT ONCE T HE RENT PAID IS ALLOWED IN ANY ONE ASSESSMENT YEAR AND IF THE RENT IS INCREASED OR NEW RELATED PARTY IS INTRODUCED, THEN THE AO HAS NO JURISDICTION TO VERIFY THE REASONABLENESS OR CORRECTNESS OF THE EXPENSES. IT IS OBSERVED THAT, T HE APPELLANT IS INFERRING THAT THE ASSESSING OFFICER H AS TO KEEP HER MIND AND EYES CLOSED JUST BECAUSE THE RENT EXPENSES WAS ALLOWED IN EARLIER YEARS AND SO SHE HAS TO STATUTORY ALLOW IT ALSO FOR THIS YEAR. I DO NOT FIND ANY MERIT IN THE ARGUMENT OF THE APPELLANT, AS THE APPELLANT HAS NOT BROUGHT ANY RECORDS TO SUBSTANTIATE THAT THE PREMISES TAKEN ON RENT WAS ACTUALLY UTILISED FOR THE PURPOSE OF BUSINESS. THE GENERAL PRINCIPLE UNDERLYING SECTION 37(1) IS THAT AN EXPENDITURE WHICH IS FOUND TO HAVE BEEN WHOLLY AND EXCLUSIVELY MADE OR LAID OUT BY A BUSINESSMAN FOR PURPOSES OF HIS BUSINESS IS TO BE ALLOWED. THERE CAN HARDLY BE ANY DISPUTE ON THE PROPOSITION THAT THE BUSINESSMAN IS THE BEST JUDGE TO DETERMINE THE BUSINESS EXPEDIENCY AND, THEREFORE, WHEN HE CLAIMS TO HAVE INCURRED CERTAIN EXPENDITURE FOR BUSINESS EXPEDIENCY, HIS VERSION SHOULD ORDINARILY BE ACCEPTED. THIS PRINCIPLE, HOWEVER, DO ES NOT DEBAR THE ASSESSING AUTHORITIES TO ENQUIRE AND INVESTIGATE AS TO WHETHER SUCH EXPENDITURE WAS ACTUALLY INCURRED BY THE BUSINESSMAN AND IF INCURRED WHETHER THE SAME WAS INCURRED WHOLLY AND EXCLUSIVELY FOR BUSINESS CONSIDERATION. THE DOCTRINE THAT THE BUSINESSMAN IS THE BEST JUDGE OF BUSINESS EXPENDITURE DOES NOT AFFECT THE RIGHT, NAY , DUTY OF THE ASSESSING AUTHORITIES TO KNOW WHETHER IT WAS INCURRED FOR BUSINESS PURPOSES AND NOT FOR KAMANWALA HOUSING CONSTRUCTION LTD. 12 OTHER EXTRANEOUS CONSIDERATIONS. HENCE I DO NOT FIND ANY REASON TO DELETE THE SAID ADDITION. IN VIEW OF THE ABOVE DISCUSSION, I AM OF THE OPINION THAT THE ASSESSING OFFICE HAS CORRECTLY DISALLOWED THE RENT EXPENSES. THE GROUND OF APPEAL NO 4 IS DISMISS ED. 8.3. DURING THE COURSE OF HEARING BEFORE US, IT WAS SUB MITTED THAT THESE PREMISES WERE HIRED FOR THE PURPOSE OF U SING THEM AS OFFICE AND FOR HOLDING BUSINESS MEETINGS BY THE EXECUTIVES OF THE ASSESSEE COMPANY WITH THE PRESTIGIOUS CUSTOM ERS AND OTHER NUMEROUS BUSINESS ASSOCIATES. IT HAS ALSO BEE N SUBMITTED THAT IN EARLIER YEAR THIS RENT WAS ALLOWE D BY THE AO. IT WAS ALSO SUBMITTED THAT RENTAL INCOME HAS BEEN D ULY ASSESSED IN THE HANDS OF THESE PERSONS BY THE INCOM E TAX DEPARTMENT. THUS ACTION OF THE AO IS CONTRADICTORY IN AS MUCH AS, ON THE ONE HAND INCOME IS BEING ASSESSED IN THE RETURN OF PAYEES, BUT ON THE OTHER HAND, EXPENSE IS BEING DIS ALLOWED IN THE RETURN OF THE PAYER (I.E. ASSESSEE). FURTHER, W ITHOUT PREJUDICE, ENTIRE AMOUNT COULD NOT HAVE BEEN DISALL OWED U/S 40A(2)(B). 8.4. PER CONTRA, LD. DR SUBMITTED THAT NOTHING HAS BEEN BROUGHT ON RECORD TO SHOW THAT HOW AND IN WHAT MANN ER THESE ASSETS WERE USED FOR THE PURPOSE OF BUSINESS OF THE ASSESSEE. ONLY BALD STATEMENT HAS BEEN MADE THAT TOO UNSUPPOR TED WITH ANY EVIDENCES. 