Aurangabad Electricals Ltd, Pune V. Deputy Commissioner of Income-tax, Circle - 8, Pune

ITA 2104/PUN/2017

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 2079 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 9 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-06-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 08-09-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: VITTHAL BHOSALE
• Keywords: Depreciation; Business expenditure; Earning of tax free income; Revenue expenditure; Capital expenditure; Rule 8D
• Section: 143(3); 14A; 37(1); 37

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE (THROUGH VIRTUAL COURT) BEFORE SHRI INTURI RAMA RAO, AM AND SHRI S. S. VISWANETHRA RAVI, JM . / ITA NO.2104/PUN/2017 / ASSESSMENT YEAR : 2012-13 AURANGABAD ELECTRICALS LTD., PLOT NO.B-7, MIDC, VILLAGE- MAHALUNGE, TAL- KHED, PUNE-410501. PAN : AACCA2867L ....... / APPELLANT / V/S. DCIT, CIRCLE- 8, PUNE. / RESPONDENT ASSESSEE BY : SHRI SHARAD SHAH REVENUE BY : SHRI VITTHAL BHOSALE / DATE OF HEARING : 11.06.2021 / DATE OF PRONOUNCEMENT : 18.06.2021 / ORDER PER INTURI RAMA RAO, AM: THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)- 6, PUNE (CIT(A) FOR SHORT) DATED 28.03.2017 FOR THE ASSESSMENT YEAR 2012-13. 2. THE APPELLANT RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. THE LD A.O. ERRED IN (AND LD. CIT(A) ERRED IN CONFIRMING) MAKING DISALLOWANCE OF EXPENDITURE OF RS. 87,09,356/- INCURRED ON FAILED IPO (FAILED PUBLIC ISSUE). 1.1) THE LD. CIT(A) ERRED IN CONCLUDING THAT FAILED IPO EXPENDITURE ARE COVERED BY SECTION 35(D)(2) INSTEAD OF SECTION 37 OR SECTION 28/29 OF INCOME TAX ACT, 1961. 1.2) THE LD. CIT(A) ERRED IN CONCLUDING THAT THE EXPENDITURE ON FAILED PUBLIC ISSUE SHOULD BE ALLOWED PROPORTIONATELY. 2 ITA NO.2104/PUN/2017 1.3) THE LD. CIT(A) ERRED IN CONCLUDING THAT THE COMPANY DID NOT HAVE ANY BENEFIT FROM THE SALE OF SHARES BY PE PARTNER (NAMELY BLUE RIVER CAPITAL- LLC) AND THEREFORE EXPENDITURE RELATING TO SUCH SALE ARE NOT ALLOWABLE UNDER SECTION 37. 1.4) THE LD. CIT(A) ERRED IN CONCLUDING THAT HIS PREDECESSOR CIT (A) HAS GIVEN THE ALLOWANCE OF EXPENSES CONSIDERING THE PROPORTIONATE BENEFIT TO COMPANY. 