BTW-Atlanta Transformers India Pvt. Ltd., Bharuch V. ACIT, Circle-1(1)(1), Vadodara

ITA 1642/AHD/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2673 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 7 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-03-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 03-03-2020
• Assessment Year: 2013-2014
• Appeal Filed On: 09-07-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: S N SOPARKAR
• Keywords: Capital asset; Business income; Depreciation; Rectification of order; Capital receipt; Revenue expenditure; Capital expenditure; CHAPTER IV
• Section: 115JB; 143(2); 13; 154; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH BEFORE: SHR I SANDEEP GOSAIN , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER BTW - ATLANTA TRANSFORMERS INDIA PVT. LTD. SURVEY NO. 192/1, 192/3, 193 TO 199 & 209, ANKHI JAMBUSAR BHARUCH, GUJARAT - 392150 PAN: AAECB9579N (APPELLANT) VS THE ACIT , CIRCLE - 1 ( 1 )(1 ) , VADODARA (RESPONDENT) RE VENUE BY : S H RI VIDHYUT TRIVEDI , SR. D . R. ASSESSEE BY: SHRI S.N.SOPARKAR , A.R. DATE OF HEARING : 03 - 0 3 - 2 020 DATE OF PRONOUNCEMENT : 06 - 03 - 2 020 / OR DER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THESE TWO APPEALS FILED BY ASSESSEE FOR A.Y. 2013 - 14 & 2014 - 15 , ARI SE FROM ORDER OF THE CIT(A) - 1, VADODARA DATED 06 - 04 - 2 018 , IN PROCEEDINGS UNDER SECTION 1 4 3(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE AC T . I T A NO S . 1642 & 1643 / A HD/20 1 8 A SS ESSMENT YEAR 2013 - 14 & 2014 - 15 I.T.A NO. 1642 & 164 3 /AHD/20 18 A.Y. 2013 - 14 & 2014 - 15 PAGE NO SHRI BTW - ATLANTA TRANSFORMERS INDIA PVT. LTD. VS. ACIT 2 2 . THESE TWO APPEALS PERTAINING TO DIFFERENT ASSESSMENT YEARS ARE FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A). SINCE BOTH THESE APPEALS ARE BASED ON SIMILAR ISSUE AND IDENTICAL FACTS, THEREFORE, FOR THE SAKE OF CONVENIENCE, BOTH THESE APPEALS ARE ADJUDICATED TOGETHER BY TAKING ITA NO. 1642/AHD /2018 PERTAINING TO ASSESSMENT YEAR 2013 - 14 AS LEAD CASE AND ITS FINDINGS WILL BE APPLICABLE TO THE OTHER APPEAL OF THE ASSESSEE PERTAINING TO THE ASSESSMENT YEAR 2014 - 15. 3 . THE FACT IN BRIEF IS THAT THE RETURN OF INCOME DECLARING TOTAL INCOME OF RS. - 6 8 , 27 , 726/ - WAS FILED ON 16 TH OCTOBER, 2014 AND BOOK PROFIT U/S. 115JB OF THE ACT OF RS. NIL. THE CASE WAS SUBJECT TO SCRUTINY ASSESSMENT AND NOTICE U/S. 143(2) OF THE ACT WAS ISSUED ON 2 ND SE P, 2014. DURING THE COURSE OF ASSESSMENT, T HE ASSESSING OFFICER NOTICED THAT DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE HAS NOT ENTERED INTO ANY BUSINESS TRANSACTION AND WAS NOT HAVING ANY BUSINESS INCOME. T HE ASSESSING OFFICER NOTICED THAT ASSES SEE HAS CLAIMED VARIOUS EXPENSES LIKE SALARY/ENTERTAINMENT EXPENSES/ FOREIGN TRAVELLING EXPENSES ETC., H OWEVER, THE ASSESSEE HAS NOT SHOWN ANY INCOME FROM ITS OPERATIONS. T HE ASSESSEE HAD SHOWN INCOME OF RS. 1,80,56,955/ - FROM INTEREST ON FIXED DEPOSIT H ELD WITH BANK. ACCORDINGLY, TH E ASSESSING OFFICER HAS ASKED THE ASSESSEE VIDE NOTICE DATED 29 TH AUGUST, 2016 TO EXPLAIN AS TO WHY THE EXPENSES CLAIMED SHOULD BE NOT DISAL LOWED BY TREATING AS CAPITAL EXPENSES AS NO OPERATIONAL REVENUE HAD BEEN SHOWN DURING THE YEAR UNDER CONSIDERATION. T HE EXPLANATION OF THE ASSESSEE FURNISHED VIDE LETTER D A TED 12 TH SEP, 2016 WAS REPRODUCED BY THE ASSESSING OFFICER AT PAGE NO.7 TO 8 OF THE ASSESSMENT ORDER. IN HIS WRITTEN SUBMISSION, THE ASSESSEE HAS BRIEFLY STATED THAT T HE COMPANY WAS I.T.A NO. 1642 & 164 3 /AHD/20 18 A.Y. 2013 - 14 & 2014 - 15 PAGE NO SHRI BTW - ATLANTA TRANSFORMERS INDIA PVT. LTD. VS. ACIT 