8.5. WE HAVE GONE THROUGH THE FACTS AND CIRCUMSTANCES O F THE CASE AS WELL AS ORDERS PASSED BY THE LOWER AUTHORIT IES AND ALSO THE SUBMISSIONS MADE BEFORE US. UNDOUBTEDLY, THE AS SESSEE IS BEST JUDGE TO MAKE ANY EXPENDITURE KEEPING IN VIEW COMMERCIAL EXPEDIENCY AND BEST INTEREST OF ITS BUSI NESS. BUT WHEN A QUESTION IS RAISED BY THE AO ABOUT THE BUSIN ESS KAMANWALA HOUSING CONSTRUCTION LTD. 13 NECESSITY AND GENUINENESS OF EXPENDITURE, ESPECIALL Y WHEN THE PAYMENT HAS BEEN MADE TO RELATED PARTIES, THERE IS BOUNDEN DUTY ON THE SHOULDERS OF THE ASSESSEE TO SHOW THAT PAYMENT HAS BEEN GENUINELY MADE AND SAME HAS BEEN UTILIZED FOR THE PURPOSE OF THE BUSINESS OF THE ASSESSEE. 8.6. THE FACTS OF THIS CASE AS WERE BROUGHT BEFORE US S HOW THAT IT WAS CLAIMED BY THE ASSESSEE THAT THE PAYMENT WAS MADE TOWARDS RENTAL FOR USING 50% SHARE OF THE FLATS OWN ED BY THESE TWO PERSONS. IT WAS EXPLAINED THAT THESE PREM ISES WERE UTILIZED AS OFFICE(S) OF THE ASSESSEE AND FOR ORGAN IZING STRATEGIC BUSINESS MEETINGS AND CARRYING OUT OTHER DAY TO DAY FUNCTIONING ALSO FROM THESE PREMISES. THE ASSESSEE PLACED BEFORE THE LOWER AUTHORITIES, DETAILS AND EVIDENCES IN THE FORM OF CONFIRMATION, AGREEMENTS, COPIES OF INCOME TAX R ETURNS OF THESE PAYEES AND OTHER DETAILS TO SHOW BUSINESS USE R OF THESE PREMISES AS WELL AS CONFIRMATION OF TRANSACTION AND GENUINENESS OF PAYMENTS. THEREAFTER NOTHING WAS BRO UGHT ON RECORD BY THE AO TO NEGATE THESE FACTS AND DETAILS/ EVIDENCES. 8.7. FURTHER, THIS FACT CANNOT BE IGNORED THAT THE PAYM ENTS MADE TO THESE PERSONS HAVE ALWAYS BEEN ALLOWED IN P AST BY THE AO. THE RENTAL INCOME HAS BEEN ASSESSED BY THE INCOME TAX DEPARTMENT IN THE HANDS OF THESE PAYEES. UNDER THESE CIRCUMSTANCES, THE AO WAS EXPECTED TO MAINTAIN CONS ISTENCY IN HIS APPROACH AND SHOULD NOT HAVE DISALLOWED THE CLAIM MERELY ON THE BASIS OF HIS DOUBTS. 8.8. FURTHER, THE AO INVOKED PROVISIONS OF SECTION 40A( 2)(B), WHICH DO NOT PERMIT FULL DISALLOWANCE OF EXPENDITUR E. ONLY THAT PART OF EXPENDITURE CAN BE DISALLOWED WHICH IS IN EXCESS KAMANWALA HOUSING CONSTRUCTION LTD. 14 OF MARKET RATES. BEFORE MAKING ANY SUCH DISALLOWANC E, THE ONUS IS UPON THE AO UNDER THE LAW TO SHOW THAT AMOU NT PAID TO A RELATED PARTY IS MORE THAN MARKET RATES. NO SU CH EXERCISE HAS BEEN DONE BY THE AO IN THE CASE BEFORE US. 8.9. THUS, TAKING INTO ACCOUNT TOTALITY OF THE FACTS AN D CIRCUMSTANCES OF THE CASE, WE FIND THAT THE ASSESSE E HAS BEEN ABLE TO DISCHARGE ITS ONUS AS WAS ENVISAGED UNDER T HE LAW, WHEREAS THE AO HAD WRONGFULLY INVOKED PROVISIONS OF SECTION 40A(2)(B) AND ALSO ERRED IN DISALLOWING THE EXPENDI TURE IN FULL. THUS, SINCE DISALLOWANCE MADE BY THE AO IS CONTRARY TO LAW AND FACTS, SAME IS THEREFORE DELETED. GROUND NO.4 I S ALLOWED. 9. GROUND NO.5: IN THIS GROUND THE ASSESSEE HAD CHALLENGED THE ACTION OF LOWER AUTHORITIES, IN DISALLOWING THE CLAIM OF RS.87,50,000/- MADE BY THE ASSESSEE ON ACCOUNT OF W RITE OFF OF THE INVESTMENT MADE IN JOINT VENTURE. 