1.5) THE LD. CIT(A) ERRED IN NOT GIVING OPPORTUNITY TO THE ASSESSEE TO REBUT VARIOUS ADVERSE REMARK WHICH ARE NOT COMING OUT OF THE MATTERS BEFORE HIM. 2. THE LEARNED A.O. ERRED IN (AND CIT(A) IN CONFIRMING) ALLOCATING NOTIONALLY THE EXPENDITURE OF RS. 42,62,687/- FOR EARNING EXEMPT INCOME AND CONSEQUENTLY ERRED IN DISALLOWING SUCH EXPENDITURE UNDER SECTION 14A. 2.1) THE LEARNED CIT(A) ERRED IN NOT CONSIDERING THE FOLLOWING FACTS: I) ASSESSEE HAS HUGE NON-INTEREST BEARING FUNDS. II) THE MOST OF THE INVESTMENTS MADE BY THE COMPANY WERE FOR THE BUSINESS PURPOSE/STRATEGIC INVESTMENT AND NOT FOR EARNING EXEMPT INCOME. III) MOST OF THE INVESTMENTS HAVE NOT YIELD ANY EXEMPT INCOME DURING THE YEAR. 3. THE APPELLANT CRAVES ITS RIGHT TO ADD TO OR ALTER THE GROUNDS OF APPEAL AT ANY TIME BEFORE OR DURING THE COURSE OF HEARING OF THE CASE. 3. BRIEFLY, THE FACTS OF THE CASE ARE AS UNDER :- THE APPELLANT IS A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956. IT IS ENGAGED IN THE BUSINESS OF MANUFACTURE OF AUTOMOBILE AND BRAKE SYSTEM COMPONENTS AND GENERATION OF POWER THROUGH WINDMILL. THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2012-13 WAS FILED ON 30.09.2012 DECLARING TOTAL INCOME OF RS.37,29,50,685/- AND THE SAME WAS REVISED ON 27.11.2013 AT A TOTAL INCOME OF RS.36,31,29,840/-. AGAINST THE SAID RETURN OF INCOME, THE ASSESSMENT WAS COMPLETED BY THE DY. COMMISSIONER OF INCOME TAX, CIRCLE-8, PUNE (THE ASSESSING OFFICER) VIDE ORDER DATED 03.03.2015 PASSED U/S 143(3) OF THE INCOME TAX ACT, 1961 (THE ACT) AT A TOTAL INCOME OF RS.37,65,57,863/- AFTER MAKING THE FOLLOWING ADDITIONS :- 3 ITA NO.2104/PUN/2017 (I) DISALLOWANCE OF INITIAL PUBLIC OFFER (IPO) EXPENSES OF RS.88,84,356/- (II) DISALLOWANCE U/S 14A OF THE ACT OF RS.42,62,687/-. 4. DISALLOWANCE OF INITIAL PUBLIC OFFER (IPO) EXPENSES OF RS.88,84,356/- :- DURING THE YEAR UNDER CONSIDERATION, THE APPELLANT COMPANY INCURRED AN EXPENDITURE OF RS.88,84,356/-, THE DETAILS OF WHICH WERE SET OUT BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER VIDE PARA 4. HOWEVER, THE APPELLANT HAD NOT GONE FOR IPO CONSIDERING THE SHARE FROM PREVAILING MARKET CONDITIONS THEN PREVAILING. THE ASSESSING OFFICER WAS OF THE OPINION THAT THE SAID EXPENDITURE IS CAPITAL IN NATURE PLACING RELIANCE ON THE DECISIONS IN THE CASE OF (I) THE BROOK BOND (225 ITR 798) AND (II) PUNJAB STATE INDUSTRIAL DEVELOPMENT CORPORATION (225 ITR 792), ACCORDINGLY, DENIED THE ALLOWANCE OF DEDUCTION AS REVENUE EXPENDITURE. 5. EVEN ON APPEAL BEFORE THE LD. CIT(A), THE SAME CAME TO BE CONFIRMED REJECTING THE CONTENTION OF THE APPELLANT THAT THE ISSUE IS COVERED BY THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. NIMBUS COMMUNICATION LTD. IN ITA NO.4244 OF 2010 DATED 08.12.2011. 6. BEING AGGRIEVED, THE APPELLANT IS BEFORE US IN THE PRESENT APPEAL. 