Shekhavati Investments and Traders Limited , Kolkata V. DCIT, Circle - 6(1), Kolkata , Kolkata

ITA 1663/KOL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5318 (ITAT-KOLKATA)
• Duration Of Justice: 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-05-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 02-08-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SHANKAR HALDER
• Keywords: Revised return; Rule 8D
• Section: 143(3); 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENC H KOLKATA BEFORE SHRI S.S. GODARA, JM &DR. A.L.SAINI, AM ./ITA NO.1663/KOL/2018 ( / ASSESSMENT YEAR: 2014-15) SHEKHAVATI INVESTMENTS AND TRADERS LTD. 9/1, R.N. MUKHERJEE ROAD, 13 TH FLOOR, KOLKATA-700001. VS. DCIT, CIRCLE-6(1), KOLKATA ./ ./PAN/GIR NO.: AAECS 2321 P (ASSESSEE) .. (REVENUE) ASSESSEE BY : NONE. RESPONDENT BY : SHRI SHANKAR HALDER, JCIT, SR. DR / DATE OF HEARING : 16/04/2019 /DATE OF PRONOUNCEMENT : 15/05/2019 / O R D E R PER DR. A. L. SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PER TAINING TO ASSESSMENT YEAR 2014-15 IS DIRECTED AGAINST THE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APPEAL)-2, KOLKATA, WHICH IN TURN ARISES OUT OF AN ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME TAX ACT , 1961 (IN SHORT THE ACT) DATED 12.05.2016. 2. THE SOLITARY GRIEVANCE OF THE ASSESSEE IN THIS A PPEAL IS THAT THE ASSESSEE CLAIMED BY FILING LETTER DATED 29.04.2016, THAT FOR THE PUR POSE OF DISALLOWANCE UNDER RULE SHEKHAVATI INVESTMENTS AND TRADERS LTD. ITA NO.1663/KOL/2018 ASSESSMENT YEAR:2014-15 P PP PA AA AG GG GE EE E | || | 2 22 2 8D(2)(III) VIDE SEC. 14A, ONLY DIVIDEND BEARING SHA RES AND SECURITIES SHOULD BE CONSIDERED. 3. BRIEF FACTS QUA THE ISSUE ARE THAT THE ASSESSEE IN ITS LETTER DATED 29.04.2016 HAS CLAIMED THAT NO DISALLOWANCE U/S 14A READ WITH RULE 8D SHOULD BE MADE IN RELATION TO: I) INVESTMENT ON WHICH NO DIVIDEND INCOME WAS RECEI VED DURING THE YEAR. II) STRATEGIC INVESTMENT MADE IN GROUP COMPANIES NO T FOR PURPOSE OF EARNING DIVIDEND INCOME. THE ASSESSEE HAS CLAIMED THAT THOUGH IN THE RETURN FILED BY IT, AN AMOUNT OF RS. 62,49,109/- WAS NOT CLAIMED U/S 14A READ WITH RULE 8D, ACTUAL DISALLOWANCE SHOULD BE ASSESSED AS RS. 26,00,022/-. SINCE THE AS SESSEE DID NOT FILE A REVISE RETURN FOR ITS CLAIM, THE CLAIM IS REJECTED FOLLOW ING THE SUPREME COURT DECISION IN GOETZE (INDIA) LTD. 284 ITR 323. 4. AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A) WHO HAS DISMISSED T HE APPEAL OF THE ASSESSEE OBSERVING THE FOLLOWING: I HAVE CONSIDERED THE GROUNDS OF APPEAL, STATEMENT OF FACTS AND SUBMISSION OF THE AUTHORIZED REPRESENTATIVE OF THE APPELLATE COMP ANY AS WELL AS THE ASSESSMENT ORDER FRAMED IN THE LIGHT OF THE MATERIALS AVAILABL E ON RECORD BEFORE THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS. I AGREE WITH THE A.O. THAT SINCE NO REVISED RETURN WAS FILED BY THE APPELLANT COMPANY S O THE CLAIM CANNOT BE ALLOWED. IN VIEW OF THE ABOVE, THE ORDER OF THE A.O. IS UPHE LD. THIS GROUNDS OF APPEAL IS DISMISSED. 