9.1. THE BRIEF BACKGROUND IS THAT IT WAS NOTED BY THE A O THAT THE ASSESSEE HAD DEBITED IN ITS PROFIT AND LOSS ACC OUNT AFORESAID SUM UNDER THE HEAD INVESTMENT IN JOINT VE NTURE WRITTEN OFF, AND THEREFORE ASSESSEE WAS ASKED TO EX PLAIN THE NATURE OF THE SAID CLAIM AND JUSTIFY HOW IT WAS ALL OWABLE. IT WAS EXPLAINED BY THE ASSESSEE THAT IT HAD MADE AN I NVESTMENT IN A JOINT VENTURE PROJECT WITH M/S KAMANI TUBES LT D. FOR DEVELOPMENT OF LEASEHOLD PROPERTY BELONGING TO THE SAID COMPANY AS PER AGREEMENT DATED 22 ND APRIL 1995. AS PER THE AGREEMENT THE ASSESSEE HAD RESERVED ALL THE RIGHTS FOR NET REALIZATION OF SALE OF THE PROPERTY. BUT, THE ASSES SEE WAS NOT COMFORTABLE ABOUT THE ABILITY OF THE SAID COMPANY T O WORK AS PER THE AGREEMENT. THEREFORE FURTHER PAYMENTS WERE STOPPED. KAMANWALA HOUSING CONSTRUCTION LTD. 15 THEREAFTER, THE SAID COMPANY FILED A CASE AGAINST T HE ASSESSEE COMPANY BEFORE BIFR. UNDER THESE CIRCUMSTANCES, SIN CE THE ASSESSEE COMPANY CONSIDERED THE DEBT (I.E. AFORESAI D AMOUNT GIVEN TO THE AFORESAID COMPANY) AS DOUBTFUL, IT WAS WRITTEN OFF. IT WAS ALSO SUBMITTED THAT SUBSEQUENTLY PART OF THE SUM WAS RECOVERED IN SUBSEQUENT YEARS AND HAS BEEN OFFERED TO TAX. HOWEVER, AO WAS NOT SATISFIED WITH THE CLAIM OF THE ASSESSEE. AFTER ANALYZING THE ENTIRE FACTS, IT WAS HELD BY HI M THAT THE IMPUGNED CLAIM WAS CAPITAL IN NATURE AND NOT REVENU E EXPENDITURE. THUS THE CLAIM WAS DISALLOWED. 9.2. BEFORE THE LD. CIT(A) DETAILED SUBMISSIONS WERE MA DE BUT HE WAS NOT SATISFIED WITH THE SAME. THE DISALLOWANC E MADE BY THE AO WAS CONFIRMED WITHOUT GIVING REASONING IN DE TAIL ON FACTS. 9.3. BEFORE US, LD. COUNSEL MADE DETAILED ARGUMENTS AND DREW OUR ATTENTION ON THE FOLLOWING EVIDENCES TO JU STIFY THAT THE CLAIM HAD BECOME BAD IN THE YEAR UNDER CONSIDER ATION: JOINT VENTURE WITH KAMANI TUBES LIMITED ALONG WITH BIFR ORDERS LIST OF DOCUMENTS: SR.NO. PARTICULARS OF DOCUMENTS 1. AGREEMENT FOR DEVELOPMENT OF THE LEASEHOLD PROPE RTY BETWEEN KAMANI TUBES LIMITED AND KAMANWALA HOUSING CONSTRUCTION LIMITED DATED 22.04.1995 FOR DEVELOPIN G, REPAIRING, RENOVATION, RE-CONSTRUCTING AND/OR IMPRO VING OF THE LEASEHOLD PROPERTY / BUILDING VIZ. KAMANI CHAMBERS (OLD AND NEW) 2. ORDER DATED 13.11 1997 BY SOLE ARBITRATOR MR. DA KSHESH B. DHRUV 3. MINUTES DATED 02.05.2000 BY SOLE ARBITRATOR MR. DAKSHESH B. DHRUV 4 ORDER OF BIER MEETING DATED 21.03.2006 KAMANWALA HOUSING CONSTRUCTION LTD. 16 5 LETTER DATED 30.04.2007 TO M/S KAMANI TUBES LIMIT ED 6 REPLY DATED 06.06.2007 FROM LITTLE & CO., ADVOCAT ES & SOLICITORS 7 REJOINDER LETTER DATED 11. 07.2007 8 PUBLIC NOTICE DATED 09.05.2007 9 ORDER OF BIFR MEETING DATED 19.01.2011 10 COPY OF ARBITRATION PETITION DATED 28.03.2011 IN THE HIGH COURT OF JUDICATURE AT MUMBAI 11 ORDER DATED 29.07.2011 OF ARBITRATION PETITION R EJECTED 12. MINUTE OF BIFR MEETING DATED 21.04.2011 13. MINUTES OF BIFR MEETING DATED 02.06.2011 CONSIS TING THAT THE M/S KAMANI TUBES LTD BINDING TO PAY THE DUES I. E 10% OF OUTSTANDING PRINCIPAL AMOUNT AS PER THE SANCTIONED SCHEME. 14. COPY OF MOU OF M/S KAMANI TUBES LIMITED FOR II AND FINAL SETTLEMENT OF CLAIMS ALONG WITH PAYMENT RECEIPT 9.4. FURTHER, IT WAS ALSO SUBMITTED THAT THE INVESTMENT WAS MADE IN THE NORMAL COURSE OF BUSINESS THEREFORE RES ULTANT LOSS WILL BE REVENUE LOSS. IT WAS ALSO SUBMITTED THAT SU BSEQUENTLY, PART RECOVERY WAS MADE WHICH WAS OFFERED TO TAX. BU T, NO PARTICULARS DETAILS WERE FURNISHED IN THIS REGARD. 