7. IT IS SUBMITTED BEFORE US THAT THE ABORTED IPO EXPENSES IS NOT COVERED BY SECTION 35(D)(2) OF THE ACT BUT THE SAME IS ALLOWABLE AS REVENUE EXPENDITURE U/S 37 OF THE ACT. HE ALSO PLACED RELIANCE ON THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF NIMBUS COMMUNICATION LTD. (SUPRA) WHEREIN THE HONBLE JURISDICTIONAL HIGH COURT FOLLOWING ITS EARLIER 4 ITA NO.2104/PUN/2017 DECISION IN THE CASE OF CIT VS. M/S. ESSAR OIL LIMITED, INCOME TAX APPEAL (L) NO.921 OF 2006 DECIDED ON 16 TH OCTOBER, 2008 ALLOWED THE ABORTED SHARE ISSUE EXPENDITURE AS REVENUE EXPENDITURE U/S 37 OF THE ACT. 8. ON THE OTHER HAND, LD. SR. DR PLACED RELIANCE ON THE ORDERS OF THE LOWER AUTHORITIES. 9. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT APPEAL IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF NIMBUS COMMUNICATION LTD. (SUPRA) WHEREIN THE HONBLE JURISDICTIONAL HIGH COURT FOLLOWING ITS EARLIER DECISION IN THE CASE OF M/S. ESSAR OIL LIMITED (SUPRA) CONFIRMED THE DECISION OF THE TRIBUNAL ALLOWING THE ABORTED IPO EXPENDITURE AS REVENUE EXPENDITURE U/S 37 OF THE ACT. SIMILARLY, THE HONBLE MADRAS HIGH COURT IN THE CASE OF TAMILNADU MAGNESITE LTD. VS. ACIT, 95 TAXMANN.COM 239 HELD THAT THE EXPENDITURE INCURRED FOR SETTING UP OF NEW PROJECT VIZ. CHEMICAL BENEFICIATION PLANT WHICH IS ABANDONED FOLLOWING STATE GOVERNMENT ORDER IS ALLOWABLE AS REVENUE EXPENDITURE BY HOLDING AS FOLLOWS :- 20. TO DECIDE THE SUBSTANTIAL QUESTIONS OF LAW FRAMED FOR CONSIDERATION, WE WOULD HAVE TO APPLY THE PROPER TEST, WHICH WOULD DISTINGUISH CAPITAL AND REVENUE EXPENDITURE. THIS QUESTION CAME UP FOR CONSIDERATION BEFORE THE HON'BLE SUPREME COURT IN EMPIRE JUTE CO. LTD. (REFERRED SUPRA). IT WAS POINTED OUT THAT FROM TIME TO TIME CASES HAVE EVOLVED VARIOUS TESTS FOR DISTINGUISHING BETWEEN CAPITAL AND REVENUE EXPENDITURE, BUT, NO TEST IS PARAMOUNT OR CONCLUSIVE. FURTHER, THERE IS NO ALL-EMBRACING FORMULA, WHICH CAN PROVIDE A READY SOLUTION TO THE PROBLEM; NO TOUCHSTONE HAS BEEN DEVISED. IT WAS POINTED OUT THAT EVERY CASE HAS TO BE DECIDED ON ITS OWN FACTS KEEPING IN MIND THE BROAD PICTURE OF THE WHOLE OPERATION IN RESPECT OF WHICH THE EXPENDITURE HAS BEEN INCURRED. AFTER REFERRING TO THE DECISION OF LORD RADCLIFFE IN CIT V. NCHANGA CONSOLIDATED COPPER MINES LTD. [1965] 58 ITR 241 (PC), IT WAS HELD THAT IT WOULD BE MISLEADING TO SUPPOSE THAT, IN ALL CASES, SECURING A BENEFIT FOR THE BUSINESS WOULD BE PRIMA FACIE CAPITAL EXPENDITURE 'SO LONG AS THE BENEFIT IS NOT SO TRANSITORY AS TO HAVE NO ENDURANCE AT ALL'. 