5. AGGRIEVED BY THE ORDER OF LD. CIT(A), THE ASSESS EE IS IN APPEAL BEFORE US. 6. AT THE TIME OF HEARING NONE APPEARED ON BEHALF OF ASSESSEE IN SPITE OF ISSUANCE OF NOTICE FOR HEARING MORE THAN ONE OCCASION AND LD . DEPARTMENTAL REPRESENTATIVE(DR), WAS PRESENT FOR THE APPELLANT R EVENUE. IN THE ABSENCE OF ANY APPEARANCE BY THE ASSESSEE, THE APPEAL IS BEING DIS POSED OF EX PARTE QUA THE SHEKHAVATI INVESTMENTS AND TRADERS LTD. ITA NO.1663/KOL/2018 ASSESSMENT YEAR:2014-15 P PP PA AA AG GG GE EE E | || | 3 33 3 ASSESSEE, AFTER HEARING LD. DR FOR THE REVENUE ON M ERITS IN TERMS OF RULE 24 OF THE INCOME TAX APPELLATE, TRIBUNAL, RULES, 1963. 7. AFTER HEARING THE LD. DR FOR THE REVENUE, WE NOT E THAT THE ASSESSEE DID NOT FILE REVISED RETURN TO CLAIM THAT NO DISALLOWANCE U/S 14 A READ WITH RULE 8D SHOULD BE MADE. HOWEVER, THE ASSESSEE HAS CLAIMED BY SUBMITTI NG THE LETTER TO THE ASSESSING OFFICER AND THE ASSESSING OFFICER COULD NOT ENTERTA IN THE CLAIM AS IT WAS NOT EMANATING FROM THE RETURN OF INCOME FILED BY THE AS SESSEE. WE NOTE THAT THE ASSESSEE MAY RAISE NEW GROUNDS (FOR THE ISSUE WHICH WAS NOT ENTERTAINED BY THE ASSESSING OFFICER) DURING THE APPELLATE PROCEEDINGS OR BEFORE THE TRIBUNAL. WE NOTE AS PER THE JUDGMENT OF THE HONBLE SUPREME COU RT IN GOETZ (INDIA) LTD. 284 ITR 323 THE ASSESSING OFFICER MAY ADMIT A NEW CLAI M PROVIDED THE ASSESSEES CLAIM IT BY FILING REVISED RETURN OF INCOME AND AS PER THE JUDGEMENT OF HONBLE SUPREME COURT IN GOETZ (INDIA) LTD. SUPRA, LD. CIT( A) AND TRIBUNAL MAY ADMIT THE ADDITIONAL CLAIM/GROUND. 8. WE WANT TO MAKE IT CLEAR THAT THE DECISION OF CO -ORDINATE BENCH OF ITAT, KOLKATA IN REI AGRO LTD. VS. DCIT 144 ITD 141 (KOL- TRIB) WHEREIN IT WAS HELD THAT IT IS ONLY INVESTMENT WHICH YIELDS DIVIDEND DU RING THE PREVIOUS YEAR THAT HAS TO BE CONSIDERED WHILE ADJUDICATING THE AVERAGE VAL UE OF INVESTMENT FOR THE PURPOSE OF RULE 8D(2)(II) AND 8D(2)(III) OF IT RULE S. THE AFORESAID VIEW OF TRIBUNAL HAS BEEN AFFIRMED AS CORRECT BY THE HONB LE CALCUTTA HIGH COURT IN GA NO. 3581 OF 2013 IN THE APPEAL AGAINST THE ORDER OF THE TRIBUNAL IN THE CASE OF REI AGRO LTD. SUPRA. IN ADDITION TO THIS, WE NOTE THAT IF THE ASSESSEE HAS ITS OWN FUNDS AND RESERVE WHICH IS MORE THAN INVESTMENTS MADE BY THE ASSESSEE THEN NO DISALLOWANCE IS ATTRACTED U/S 14A READ WITH RULE 8D (2)(II) OF THE IT RULES, FOR THAT WE RELY ON THE JUDGMENT OF HONBLE BOMBAY HIGH COUR T IN THE CASE OF HDFC BANK LTD. VS DCIT 383 ITR 529 (BOM). THEREFORE WE D IRECT THE ASSESSING OFFICER TO COMPUTE THE DISALLOWANCE AFTER TAKING INTO ACCOU NT THE AFORESAID JUDICIAL PRECEDENTS NARRATED ABOVE. THEREFORE, STATISTICAL P URPOSES THE APPEAL OF THE ASSESSEE IS TREATED TO BE ALLOWED. SHEKHAVATI INVESTMENTS AND TRADERS LTD. ITA NO.1663/KOL/2018 ASSESSMENT YEAR:2014-15 P PP PA AA AG GG GE EE E | || | 4 44 4 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES IN ABOVE TERMS. ORDER PRONOUNCED IN THE COURT ON 15.05. 2019 SD/- ( S.S.GODARA ) SD/- (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA; / DATE: 15/05/2019 ( SB, SR.PS ) COPY OF THE ORDER FORWARDED TO: 1. SHEKHAVATI INVESTMENTS AND TRADERS LTD. 2. DCIT, CIRCLE-6(1), KOLKATA 3. C.I.T(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 6. GUARD FILE. TRUE COPY BY ORDER ASSIST ANT REGISTRAR ITAT, KOLKA TA BENCHES