9.5. ON THE OTHER HAND, LD. DR SUBMITTED THAT THE EVIDE NCES RELIED UPON BY THE LD. COUNSEL HAVE NOT BEEN EXAMIN ED BY THE LOWER AUTHORITIES. THE FACTS REGARDING SUBSEQUENT R ECOVERY AND ITS INCLUSION IN THE INCOME OF OFFER TO TAX ARE ALS O NOT CLEAR. THEREFORE, THIS ISSUE NEEDS PROPER EXAMINATION BY T HE AO. 9.6. WE HAVE GONE THROUGH THE FACTS OF THE CASE. IT IS NOTED THAT EVIDENCES BROUGHT BEFORE US HAVE NOT BEEN PROP ERLY EXAMINED BY THE LOWER AUTHORITIES. THE EVIDENCES DO INDICATE THAT THE DEBT HAD BECOME BUT IN ABSENCE OF THEIR EX AMINATION IN THE LIGHT OF FACTS OF THIS CASE, NO PROPER CONCL USION CAN BE DRAWN BY THIS STAGE. FURTHER, REQUISITE FACTS REGAR DING KAMANWALA HOUSING CONSTRUCTION LTD. 17 SUBSEQUENT RECOVERY AND ITS INCLUSION IN THE INCOME OF SUBSEQUENT YEARS HAVE ALSO NOT BEEN PROPERLY BROUGH T ON THE RECORDS AND ANLYSED BY THE LOWER AUTHORITIES. UNDER THESE CIRCUMSTANCES, IN THE INTEREST OF JUSTICE, WE FIND IT APPROPRIATE TO SEND THIS ISSUE BACK TO THE FILE OF THE AO. THE ASSESSEE SHALL BRING ON RECORD COMPLETE FACTS AND EVIDENCES ON REC ORD AND SHALL ALSO PLACE JUDGMENTS IN SUPPORT OF ITS CLAIM AS MAY BE CONSIDERED APPROPRIATE. THE AO SHALL GIVE ADEQUATE OPPORTUNITY OF HEARING AND SHALL DECIDE THIS ISSUE AFRESH AFTER TAKING INTO ACCOUNT ENTIRE MATERIAL AS MAY BE BROUG HT ON RECORD BY THE ASSESSEE. THE ASSESSEE SHALL BE FREE TO RAISE ALL LEGAL AND FACTUAL ISSUES IN THIS REGARD. WITH THESE DIRECTIONS THIS ISSUE IS SENT BACK TO THE FILE OF THE AO. THIS GROUND MAY BE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 10. GROUND NO.6: THIS GROUND DEAL WITH THE ACTION OF THE LOWER AUTHORITIES IN MAKING DISALLOWANCE OF LONG TE RM CAPITAL LOSS OF RS.24,01,139/- ARISING FROM SALE OF SHARES. 10.1. THE BRIEF BACKGROUND IS THAT IT WAS NOTED BY THE A O THAT IN THE COMPUTATION OF INCOME FILED ALONG WITH RETUR N, THE ASSESSEE COMPANY HAD CLAIMED AFORESAID AMOUNT AS LO NG TERM CAPITAL LOSS AFTER INDEXATION, ARISING ON THE SALE OF SHARES. IN RESPONSE, TO THE AOS REQUIREMENT FOR SUBSTANTIATIO N OF THE SAID CLAIM, THE ASSESSEE SUBMITTED AS UNDER: ' WE HAD MADE AN INVESTMENT OF RS.4.5 LAKH IN F. Y.20 10- 11 BY PURCHASING 4500 SHARES OF RS.100 EACH OF M/S. SHAKUN GASES P LTD WHICH WAS HAVING GAS FILLING PLANT AT BHAVNAGAR. BUT THE SAID COMPANY WAS CLOSED DOWN LONG BACK AS THEY COULD NOT SURVIVE ANYMORE AN D BECAUSE OF THAT WE DID NOT GET OUT MONEY BACK. FURTHER, THERE WERE ENQUIRIES FROM OUR AUDITORS IN REGARD TO THE SAID INVESTMENT. SO, AT LAST, THESE S HARES WERE GIVEN TO THE PROMOTERS AT THE PRICE OF RS..1 P ER SHARE, THUS WE RECOVERED RS.4,500/- AND WE HAVE KAMANWALA HOUSING CONSTRUCTION LTD. 18 WRITTEN OFF THE BALANCE AMOUNT OF RS.4,45,500/-' 10.2. BUT, THE AO WAS NOT SATISFIED WITH THE JUSTIFICATI ON AND THEREFORE, HE DISALLOWED THE CLAIM. 