21. FURTHER, IT WAS HELD THAT THERE MAY BE CASES WHERE EXPENDITURE EVEN IF INCURRED FOR OBTAINING ADVANTAGE OF ENDURING BENEFIT, MAY, NONETHELESS, BE ON REVENUE ACCOUNT AND THE TEST OF ENDURING BENEFIT MAY BREAK DOWN. IT WAS POINTED OUT THAT IT IS NOT EVERY ADVANTAGE OF ENDURING NATURE ACQUIRED BY AN 5 ITA NO.2104/PUN/2017 ASSESSEE THAT BRINGS THE CASE WITHIN THE PRINCIPLE LAID DOWN IN THIS TEST. WHAT IS MATERIAL TO CONSIDER IS THE NATURE OF ADVANTAGE IN A COMMERCIAL SENSE AND IT IS ONLY WHERE THE ADVANTAGE IS IN THE CAPITAL FIELD THAT THE EXPENDITURE WOULD BE DISALLOWABLE ON AN APPLICATION OF THIS TEST. 22. FURTHER, IT WAS POINTED OUT THAT IF THE ADVANTAGE CONSISTS MERELY IN FACILITATING THE ASSESSEE'S TRADING OPERATIONS OR ENABLING THE MANAGEMENT AND CONDUCT OF THE ASSESSEE'S BUSINESS TO BE CARRIED ON MORE EFFICIENTLY OR MORE PROFITABLY WHILE LEAVING THE FIXED CAPITAL UNTOUCHED, THE EXPENDITURE WOULD BE ON REVENUE ACCOUNT, EVEN THOUGH THE ADVANTAGE MAY ENDURE FOR AN INDEFINITE FUTURE. THUS, IT WAS HELD THAT THE TEST OF ENDURING BENEFIT IS NOT A CERTAIN OR CONCLUSIVE TEST AND IT CANNOT BE APPLIED BLINDLY AND MECHANICALLY WITHOUT REGARD TO THE PARTICULAR FACTS AND CIRCUMSTANCES OF A GIVEN CASE. 23. FURTHER, IT WAS HELD THAT ANOTHER TEST, WHICH IS OFTEN APPLIED IS THE ONE BASED ON DISTINCTION BETWEEN FIXED AND CIRCULATING CAPITAL. THIS TEST WAS APPLIED BY LORD HALDANE IN THE CASE OF JOHN SMITH & SON V. MOORE 12 TC 266, WHERE THE LEARNED LAW LORD DREW THE DISTINCTION BETWEEN FIXED CAPITAL AND CIRCULATING CAPITAL BY HOLDING THAT FIXED CAPITAL IS WHAT THE OWNER TURNS TO PROFIT BY KEEPING IT IN HIS OWN POSSESSION; CIRCULATING CAPITAL IS WHAT HE MAKES PROFIT OF BY PARTING WITH IT AND LETTING IT CHANGE. 24. BEARING THE ABOVE LEGAL PRINCIPLES IN MIND, WE PROCEED TO EXAMINE THE FACTS OF THE INSTANT CASE. IT IS NOT IN DISPUTE THAT THE CHEMICAL BENEFICIATION PLANT WAS ALREADY ESTABLISHED BY TIDCO AND ON ACCOUNT OF THEIR NOT BEING ABLE TO ACHIEVE THE DESIRED RESULT, THE ASSESSEE WAS INVITED TO TAKE OVER THE PROJECT, AS THE ASSESSEE POSSESSED EXPERTISE IN THE FIELD. THIS IS HOW THE ASSESSEE STEPPED INTO THE PROJECT AND BY TURN OF EVENTS, THE GOVERNMENT GRANTED APPROVAL DURING THE YEAR 1998. 