3 INCORPORATED ON 13 TH MARCH, 2012 AND THE REVENUE EXPENSES HAVE BEEN INCURRED FOR DAY TO DAY RUNNING OF THE COMPANY I N ORDER TO MEET THE OPERATIONAL COST. I T WAS ALSO STATED THAT EXPENSES HAVE NOT BEEN INCURRED DIRECTLY OR INDIRECTLY ATTRIB UTABLE TO COST OF NEW ASSET. THE ASSESSEE HAS ALSO REFERRED VARIOUS JUDGMENTS IN ITS SUBMISSION MADE BEFORE THE ASSESSING OFFICER. THE ASSESSING OFFICER HAS NOT ACCEPTED THE SUBMISSION OF THE ASSESSEE. THE ASSESSING OFFICER HAS STATED THAT ASSESSEE HAD NOT SHOWN ANY OPERATIONAL INCOME SINCE ITS INCEPTION, THEREFORE, CLAIM OF ALLOWABILITY OF OPERATIONAL EXPENDITURE CANNOT BE ALLOWED. THE ASSESSING OFFICER HAS ALSO STA T ED TH AT IT CAN BE VERIFIED FROM POINT NO. 4.0 OF THE 3CD REPORT WHEREIN IT WAS MENTIONE D THAT DETAILS REGARDING TURNOVER/GROSS PROFIT ETC . FOR THE PREVIOUS YEAR AND PRECEDING YEARS WERE NOT AVAILABLE AS THE ASSESSEE WAS NEITHER ENGAGED IN MANUFACTURING NOR IN TRADING ACTIVITIES. THE ASSESSING OFFICER HAS ALSO STATED THAT BY POINT NO. 1(C)(I I) OF THE ANNEXURE TO AUDI TOR S REPORT, A STATUTORY AUDITOR HAD REPORTED THAT ASSESSEE COMPANY DID NOT HAVE ANY INVENTORY. IN THE LIGHT OF THE ABOVE FACTS, THE ASSESSING OFFICER HAS STATED THAT NO ACTIVITIES HAVE BEEN COMMENCED IN THE F. Y. 2012 - 13 AND THE ASSESSEE HAS NOT COMMENCED ITS OPERATION, THEREFORE, REVENUE EXPENDITURE CLAIMED WERE TREATED AS PRELIMINARY EXPENSES. THEREAFTER, THE ASSESSEE HAS FILED AN RECTIFICATION APPLICATION U/S. 154 OF THE ACT ST ATING THAT IN THE ASSESSMENT ORDER THE ASSESSING OFFICER HAS DISALLOWE D EXPENDITURE TO THE AMOUNT OF R S. 3 , 45 , 80 , 142/ - INCLUDING THE EXPENDITURE TOTALING TO THE AMOUNT OF RS. 1 , 18 , 68 , 120/ - HAD ALREADY BEEN DISALLOWED BY THE ASSESSEE COMPANY SUO MOTO IN THE RETURN OF INCOME. SUBSEQUENTLY, THE ASSESSING O FFICER HAS PASSED RECTIFICATION ORDER U/S. 154 OF THE ACT AND REDUCED DISALLOWANCE OF EXPENSES AMOUNTING TO RS. 1,18,68,120/ - WHICH HAD ALREADY BEEN DISALLOWED BY THE I.T.A NO. 1642 & 164 3 /AHD/20 18 A.Y. 2013 - 14 & 2014 - 15 PAGE NO SHRI BTW - ATLANTA TRANSFORMERS INDIA PVT. LTD. VS. ACIT 4 ASSESSING OFFICER IN HIS RETURN OF INCOME. IN THIS MANNER DISALLOWED EXPENSES HAS BEEN REDUCED TO RS. 2 , 33 , 36 , 067/ - STATING THAT BUSINESS ACTIVITY OR COMMERCIAL ACTIVITY HAVE NOT BEEN STARTED DURING THE YEAR UNDER CONSIDERATION . 4 . AGGRIEVED ASSESSEE HAS FILED APPEAL BEFORE THE LD. CIT(A). T HE LD. CIT(A) HAS DISMISSED THE APPEAL OF TH E ASSESSEE. THE ASSESSEE HAS ALSO RAISED ALTERNATIVE GROUND OF APPEA L BEFORE THE LD. CIT(A) STATING IF THE DISALLOWANCE OF CLAIM OF EXPENSES MADE BY THE ASSESSING OFFICER IS UPHELD THEN THE INTEREST EARNED BY THE ASSESSEE PRIOR TO THE COMMENCEMENT OF BU SINESS SHOULD ALSO BE TREATED AS CAPITAL RECEIPT. HOWEVER, THE LD. CIT(A) HAS STATED THAT SINCE THE ASSESSING OFFICER HAS NOT ADJUDICATED UPON THE NATURE OF INT EREST INCOME, THEREFORE, HE HELD THAT ALTERNATIVE GROUND WAS NOT ARISED FROM T HE ORDER OF ASSE SSMENT. T HE LD. CIT(A) HAS ALSO STATED THAT THE DECISION OF INDIAN OIL PANIPAT POWER CONSORTIUM LTD. AND ADANI POWER LTD. 315 ITR 255 REFERRED BY THE ASSESSEE WAS DISTINGUISHABLE FROM THE FACTS IN THE CASE OF THE ASSESSEE AS WHOLE AMOUNT OF SHARE CAPITAL W AS NOT INVESTED IN FIXED DEPOSIT IN THE CASE OF THE ASSESSEE. ACCORDINGLY, THE LD. CIT(A) HAS ALSO DISMISSED THE ALTERNATIVE GROUND OF APPEAL OF THE ASSESSEE. 