10.3. DURING THE COURSE OF APPEAL BEFORE THE LD. CIT(A), DETAILED SUBMISSIONS WERE MADE BUT THE CLAIM MADE B Y THE ASSESSEE WAS DISALLOWED BY THE LD. CIT(A) WITH FOLL OWING OBSERVATIONS: THE APPELLANT CLAIMS THAT IT HAS INCURRED LOSS ON S ALE OF SHARES OF SHAKUN GASES P LTD. IT IS SEEN THAT TH E LOSS INCURRED IS ON SALE OF UNQUOTED SHARE I.E. M/S SHAK UN GASES PVT LTD. THE STATUS OF COMPANY AT PRESENT IS ACTIVE. MOSTLY THE SHARE OF UNQUOTED SHARES ARE ACQUIRED OF CLOSELY HELD COMPANY. THE DIRECTORS OF THE COMPANY APPEAR AS NITA RAMSHARAN JAIN AND SANJEEV ATTARSEN JAM. THE DIRECTORS OF THE CASE ARE ALSO OF JAIN FAM ILY. THE APPELLANT HAS NOT SUBSTANTIATED THE SALE VALUE OF T HE SHARE OF M/S SHAKUN GASES PVT LTD. UNDER THE ABOVE MENTIONED FACTS IT IS NOT PROPER TO SAY THAT APPELL ANT HAS NOTHING IN ITS KNOWLEDGE ABOUT THE VALUE OF THE SHA RES OF SHAKUN GASES PVT LTD. THE SHARES ARE ALSO SOLD A T RS.1 ONLY. THE APPELLANT SHOULD, IN THE FIRST PLACE, GIV E THE PROPER VALUE OF THE UNQUOTED SHARES. IF, AFTER SUBM ITTING OF SUCH DETAILS, IF ASSESSING OFFICER HAS NOT FOUND THE VALUES PROPER, THEN ONLY THE ONUS WILL SHIFT TO THE ASSESSING OFFICER TO SUBSTANTIATE AS TO WHY THE VALUATION IS NOT FOUND TO BE PROPER. IN THE CASE HE RE, THE APPELLANT HAS NOT PROVIDED ANYTHING FOR ADOPTIO N OF THE VALUE OF SHARES OF M/S SHAKUN GASES PVT LTD. HENCE, IN MY OPINION, IT IS HELD THAT THE APPELLANT SHOULD HAVE TO FIRST SUBSTANTIATE THE VALUE OF RS. 1, WHICH IT ADOPTED FOR S SHARES OF M/S SHAKUN GASES PVT LTD TO ASSOCIATED PERSON. 10.4. BEING AGGRIEVED, THE ASSESSEE FILED BEFORE THE TRI BUNAL. 10.5. DURING THE COURSE OF HEARING BEFORE US IT HAS BEEN SUBMITTED THAT SECTION 40A(2)(B) HAS BEEN WRONGLY A PPLIED AS THE SAID SECTION DOES NOT APPLY ON LOSS OF SALE OF ASSETS BUT ONLY APPLIES UPON CLAIM OF EXPENDITURE MADE IN THE PROFIT AND KAMANWALA HOUSING CONSTRUCTION LTD. 19 LOSS ACCOUNT FOR COMPUTING INCOME THE HEAD INCOME F ROM BUSINESS. FURTHER, MERELY BECAUSE THE PROMOTER OF T HE SAID COMPANY HAILS FROM THE JAIN FAMILY, IT WOULD NOT CO ME AUTOMATICALLY WITHIN THE DEFINITION OF THE TERM REL ATIVE AS ENVISAGED UNDER THE LAW. IT WAS ALSO SUBMITTED THAT THE SHARES WERE SOLD AS THEY HAD BECOME PAPER BECAUSE THE INVE STEE COMPANY WAS CLOSED DOWN LONG BACK. 10.6. PER CONTRA, LD. DR SUBMITTED THAT SINCE THE ASSESS EE COULD NOT BRING SUFFICIENT EVIDENCE TO SUBSTANTIATE THIS CLAIM, THEREFORE IT WAS RIGHTLY DISALLOWED BY THE LOWER AU THORITIES. 10.7. WE HAVE GONE THROUGH THE ENTIRE FACTS AND CIRCUMSTANCES OF THE CASE. IT IS NOTED THAT SECTION 40A(2)(B) HAS BEEN APPLIED BY THE LOWER AUTHORITIES WITHOUT B RINGING ON RECORD AS TO HOW THE SAID TRANSACTIONS IS COVERED W ITHIN THE AMBIT OF THESE PROVISIONS. IT IS TRUE THAT SINCE LO SS HAS BEEN CLAIMED BY THE ASSESSEE, THEREFORE, PRIMARY ONUS LI ES UPON THE SHOULDERS OF THE ASSESSEE TO JUSTIFY THE SAME. BUT, IT IS EQUALLY TRUE THAT NO CLAIM SHOULD BE DISALLOWED ON THE BASI S OF MERE SURMISES AND CONJECTURERS. IT APPEARS THAT IN THIS CASE ALSO BOTH THE PARTIES LACKED IN THEIR DUTIES IN TERMS OF DISCHARGING RESPECTIVE ONUS LIED UPON THEM UNDER THE LAW. THERE FORE, WE FIND IT APPROPRIATE TO SEND THIS ISSUE BACK TO THE FILE OF THE AO. THE ASSESSEE SHALL BRING ON RECORD ALL THE PRIMARY EVIDENCES TO JUSTIFY AND SUBSTANTIATE THE SAID CLAIM. THE AO SHA LL BE AT HIS LIBERTY TO VERIFY THE CLAIM DIRECTLY WITH THE CONCE RNED PARTIES, AS MAY BE CONSIDERED APPROPRIATE BY HIM. BUT, IN AN Y CASE, HE IS NOT ALLOWED TO MAKE THE DISALLOWANCE MERELY FOR THE REASON OF HIS SUSPICION AND GUESS WORK. FURTHER, IT IS CLA RIFIED ONCE KAMANWALA HOUSING CONSTRUCTION LTD. 20 AGAIN THAT PROVISIONS OF SECTION 40A(2)(B) ARE CLEA RLY NOT APPLICABLE UPON THE SAID TRANSACTION IN THE FACTS O F THIS CASE, SINCE NEITHER THE ASSESSEE HAS CLAIMED ANY EXPENDIT URE FOR COMPUTING THE INCOME UNDER THE HEAD BUSINESS NOR TH E PARTIES FALL WITHIN THE DEFINITION OF RELATIVE AS E NVISAGED UNDER THE LAW. NO SUCH FINDING HAS BEEN GIVEN BY THE AO A S TO HOW THE SAID PARTY IS RELATED PARTY AS HAS BEEN ENVISAG ED UNDER THE LAW. THEREFORE, THE AO SHALL EXAMINE THIS ISSUE IN THE LIGHT OF THE FACTS OF THE CASE AND THE LAW AS IS APPLICABLE. THIS ISSUE SHALL BE DECIDED ONLY AFTER PROVIDING ADEQUATE OPPOR TUNITY OF HEARING TO THE ASSESSEE AND AFTER CONSIDERING ENTIR E MATERIAL AS MAY BE BROUGHT ON RECORD BY THE ASSESSEE AND BY THE AO. THIS GROUND MAY BE TREATED AS ALLOWED FOR STATISTIC AL PURPOSES. NOW, WE SHALL TAKE UP APPEAL FILED BY THE REVENUE I N ITA NO. 1404/MUM/2016 FOR A.Y.2011-12 ON THE FOLLOWING GROUNDS: '1.WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE DISALL OWANCE OF RS. 1,51,05,130/- U/S 14A R.W.R.8D OF THE INCOME TA X ACT, 1961 WITHOUT CONSIDERING THE FACTS THAT THE ASSESSE E MADE SUBSTANTIAL INVESTMENTS IN PARTNERSHIP FIRMS THE INCOME FORM WHICH WAS EXEMPT IN ITS HANDS.' 2. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND WHICH MAY BE NECESSARY. 11. THE BRIEF BACKGROUND IS THAT THE AO NOTED THAT ASS ESSEE HAD MADE SUBSTANTIAL INVESTMENT IN PARTNERSHIP FIRM , THE INCOME WHICH IS EXEMPT IN THE HANDS OF THE ASSESSEE . BUT, THE ASSESSEE HAD NOT MADE ANY SUO MOTU DISALLOWANCE U/S 14A. UNDER THESE CIRCUMSTANCES, HE WORKED OUT DISALLOWAN CE U/S 14A ON ACCOUNT OF INTEREST FOR RS.1,37,37,50/- AND ON ACCOUNT KAMANWALA HOUSING CONSTRUCTION LTD. 21 OF ADMINISTRATIVE EXPENSES FOR RS.13,67,600/- AGGRE GATING TO RS.1,51,05,130/-. 11.1. DURING THE APPEAL BEFORE THE LD. CIT(A) DETAILED SUBMISSIONS WERE MADE AND IT WAS VEHEMENTLY SUBMITT ED THAT NO EXEMPT INCOME HAD BEEN EARNED DURING THE YEAR. ACCORDINGLY, LD. CIT(A) DELETED THE DISALLOWANCE MA DE BY THE AO BY OBSERVING AS UNDER: IT IS SEEN THAT THE APPELLANT'S MAIN CONTENTION IS THAT IF THERE IS NO EXEMPT INCOME, THEN THE DISALLOWANCE U/S 14 IS NOT TRIGGERED OFF. THE APPELLANT HAS GIVE N VARIOUS JUDICIAL FINDINGS ON THE ISSUE. THE ASSESSI NG OFFICER HAS NOT DISPUTED THE FACTS THAT THE APPELLANT HAS NOT RECEIVED ANY EXEMPT INCOME DURING THE YEAR. I FIND MERIT IN THE SUBMISSION OF THE APPELLANT THAT UNLESS AND UNTIL, THERE IS RECEIPT O F EXEMPTED INCOME FOR CONCERNED ASSESSMENT YEARS, SECTION 14A CANNOT BE INVOKED. THIS VIEW HAS ALSO BEEN CONFIRMED BY HON'BLE HIGH COURT OF PUNJAB & HARYANA IN THE CASE OF LAKHANI MARKETING INC (49 TAXMANN.COM 257) AND HONBIE HIGH COURT OF ALLAHABAD IN THE CASE OF M/S SHIVAM MOTORS (P) LTD ( 55 TAXMANN.COM 262). THUS, THE DISALLOWANCE OF EXPENSES OF RS.1,51,05,130/- IS DELETED. 