5 . DURING THE COURSE OF APPELLATE PROCEED INGS BEFORE US, THE LD. COUNSEL HAS SUBMITTED PAPE R BOOK COMPRISING DETAIL OF INFORMATION AND COPIES OF DOCUMENTS FURNISHED BEFORE THE ASSESSING OFFICER AND CIT(A) DURING THE COURSE OF ASSESSMENT AND APPELLATE PROCEEDINGS. THE LD. COUNSEL HAS CONTENDED THAT DURING THE YEAR THE ASSESSEE HAS STARTED CONSTR UCTION OF THE FACTORY INCURRED VARIOUS EXPENSES FOR DA Y TO DAY RUNNING OF THE COMPANY I.T.A NO. 1642 & 164 3 /AHD/20 18 A.Y. 2013 - 14 & 2014 - 15 PAGE NO SHRI BTW - ATLANTA TRANSFORMERS INDIA PVT. LTD. VS. ACIT 5 AND EARNED INTEREST INCOME FROM FIXED DEPOSITS. THE LD. COUNSEL HAS SUBMITTED THAT CONCEPT OF COMMENCEMENT OF BUSINESS AND SET OFF OF BUSINESS ARE TWO DIFFERENT CONCEP TS AND EXPENDITURE INCURRED POST SET UP OF BUSINESS AND PRIOR TO COMMENCEMENT OF BUSINESS ARE ALLOWABLE EXPENSES. THE ASSESSEE HAS PLACED RELIANCE ON THE FOLLOWING PRONOU NCEMENTS : - - WESTERN INDIA VEGETABLE PRODUCTS LIMITED V. CIT (1954) 26ITR151 (BOMBA Y HC) - CIT VS. SAMSUNG INDIA ELECTRONICS LIMITED (2013) 356 ITR 354 (DELHI HC) - CIT V. HUGHES ESCORTS COMMUNICATIONS (2007) 165 TAXMAN 3I8(DELHI HC) - CIT VS. SAURASHTRA CEMENT & CHEMICAL INDUSTRIES LTD. (1973) 91 ITR 170 (GUJARAT HC) THE LD. COUN SEL HAS SUBMITTED THAT ASSESSEE COMPANY HAS OBTAINED NECESSARY REGULATORY REGISTRATION AND APPROVAL REQUIRED FOR COMMENCEMENT OF ITS BUSINESS AND AL SO SET UP ITS ADMINISTRATIVE OFFICE AND RECRUITED EMPLOYEES FOR THE PURPOSES OF BUSINESS. THE ASSESEE COMPA NY HAS ALSO INCURRED EXPENSES OF FOREIGN TRAVEL OF ITS EMPLOYEES FOR SELECTION OF VENDORS FOR PLANT AND MACHINERY. THE ASSESSEE HAS ALSO ENTERED INTO AN AGREE MENT WITH ITS PARENT COMPANY FOR LICENSING OF TECHNICAL KNOWHOW IN RELATION O F MANUFACTURING PROC ESS ETC. 6. IN RESPECT OF ALTERNATIVE GROUND OF APPEAL , THE LD. CO UNSE L HAS CONTENDED THAT INTEREST INCOME SHOULD BE CONSIDERED AS CAPITAL RECEIPT AND NOT CHARGEABLE TO TAX. IN THIS REGARD, THE LD. C O UNSE L HAS SUBMITTED THAT ASSESSEE COMPANY HAS AL SO MADE A SUBMISSION ON THIS POINT BEFORE THE LD. CIT(A) THAT INTEREST INCOME EARNED FROM PRE - COMMENCEMENT PERIOD SHOULD NOT BE SUBJECT TO TAX AND I T IS CAPITAL IN NATURE AND SHOULD BE REDUCED FROM THE COST OF PROJECT. IN THIS REGARD, THE ASSESSEE HAS AL SO PLACED RELIANCE ON THE FOLLOWING JUDICIAL PRON OU NCEM ENTS : - A.HONT)LE DELHI HIGH COURT IN THE CASE OF INDIAN OIL PANIPAT POWER CONSORTIUM LTD. V. ITO [(2009) 315 ITR 255] I.T.A NO. 1642 & 164 3 /AHD/20 18 A.Y. 2013 - 14 & 2014 - 15 PAGE NO SHRI BTW - ATLANTA TRANSFORMERS INDIA PVT. LTD. VS. ACIT 6 B.HON'BLEAHMEDABADLTATIN THE CASE OF ADANI POWER LTD. V. ACIT[(2015) 155ITD 239] C. HON BLE AHMEDABAD ITAT IN THE CASE OF GSPC PIPAVAV POWER COMPANY LTD. VS. ITO VIDE ITA NO. 1613/AHD/2016 DATED 17 - 10 - 2019 THE LD. COUNSEL HAS ALSO REFERRED VARIOUS PAGES OF PAPER BOOK I.E. AUDITED BALANCE SHEET OF THE COMPANY ON 31 ST MARCH, 2013, P & L A /C OF THE ASSESSEE FOR THE YEAR ENDED 31 ST MARCH, 2013 AND SCHEDULE OF FIXED ASSETS OF THE COMPANY AS ON 31 ST MARCH, 2013 AND SCHEDULE FOR OTHER INCOME VIDE WHICH THE INTEREST ON BANK DEPOSIT WAS SHOWN TO THE AMOUNT OF RS. 1 , 80 , 56 , 955/ - . ON THE OTHER HAND , LD. DEPARTMENTAL REPRESENTATIVE PLACED RELIANCE ON THE FINDING OF LD. CIT(A). 7 . WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MATERIAL ON RECORD. DURING THE ASSESSMENT YEAR, THE ASSESSING OFFICER NOTICED THAT ASSESSEE HAS CLAIMED VARIOUS EXPENSES I N THE P & L ACCOUNT ON ACCOUNT OF EMPLOYEES BENEFIT EXPENSES , F INANCE COST, DEPRECIATION AN D OTHER EXPENSES AGAINST INCOME FROM FIXED DEPOSIT AT RS. 1 , 80 , 66 , 955/ - . THE ASSESSING OFFICER HAS DISALLOWED THE CLAIM OF REVENUE EXPENDITURE OF THE ASSESSE E TO TH E AMOUNT OF R S. 2,33,36,0 67/ - STATING THAT BUSINESS ACTIVITIES OR COMMERCIAL OPERATIONS HAVE NOT BEEN STARTED DURING THE YEAR UNDER CONSIDERATION. THE LD. CIT(A) HAS SUSTAINED THE DISALLOWANCE MADE BY THE ASSESSING OFFICER STATING THAT ASSESSEE COMPANY H AS NOT YET COMMENCED ITS BUSINESS, THEREFORE, THE CLAI M OF EXPENDITURE CANNOT BE ALLOWED. IN RESPECT OF ALTERNATIVE CLAIM OF THE ASSESSEE THAT IF THE DISALLOWANCE OF EXPENDITURE MADE BY THE ASSESSING OFFICER IS UPHELD , THEN , THE INTEREST INCOME PRIOR TO THE COMMENCEMENT OF BUSINESS SHOULD BE TREATED AS CAPITAL RECEIPT, T HE LD. CIT(A) HAS DISMISSED THIS GROUND OF THE ASSESSEE STATING THAT ASSESSING OFFICER HAS NOT ADJUDICATED I.T.A NO. 1642 & 164 3 /AHD/20 18 A.Y. 2013 - 14 & 2014 - 15 PAGE NO SHRI BTW - ATLANTA TRANSFORMERS INDIA PVT. LTD. VS. ACIT 7 UPON THE NATURE OF INTEREST INCOME AND THIS GROUND WAS NOT ARISED FROM THE ORDER OF ASSESSMENT. THE ASSESSEE COMPANY HAS POINTED OUT THAT IT HAS SET UP ITS BUSINESS AND IT HAS UNDERTAKEN THE FOLLOWING ACTIVITIES: - (I) OBTAINED NECESSARY REGULATORY REGISTRATION AND APPROVAL REQUIRED FOR COMMENCEMENT OF ITS BUSINESS (II) SET UP ADMINI STRATIVE OFFICE AND RECRUITED EMPLOYEES FOR THE PURPOSE (II) INCURRED EXPENSES FOR FOREIGN TRAVELLING OF ITS EMPLOYEES FOR SELECTION OF VENDORS FOR PLANT AND MACHINERY (IV) ENTERED I N TO AGREEMENT WITH ITS PARENT COMPANY FOR LICENSING OF TECHNICAL KNOW - HO W IN RELATION TO MANUFACTURING PROCESS . (V) SENT ITS EMPLOYEES TO PARENT OFFICE TO UNDERTAKE MANUFACTURING AND PROCUREMENT PROCESS. AFTER PERUSAL OF THE MATERIAL ON RECORD, WE OBSERVE THAT IT IS NOT SUBSTANTIATED WITH RELEVANT EVIDENCES THAT BUSINESS HAS BEEN SET UP. WE HAVE ALSO GONE THROUGH THE JUDICIAL PRONOUNCEMENTS REFERRED BY THE LD. COUNSEL AND NOTICED THAT FACTS OF THESE CASES ARE DISTINGUISHABLE FROM THE CASE OF THE ASSSESSEE. IN THE CASE OF WESTERN INDIA VEGETABLES PRODUCT LTD. VS. CIT (1954) 26 ITR 151 (BOM . ) IT IS HELD T HAT FIRST PURCHASE OF RAW MATERIAL WAS MADE IN END OF SEP. 1946 FROM WHICH INFERENCE COULD BE DRAWN THAT ASSESSE E HAD SET UP ITS BUSINESS BY THAT DATE. IN THE CASE OF CIT VS. SAMSUNG INDIA ELECTRONICS LTD. (2013) 37 TAXMANN.C OM 239 (DELHI) THE ASSESSEE COMPANY WAS READY TO COMMENCE TRADING OPERATION AS ON THE DATE OF INCORPORATION VIZ. 3.8.1995. IN THE CASE OF PREM CONDUCTORS (P) LTD. VS. CIT (1977) 108 ITR 654 (GUJ . ) IT WAS SEEN THAT ASSESSEE COMPANY HAS STARTED ACCEPTING OR DERS FOR PRODUCTION OF GOODS SINCE VERY DATE OF ITS I.T.A NO. 1642 & 164 3 /AHD/20 18 A.Y. 2013 - 14 & 2014 - 15 PAGE NO SHRI BTW - ATLANTA TRANSFORMERS INDIA PVT. LTD. VS. ACIT 8 INCORPORATION. IN THE LIGHT OF THE FACTS OF THE CASE, MATERIAL ON RECORDS AND JUDICIAL FINDINGS, WE CONSIDER IT IS NOT SUBSTANTI AT ED THAT ASSESSEE HAS COMMENCED ITS BUSINESS OPERATIONS DURING THE YEAR UN DER CONSIDERATION AND THE EXPENSES CLAIMED BY THE ASSESSEE COMPANY APPEARED TO BE AT THE STA G E OF SETTING UP OF ITS BUSINESS, THEREFORE, THIS GROUND OF APPEAL IS DISMISSED. 8. REGARDING ALTERNATIVE GROUND OF APPEAL THE LD. COUNSEL HAS SUBMITTED THAT I NTEREST INCOME EARNED FROM TEMPORARY DEPOSIT OF THE FUND BROUGHT BY WAY OF SHARE CAPITAL ARE INEXTRICABLY LINKED TO SETTING UP OF MANUFACTURING FACILITIES AND SAME SHOULD BE CONSIDERED AS CAPITAL IN NATURE AN D SHOULD BE REDUCED FROM THE COST OF THE PROJECT . THE LD. COUNSEL HAS PLACED RELIANCE ON THE VARIOUS JUD ICIAL PRONOUNCEMENTS AS CITED AB O VE IN THIS ORDER. I N RESPECT OF ALTERNATIVE CLAIM OF THE ASSESSEE , WE ARE OF THE VIEW TH A T ON C E IT HAS BEEN CONSIDER ED THAT ASSESSEE HAS NOT COMMENCED ITS BUSINESS, THEREFORE, THE INTEREST INCOME EARNED BY THE ASSESSEE PRIOR TO THE COMMENCEMENT OF THE BUSINESS IS REQUIRED TO BE TREATED