11.2. DURING THE COURSE OF HEARING BEFORE US, IT WAS SUB MITTED THAT OWN FUNDS OF THE ASSESSEE ARE FAR MORE THAN IN VESTMENT MADE IN PARTNERSHIP FIRM. THUS, NO DISALLOWANCE ON ACCOUNT OF INTEREST COULD HAVE BEEN MADE. FURTHER, SINCE NO EX EMPT INCOME HAS BEEN EARNED DURING THE YEAR UNDER CONSID ERATION, NO DISALLOWANCE COULD BE MADE U/S 14A. IT WAS ALSO SUBMITTED THAT INVESTMENT WAS MADE IN THE PARTNERSHIP FIRM FO R STRATEGIC REASONS. THEREFORE, THIS INVESTMENT SHOULD BE EXCLU DED FOR THE PURPOSE OF MAKING ANY DISALLOWANCE. IN RESPONSES TO THIS KAMANWALA HOUSING CONSTRUCTION LTD. 22 ARGUMENT THAT NO DISALLOWANCE COULD BE MADE IN ABSE NCE OF ANY EXEMPT INCOME FOLLOWING JUDGMENT WERE RELIED: 1. CHEMINVEST LIMITED V. CIT ITA NO. 749/2014 ORDER DATED 02.09.2015 2. CIT V. DELITE ENTERPRISES JUDGMENT DATED 26.02.2 009 OF BOMBAY HIGH COURT. 3. CIT V. CORRTECH ENERGY (P.) LTD. 45 TAXMANN.COM 116 (GUJARAT) 4. CIT V. SHIVAM MOTORS- JUDGMENT DATED 5.5.2014 OF ALL HIGH COURT 5. CIT V. LAKHANI MARKETING INCL. JUDGMENT DATED 02 .04.2014 (P & H) 6. CIT V. WINSOME TEXTILE INDUSTRIES LTD. 319 ITR 2 03(P & H) 7. M/S. DAGA GLOBAL CHEMICALS PVT. LTD. V. ACIT ITA NO.5592/MUM/2012 8. ITO V. PIONEER RADIO TRAINING SERVICES PVT. LTD. ITA NO.4448/DEL/2013 11.3 . PER CONTRA LD. DR RELIED UPON THE ORDER OF THE AO . 11.4. WE HAVE GONE THROUGH THE FACTS AND CIRCUMSTANCES O F THE CASE. IT IS ADMITTED CASE THAT NO EXEMPT INCOME HAS BEEN EARNED DURING THE YEAR, THEREFORE, LD. CIT(A) DELET ED THE DISALLOWANCE MADE BY THE AO. IT IS NOTED THAT THE O RDER OF LD. CIT(A) IS NOW SUPPORTED WITH VARIOUS JUDGMENTS AS H AVE BEEN RELIED UPON BY THE LD. COUNSEL BEFORE US. THEREFORE , RESPECTFULLY FOLLOWING THESE JUDGMENTS IT IS NOTED THAT NO INTERFERENCE IS CALLED FOR BY US IN THE ORDER PASSE D LD. CIT(A). THEREFORE, HIS ORDER IS UPHELD. WE ARE NOT GOING IN TO OTHER ISSUES AT THIS STAGE. KAMANWALA HOUSING CONSTRUCTION LTD. 23 12. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DISM ISSED. NOW WE SHALL TAKE ASSESSEES APPEAL FOR A.Y. 2012-1 3 IN ITA NO. 5488/MUM/2016 ON THE FOLLOWING GROUNDS: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND L AW, THE LD. CIT(A) ERRED IN CONFIRMING THE NON REDUCTIO N OF THE INTEREST INCOME OF RS.2,91,30,922/- FROM THE TO TAL INCOME OF ASSESSEE, AS THE SAME IS ASSESSED IN A.Y.2011-12 ON THE ASSUMPTION OF CRYSTALLIZATION OF INTEREST IN A.Y. 2011-12 AGAINST THAT OFFERED BY AS SESSEE IN A.Y. 2012-13. 2.ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LA W, THE LD. CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF RS. 10,04,000/- PAID AS RENT IN VIEW OF SECTION 40A (2)(B) OF THE I.T. ACT, 1961 AND ADDITION OF THE SAME TO T HE TOTAL INCOME OF THE ASSESSEE. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND L AW, THE LD. CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF THE EXPENDITURE OF RS. 10,48,931/- IN VIEW OF SECTI ON 14A OF THE I T ACT, 1961 AND ADDITION OF THE SAME T O THE TOTAL INCOME OF THE ASSESSEE. 4. THE LD. CIT(A) ERRED IN CONFIRMING THE INTEREST CHARGED U/S 234B & 234C OF THE I. T. ACT . 5. THE LD. CIT(A) ERRED & INVOKED THE PENALTY PROVI SIONS U/S 271(1 )(C) OF THE INCOME TAX ACT. 6. THE ASSESSEE CRAVES LEAVE TO ADD, ALTER OR AMEND THE EXISTING GROUNDS OF APPEAL ON OR BEFORE THE DAT E OF HEARING. 