AS CAPITAL RECEIPT. IN THIS REGARD, WE HAVE GONE THROUGH THE JUDICIAL PRON OU NCE MENT REFERRED BY THE LD. COUNSEL IN THE CASE OF INDIA N OIL PANIPAT POWER CONSORTIUM LTD. VS. ITO 181 TAXMAN 249 WHEREIN HON BLE DELHI HIGH COURT HAS HELD THAT INCOME EARNED IN A PERIOD PRIOR TO COMMENCEMENT TO ITS BUSINESS IT WAS IN NATURE OF CAPITAL RECEIPT AND AS WELL AS WAS REQ UIRED TO BE SET OFF AGAINST PRE - OPERATIVE EXPENSES. WE HAVE ALSO GONE THROUGH THE JUDICIAL PRONOUNCEMENTS REFERRED BY T H E LD. COUNSEL IN THE CASE OF NTPC, SAIL POWER COMPANY PVT. LTD. VS. CIT (2012) 25 TAXMAN.COM 401 DELHI WHEREIN IT IS HELD THAT FUNDS INVESTED BY ASSESSEE COMPANY A ND INTE RE ST EARNED WERE INEXTRICABLY LINKED WITH SETTING UP NEW POWER PLANT AND THEREFORE, INTEREST EARNED SHALL BE TREATED AS CA P ITAL I.T.A NO. 1642 & 164 3 /AHD/20 18 A.Y. 2013 - 14 & 2014 - 15 PAGE NO SHRI BTW - ATLANTA TRANSFORMERS INDIA PVT. LTD. VS. ACIT 9 INTEREST RECEIPT NOT TO TAX. WE HAVE ALSO GONE THROUGH THE JUDICIAL PRONOUNCEMENT REFERRED BY THE LD. COUNSEL IN THE CAS E OF CIT VS. PETRONET LNG (2011) 10 TAXMAN.COM 257 DELHI WHEREIN IT IS HELD T H AT INTEREST EARNED ON FUND WHICH OUGHT TO BE UTI L IS ED FOR PURCHASE OF CAPITAL ASSET/SETTING UP OF BUSINESS SHOULD BE TREATED AS CAPITAL RECEIPT NOT EXIGIBE TO TAX UNDER THE HEAD INCOME FROM OTHER SOURCES . IN ADDITION TO ABOVE, THE LD. COUNSE L HAS ALSO REFERRED THE VARIOUS DECISIONS OF THE CO - ORDINATE BENCHES OF THE ITAT IN THE CASE OF ADANI POWER LTD. VS. ACIT (2015) 61 TAX M AN.COM 335 ( AHMEDABAD TRI) WHEREIN IT IS HELD THAT INTER EST RECEIPT RELATED TO PRIOR PERIOD TO COMMENCEMENT OF BUSINESS WAS IN NATURE OF CAPITAL RECEIPT AND WAS REQUIRED TO BE SET OFF AGAINST PRE - OPERATIVE EXPENSES . T H E CO - ORDINATE BENCH OF THE IT AT IN THE C A SE OF ITO ADANI POWER NAHARAT RA LTD. ITA NO.2401/AHD/ 2014 DATED 13 TH DEC, 2018 HAS HELD THAT SIMILAR INTEREST INCOME IS TO BE TREATED AS CAPITAL EXPENDITURE. THEN , THE CO - ORDINATE B ENCH OF THE ITAT IN THE CASE OF GSPC POWER COMPANY LTD. VS. ITO VIDE ITA NO. 1613/AHD/2016 DATED 17 - 10 - 2019 AFTER FOLLOWING THE DECISION OF CO - ORDINATE BENCHES HAS HELD THAT INTEREST INCOME WAS A CAPITAL RECEIPT NOT CHARGEABLE TO TAX DURING THE YEAR UNDER CONSIDERATION. RELEVANT PART OF THE DECISION OF THE CO - ORDINATE BENCH IS AS UNDER: - 5. WE HAVE HEARD BOTH THE SIDES AND PERUS ED THE MATERIAL ON RECORD. IT IS UNDISPUTED FACT THAT ASSESSEE HAS BORROWED FUNDS FROM VARIOUS BANKS FOR ITS PROJECTS. THE ASSESSEE HAS EARNED INTEREST INCOME ON TEMPORARY INVESTMENT OF SAME FUND IN FD TILL THE UTILIZATION OF THE SAME FUNDS IN THE PROJE CT. THE TOTAL INTEREST INCOME OF RS. 21,36,319/ - HAS BEEN CONSIDERED BY THE ASSESSEE AS CAPITAL RECEIPT WHICH OUGHT TO HAVE BEEN INEXTRICABLY LINKED WITH THE PROCESS OF SETTING UP PLANT AND MACHINERY, SUCH RECEIPT WILL GO TO REDUCE THE COST OF ITS ASSETS . THE INTEREST INCOME HAS BEEN REDUCED FROM CWIP PROJECT DEVELOPMENT COST OF RESPECTIVE PROJECTS. IN THIS REGARD, THE LD. COUNSEL HAS REFERRED THE DECISION OF HON BLE ITAT VIDE ITA NO. 1663/AHD/2014, ITA NO. 1686/AHD/2014 WITH CO 252/AHD/2014 IN THE CAS E OF DCIT VS. ADANI POWER LTD. DATED 28/06/2018 AND CONTENDED THAT ON IDENTICAL ISSUE AND IDENTICAL FACT THE ITAT BENCH IN THE ABOVE CITED CASE HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. WITH THE ASSISTANCE OF LD. REPRESENTATIVES, WE HAVE GONE THRO UGH THE AFORESAID DECISION OF CO - ORDINATE BENCH OF THE ITAT AND CONSIDERED THAT THE IDENTICAL ISSUE ON SIMILAR FACTS HAS BEEN ADJUDICATED IN FAVOUR OF THE ASSESSEE. RELEVANT PART OF THE DECISION IS REPRODUCED AS UNDER: - I.T.A NO. 1642 & 164 3 /AHD/20 18 A.Y. 2013 - 14 & 2014 - 15 PAGE NO SHRI BTW - ATLANTA TRANSFORMERS INDIA PVT. LTD. VS. ACIT 10 23. THAT THE HON'BLE DELHI HIGH CO URT IN THE CASE OF INDIAN OIL PANIPAT POWER CONSORTIUM LTD. (SUPRA), AFTER CONSIDERING THE DECISIONS IN THE CASE OF TUTICORIN ALKALI CHEMICALS & FERTILIZERS LTD. (SUPRA) AND BOKARO STEEL LTD. (SUPRA) AT LENGTH, HELD AT PAGES 258, 259 AND 260 OF REPORT, I.E ., 315 ITR 255, AS UNDER: - 5. IN OUR OPINION THE TRIBUNAL HAS MISCONSTRUED THE RATIO OF THE JUDGMENT OF THE SUPREME COURT IN THE CASE OF TUTICORIN ALKALI CHEMICALS [1997] 227 ITR 172 AND THAT OF BOKARO STEEL LTD. [1999] 236 ITR 315. THE TEST WHICH PERMEAT ES THROUGH THE JUDGMENT OF THE SUPREME COURT IN TUTICORIN ALKALI CHEMICALS [1997] 227 ITR 172 IS THAT IF FUNDS HAVE BEEN BORROWED FOR SETTING UP OF A PLANT AND IF THE FUNDS ARE 'SURPLUS' AND THEN BY VIRTUE OF THAT CIRCUMSTANCE THEY ARE INVESTED IN FIXED DE POSITS THE INCOME EARNED IN THE FORM OF INTEREST WILL BE TAXABLE UNDER THE HEAD 'INCOME FROM OTHER SOURCES'. ON THE OTHER HAND THE RATIO OF THE SUPREME COURT JUDGMENT IN BOKARO STEEL LTD. [1999] 236 ITR 315 TO OUR MIND IS THAT IF INCOME IS EARNED, WHETHER BY WAY OF INTEREST OR IN ANY OTHER MANNER ON FUNDS WHICH ARE OTHERWISE 'INEXTRICABLY LINKED' TO THE SETTING UP OF THE PLANT, SUCH INCOME IS REQUIRED TO BE CAPITALIZED TO BE SET OFF AGAINST PRE - OPERATIVE EXPENSES. 5.1 THE TEST, THEREFORE, TO OUR MIND IS WHE THER THE ACTIVITY WHICH IS TAKEN UP FOR SETTING UP OF THE BUSINESS AND THE FUNDS WHICH ARE GARNERED ARE INEXTRICABLY CONNECTED TO THE SETTING UP OF THE PLANT. THE CLUE IS PERHAPS AVAILABLE IN S. 3 OF THE ACT WHICH STATES THAT FOR NEWLY SET UP BUSINESS THE PREVIOUS YEAR SHALL BE THE PERIOD BEGINNING WITH THE DATE OF SETTING - UP OF THE ITA NO. 2755/AHD/2011 ADANI POWER LTD VS. ACIT AYS 2008 - 09 BUSINESS. THEREFORE, AS PER THE PROVISION OF S. 4 OF THE ACT WHICH IS THE CHARGING SECTION INCOME WHICH ARISES TO AN ASSESSEE FROM THE DATE OF SETTING OF THE BUSINESS BUT PRIOR TO COMMENCEMENT IS CHARGEABLE TO TAX DEPENDING ON WHETHER IT IS OF A REVENUE NATURE OR CAPITAL RECEIPT. THE INCOME OF A NEWLY SET UP BUSINESS, POST THE DATE OF ITS SETTING UP CAN BE TAXED IF IT IS OF A REVENUE NATURE UNDER ANY OF THE HEADS PROVIDED UNDER S. 14 IN CHAPTER IV OF THE ACT. FOR AN INCOME TO BE CLASSIFIED AS INCOME UNDER THE HEAD 'PROFITS AND GAINS OF BUSINESS OR PROFESSION' IT WOULD HAVE TO BE AN ACTIVITY WHICH IS IN SOME MANNER OR FORM CONNECTED WITH BUSINESS. THE WORD 'BUSINESS' IS OF WIDE IMPORT WHICH WOULD ALSO INCLUDE ALL SUCH ACTIVITIES WHICH COALESCE INTO SETTING UP OF THE. BUSINESS. SEE MAZAGAON DOCK LTD. VS. CIT/CEPT (1958) 34 ITR 368 (SC) AND NARAIN SWADESHI WEAVING MILLS VS. C EPT (1954) 26 ITR 765 (SC). ONCE IT IS HELD THAT THE ASSESSEE'S INCOME IS AN INCOME CONNECTED WITH BUSINESS, WHICH WOULD BE SO IN THE PRESENT CASE, IN VIEW OF THE FINDING OF FACT BY THE CIT(A) THAT THE MONIES WHICH WERE INDUCTED INTO THE JOINT VENTURE COMP ANY BY THE JOINT VENTURE PARTNERS WERE PRIMARILY INFUSED TO PURCHASE LAND AND TO DEVELOP INFRASTRUCTURE THEN IT CANNOT BE HELD THAT THE INCOME DERIVED BY PARKING THE FUNDS TEMPORARILY WITH TOKYO MITSUBISHI BANK, WILL RESULT IN THE CHARACTER OF THE FUNDS BE ING CHANGED, IN AS MUCH AS THE INTEREST EARNED FROM THE BANK WOULD HAVE A HUE DIFFERENT THAN THAT OF BUSINESS AND BE BROUGHT TO TAX UNDER THE HEAD 'INCOME FROM OTHER SOURCES'. IT IS WELL - SETTLED THAT AN INCOME RECEIVED BY THE ASSESSEE CAN BE TAXED UNDER TH E HEAD 'INCOME FROM OTHER SOURCES' ONLY IF IT DOES NOT FALL UNDER ANY OTHER HEAD OF INCOME AS PROVIDED IN S. 14 OF THE ACT. THE HEAD 'INCOME FROM OTHER SOURCES' IS A RESIDUARY HEAD OF INCOME. SEE S.G. MERCANTILE CORPORATION (P) LTD. VS. CIT1972 CTR (SC) 8 : (1972) 83 ITR 700 (SC) AND CIT VS. GOVINDA CHOUDHURY & SONS (1994) 116 CTR (SC) 61 : (1993) 203 ITR 881 (SC). 