13. GROUND NO.1: THIS IS SAME AS GROUND NO.1 OF ASSESSEES APPEAL FOR A.Y. 2011-12, THEREFORE, OUR ORDER FOR A Y 2011-12 APPLIES ON THIS GROUND MUTATIS-MUTANDIS ON FACTS OF THIS YEAR. THE AO IS DIRECTED TO FOLLOW OUR ORDER FOR A.Y. 201 1-12. THIS GROUND MAY BE TREATED AS ALLOWED IN ACCORDANCE WITH OUR DIRECTIONS AS CONTAINED IN A.Y. 2011-12. KAMANWALA HOUSING CONSTRUCTION LTD. 24 14. GROUND NO.2: THIS IS SAME AS GROUND NO.4 OF ASSESSEES APPEAL FOR A.Y. 2011-12 AND RESPECTFULLY FOLLOWING OUR ORDER, THIS GROUND IS ALLOWED. 15. GROUND NO.3: THIS GROUND DEALS WITH THE DISALLOWANCE MADE U/S 14A. 15.1. THE BRIEF BACKGROUND IS THAT THE AO HAD MADE DISALLOWANCE ON THE SIMILAR PATTERN AS WAS MADE IN A.Y. 2011- 12. THE TOTAL DISALLOWANCE WAS MADE OF RS.1,08,15,7 00/- COMPRISING OF A SUM OF RS.97,66,769/- ON ACCOUNT OF INTEREST AND A SUM OF RS.10,48,931/- ON ACCOUNT OF EXPENSES. 15.2. IN THE APPEAL BEFORE THE LD. CIT(A), DISALLOWANCE OF INTEREST WAS DELETED ON THE GROUND THAT NO INTERES T BEARING FUNDS WERE UTILIZED BY THE ASSESSEE FOR INVESTMENT IN PARTNERSHIP FIRMS. IT WAS SUBMITTED THAT NO APPEAL HAS BEEN FILED BY THE REVENUE ON THIS ISSUE. THEREFORE WE LE AVE IT AT THAT STAGE. 15.3. WITH REGARD TO DISALLOWANCE OF EXPENSES, THE SAME WAS CONFIRMED BY THE LD. CIT(A) WITH FOLLOWING OBSERVAT IONS: FURTHER, IT IS A FACT THAT THE APPELLANT HAS NOT ON LY RECEIVED THE EXEMPT INCOME BUT ALSO RECEIVED THE TAXABLE INTEREST ON CAPITAL FROM THE FIRM. HENCE TH E DECISION RELIED BY THE AO IS NOT APPLICABLE AS IN T HAT CASE ONLY THE EXEMPT INCOME FROM THE FIRM IS RECEIVED. B UT THERE WAS DEFINITELY CERTAIN EXPENSE IN FORM OF ADMINISTR ATIVE EXPENSE WHICH IS INDIVISIBLE AND INCURRED FOR EARNI NG EXEMPT INCOME AND THAT NEEDS TO BE DISALLOWED U/S 1 4A OF THE ACT. ACCORDINGLY, THE DISALLOWANCE MADE U/S 14A R W RULE 8D(2)(III) OF RS 10,48,931/- IS CONFIRMED. THE REFORE, GROUND OF APPEAL NO 3 IS PARTLY ALLOWED. 15.4. THE ASSESSEE IS AN APPEAL BEFORE US AGAINST THE DISALLOWANCE SUSTAINED BY THE LD. CIT(A). IT IS NOT ED THAT EXEMPT INCOME HAS BEEN EARNED BY THE ASSESSEE DURIN G THE KAMANWALA HOUSING CONSTRUCTION LTD. 25 YEAR UNDER CONSIDERATION. NOTHING HAS BEEN BROUGHT BEFORE US THAT WHY DISALLOWANCE OF 0.5% OF AVERAGE VALUE OF I NVESTMENTS AS ENVISAGED UNDER RULE 8D(2)(III) SHOULD NOT BE MA DE IN THE GIVEN FACTS OF THIS CASE. FURTHER, NOTHING INCORREC T HAS BEEN POINTED OUT IN THE ORDER PASSED BY LD. CIT(A) WHILE CONFIRMING THE DISALLOWANCE. UNDER THESE CIRCUMSTANCES, WE HAV E NO OPTION BUT TO CONFIRM THE DISALLOWANCE. THEREFORE D ISALLOWANCE SUSTAINED BY THE LD. CIT(A) U/S 14A IS HEREBY CONFI RMED. THIS GROUND IS DELETED. 16. IN THE RESULT, THIS APPEAL IS PARTLY ALLOWED. 17. IN THE RESULT, BOTH APPEALS FILED BY THE ASSESSEE IS PARTLY ALLOWED AND APPEAL FILED BY THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH FEBRUARY, 2017. SD/- (MAHAVIR SINGH ) SD/- (ASHWANI TANEJA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 15/02/2017 CTX? P.S/. .. !'#$%&%'# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT, MUMBAI. 4. / CIT(A)- , MUMBAI 5. #$% &' , &' ) , / DR, ITAT, MUMBAI 6. %*+ , / GUARD FILE. / BY ORDER, # //TRUE COPY// / (DY./ASSTT. REGISTRAR)