5.2 IT IS CLEAR UPON A PERUSAL OF THE FACTS AS FOUND BY THE AUTHORITIES BELOW THAT THE FUNDS IN THE FORM OF SHARE CAPITAL WERE INFUSED FOR A SP ECIFIC PURPOSE OF ACQUIRING LAND AND THE DEVELOPMENT OF INFRASTRUCTURE. THEREFORE, THE INTEREST EARNED ON FUNDS PRIMARILY BROUGHT FOR INFUSION IN THE BUSINESS COULD NOT HAVE BEEN CLASSIFIED AS INCOME FROM OTHER SOURCES. SINCE THE INCOME WAS EARNED IN A I.T.A NO. 1642 & 164 3 /AHD/20 18 A.Y. 2013 - 14 & 2014 - 15 PAGE NO SHRI BTW - ATLANTA TRANSFORMERS INDIA PVT. LTD. VS. ACIT 11 PER IOD PRIOR TO COMMENCEMENT OF BUSINESS IT WAS IN THE NATURE OF CAPITAL RECEIPT AND HENCE WAS REQUIRED TO BE SET OFF AGAINST PRE - OPERATIVE EXPENSES. IN THE CASE OF TUTICORIN ALKALI CHEMICALS [1997] 227 ITR 172 IT WAS FOUND BY THE AUTHORITIES THAT THE FUNDS A VAILABLE WITH THE ASSESSEE IN THAT CASE WERE 'SURPLUS' AND, THEREFORE, THE SUPREME COURT HELD THAT THE INTEREST EARNED ON SURPLUS FUNDS WOULD HAVE TO BE TREATED AS 'INCOME FROM OTHER SOURCES'. ON THE OTHER HAND IN BOKARO STEEL LTD. [1999] 236 ITR 315 (SC) WHERE THE ASSESSEE HAD EARNED INTEREST ON ADVANCE PAID TO CONTRACTORS DURING PRE - COMMENCEMENT PERIOD WAS FOUND TO BE 'INEXTRICABLY LINKED' TO THE SETTING UP OF THE PLANT OF THE ASSESSEE AND HENCE WAS HELD TO BE A CAPITAL RECEIPT - WHICH WAS PERMITTED TO BE SET OFF AGAINST PRE - OPERATIVE EXPENSES, (UNDERLINED OURS TO SUPPLY EMPHASIS) 24. FROM THE ABOVE, IT IS EVIDENT THAT THE HON'BLE DELHI HIGH COURT HAS CONSIDERED AND INTERPRETED THE DECISIONS OF HON'BLE APEX COURT IN THE CASE OF TUTICORIN ALKALI CHEMICALS & FERTILIZERS LTD. (SUPRA) AS WELL AS BOKARO STEEL LTD. (SUPRA). THE CONCLUSION OF THE DELHI HIGH COURT IS IN FACT THE LAW WHICH EMERGES AS PER THE DECISION OF HON'BLE APEX COURT. THEREFORE, IN OUR OPINION, THE CIT(A) WAS NOT JUSTIFIED IN IGNORING THE DECISI ON OF HON'BLE DELHI HIGH COURT BY SIMPLY MENTIONING THAT THE ISSUE IS COVERED BY THE DECISION OF HON'BLE APEX COURT IN THE CASE OF TUTICORIN ALKALI CHEMICALS & FERTILIZERS LTD. (SUPRA). AFTER CONSIDERING THESE TWO DECISIONS OF THE HON 'BLE APEX COURT AND ALSO SOME OTHER DECISIONS OF THE HON'BLE APEX COURT, THEIR LORDSHIPS OF THE DELHI HIGH COURT ARRIVED AT THE CONCLUSION 'IT IS DEAR UPON A PERUSAL OF THE FACTS AS FOUND BY THE AUTHORITIES BELOW THAT THE FUNDS IN THE FORM OF SHARE CAPITAL WERE INFUSED FOR TH E SPECIFIC PURPOSE OF ACQUIRING LAND AND THE DEVELOPMENT OF INFRASTRUCTURE. THEREFORE, THE INTEREST EARNED ON FUNDS PRIMARILY BROUGHT FOR INFUSION IN THE BUSINESS COULD NOT HAVE BEEN CLASSIFIED AS INCOME FROM OTHER SOURCES. SINCE THE INCOME WAS EARNED IN A PERIOD PRIOR TO COMMENCEMENT OF BUSINESS, IT WAS IN THE NATURE OF CAPITAL RECEIPT AND HENCE WAS REQUIRED TO BE SET OFF AGAINST THE PRE - OPERATIVE EXPENSES.' THAT, THE RATIO OF THE ABOVE FINDING OF THE HON'BLE DELHI HIGH COURT WOULD BE SQUARELY APPLICABLE T O THE FACTS OF THE ASSESSEE'S CASE, BECAUSE ADMITTEDLY IN THE CASE UNDER APPEAL BEFORE US THE SHARE CAPITAL AS WELL AS LOANS WERE RAISED FOR THE SPECIFIC PURPOSE OF SETTING UP OF THE POWER GENERATION PLANTS. THE BUSINESS OF THE ASSESSES HAS NOT BEEN COMME NCED AND THEREFORE, AS PER ABOVE DECISION, THE INTEREST RECEIVED IN THE PERIOD PRIOR TO COMMENCEMENT OF BUSINESS WAS IN THE NATURE OF CAPITAL RECEIPT AND HENCE WAS REQUIRED TO BE SET OFF AGAINST THE PRE - OPERATIVE EXPENSES. THE ASSESSEE HAS ALREADY SET OFF THE INTEREST INCOME AGAINST THE PRE - OPERATIVE EXPENSES WHICH IS TITLED AS 'PROJECT DEVELOPMENT EXPENDITURE'. IN VIEW OF ABOVE, WE ARE OF THE OPINION THAT THE INTEREST INCOME OF RS.1,35,87,158/ - AS WELL AS RS.7,91,51,306/ - WAS A CAPITAL RECEIPT NOT CHARGEAB LE TO TAX DURING THE YEAR UNDER CONSIDERATION. ACCORDINGLY, GROUND NOS. 2 AND 4 OF THE ASSESSEE'S APPEAL ARE ALLOWED.' 17. THERE IS NO DISPARITY ON FACTS. THE ID.CIT(A) HAS SIMPLY FOLLOWED THE ORDER OF THE ID.CIT(A) IN THE ASSESSMENT YEAR 2008 - 09. THEREFOR E, RESPECTFULLY FOLLOWING THE ORDER OF THE IT AT IN THE ASSESSMENT YEAR 2008 - 09, WE REJECT THE GROUND OF APPEAL TAKEN BY THE REVENUE AND ALLOW THE GROUNDS OF APPEAL TAKEN BY THE ASSESSEE. RESPECTFULLY FOLLOWING THE DECISION OF THE CO - ORDINATE BENCH AS CIT ED ON IDENTICAL ISSUE ON SIMILAR FACTS, THE APPEAL OF THE ASSESSEE IS ALLOWED. IN THE LIGHT OF THE ABOVE FACTS AND AFTER CONSIDERING THE V ARIOUS JUDICIAL PRONOUNCEMENTS OF THE HON BLE HIGH COURTS AND CO - ORDINATE BENCHES OF THE ITAT AS CITED ABOVE , WE CONSIDER THAT THE IMPUGNED INTEREST RECEIPT BY THE I.T.A NO. 1642 & 164 3 /AHD/20 18 A.Y. 2013 - 14 & 2014 - 15 PAGE NO SHRI BTW - ATLANTA TRANSFORMERS INDIA PVT. LTD. VS. ACIT 12 ASSESSEE COMPANY IS RELATED TO THE PRIOR PERIOD TO COMMENCEMENT OF BUSINESS WHICH IS IN NATURE OF CAPITAL RECEIPT AND WAS REQUIRED TO BE SET OFF AGAINST PRE - OPERATIVE EXPENSES. THEREFORE, FIRST GROUND OF APPEAL OF THE ASSESSEE FOR TREATING EXPENSES TO THE AMOUNT OF RS. 2 , 33 , 36 , 037/ - AS REVENUE EXPENDITURE IS DISMISSED. HOWEVER, THE ALTERNATIVE GROUND OF APPEAL OF THE ASSESSEE FOR TREATING THE INTEREST INCOME EARNED ON FIXED DEPOSIT PERTAINING TO PRIOR PERIOD COMMENCEMENT OF BUSINESS IS ALLOWED BY TREATING THE IMPUGNED INTEREST INCOME AS CAPITAL RECEIPT WHICH IS ADJUSTED AGAINST PRE - OPERATIVE EXPENSES O F THE ASSESSEE. THEREFORE, THE ALTERNATIVE GROUND OF A PPEAL OF THE ASSESSEE IS ALLOWED. 9 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ITA NO. 1643/AHD/2018 FOR A.Y. 2014 - 15 10 . THIS APPEAL OF THE ASSESSEE IS BASED ON SIMILAR ISSUE AND IDENTICAL FACTS TO THE ITA NO. 1642/AHD/2018 FOR A.Y. 2013 - 14 AS ADJUDICATED ABOVE IN THIS ORDE R. THEREFORE, WITHOUT REITERATING THE FACTS AND FINDINGS AS DISCUSSED ABOVE IN THIS ORDER THE CLAIM OF TREATING EXPENSES OF RS. 1 , 54 , 01 , 064/ - AS REVENUE EXPENSES IS DISMISSED. HOWEVER, THE ALTERNATIVE GROUND OF APPEAL OF THE ASSESSEE FOR TREATING THE INTEREST INCOME EARNED ON FIXED DEPOSIT PERTAINING TO PRIOR PERIOD COMMENCEMENT OF BUSINESS IS ALLOWED AFTER APPLYING THE FINDING ELABORATED IN ADJUDICATING ASSESSEE S APPEAL VIDE ITA NO. 1642/AHD/2018 AS ABOVE IN THIS ORDER BY TREATING THE INTEREST INCOME AS CAPITAL RECEIPT WHI CH IS TO BE A D JU S TED AGAINST PREOPERATIVE EXPENSES OF THE ASSESSEE. THEREFORE, THIS GROUND OF APPEAL OF THE ASSESSE IS PARTLY ALLOWED. I.T.A NO. 1642 & 164 3 /AHD/20 18 A.Y. 2013 - 14 & 2014 - 15 PAGE NO SHRI BTW - ATLANTA TRANSFORMERS INDIA PVT. LTD. VS. ACIT 13 11. THE GROUND NO. 4 OF THE APPEAL PERTAINI NG TO ITA NO. 1642/AHD/2018 & 16 43/AHD/2018 ARE NOT CONTESTED BY THE LD. COUNSEL. THEREFORE, GROUND NO. 4 PERTAINING TO ITA NO. 1642/AHD/2018 & 1643/AHD/2018 ARE DISMISSED. 12 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 1 3 . IN THE COMBINED RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE PARTLY ALLOWED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 06 - 03 - 20 20 SD/ - SD/ - ( SANDEEP GOSAIN ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 06 /03 /2020 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,