25. AS COULD BE SEEN FROM THE ORDER PASSED BY THE CIT (A), THE ASSESSEE HAD ENTERED INTO AN ARRANGEMENT WITH TIDCO AS WELL AS WITH IDBI AND FIXED THE PROJECT COST WITH A DEBT EQUITY RATIO, WHICH WAS APPROVED BY THE GOVERNMENT OF TAMIL NADU AND THEREAFTER, STEPS WERE TAKEN TO ACQUIRE LAND, IMPORT MACHINERY ETC. IN THE MEANTIME, 12 YEARS HAD PASSED BY AND THE PROJECT HAD NOT TAKEN OFF. THE IDBI HAD WITHDRAWN FROM THE PROJECT, AS IT WAS FOUND TO BE UNVIABLE AND ANOTHER CO-PROMOTER VIZ., M/S. KHALTAN SUPERMAG LIMITED WAS BROUGHT IN AND A JOINT SECTOR COMPANY WAS FORMED WITH THE ASSESSEE SUBJECT TO CERTAIN CONDITIONS. HOWEVER, THE SAID CO-PROMOTER, M/S. KHALTAN SUPERMAG LIMITED EXPRESSED INABILITY TO BE A PART OF THE PROJECT AND AFTER 12 YEARS, THE GOVERNMENT TOOK A DECISION TO SELL THE PROJECT AND CONSEQUENTLY, CANCELLED THE ALLOTMENT OF 47 ACRES OF LAND IN FAVOUR OF THE ASSESSEE. THE ABOVE FACTS CLEARLY DEMONSTRATE THAT THE ASSESSEE THOUGH HAD ENTERED INTO ARRANGEMENT WITH THE BANKS AND CO-PROMOTERS AND TOOK ACTION FOR ACQUISITION OF LAND, IMPORT OF MACHINERIES, ETC., NO NEW VENTURE WAS ESTABLISHED BY THE ASSESSEE. THE VENTURE, WHICH WAS TO BE TAKEN OVER BY THE ASSESSEE AND OPERATED DID NOT FRUCTIFY, NOT ON ACCOUNT OF THE CONDUCT OF THE ASSESSEE, BUT ON ACCOUNT OF THE DECISION OF THE GOVERNMENT OF TAMIL NADU. IN OUR CONSIDERED VIEW, THE DECISION OF THE GOVERNMENT OF TAMIL NADU TO SELL THE PROJECT IS A VERY IMPORTANT FACT, WHICH HAS TO BE BORNE IN MIND TO DECIDE AS TO WHETHER THE EXPENDITURE INCURRED BY THE ASSESSEE WAS CAPITAL OR REVENUE IN NATURE. 26. THE ASSESSING OFFICER FELL IN ERROR IN GOING BY THE FACT THAT THE EXPENDITURE WAS INCURRED FROM THE CAPITAL ACCOUNT FORGETTING THAT THE TEST TO BE APPLIED TO ASCERTAIN AS TO WHETHER THE EXPENDITURE IS REVENUE OR CAPITAL IS NOT BASED ON WHERE THE FUNDS WERE DRAWN FROM. THE BROAD PARAMETERS AND TESTS, WHICH HAVE BEEN LAID DOWN BY VARIOUS DECISIONS ARE THAT THERE SHOULD BE AN ENDURING BENEFIT, WHICH SHOULD ACCRUE TO THE ASSESSEE AND THERE SHOULD BE A CREATION OF A NEW ASSET. IN THE INSTANT CASE, BOTH THESE PARAMETERS REMAIN UNFULFILLED. 6 ITA NO.2104/PUN/2017 27. THE HIGH COURT OF DELHI IN INDO RAMA SYNTHETICS LTD. (SUPRA) HELD THAT IF THE EXPENDITURE IS INCURRED FOR STARTING A NEW BUSINESS, WHICH WAS NOT CARRIED OUT BY THE ASSESSEE EARLIER, THEN SUCH EXPENDITURE WAS HELD TO BE CAPITAL IN NATURE. HOWEVER, IF THE EXPENDITURE INCURRED IS IN RESPECT OF THE SAME BUSINESS, WHICH IS ALREADY CARRIED ON BY THE ASSESSEE, EVEN IF IT IS FOR THE EXPANSION OF THE BUSINESS, VIZ., TO START A NEW UNIT, WHICH IS SAME AS EARLIER BUSINESS AND THERE IS UNITY OF CONTROL AND A COMMON FUND, THEN SUCH AN EXPENSE IS TO BE TREATED AS BUSINESS EXPENDITURE AND IN SUCH A CASE WHETHER IT IS A NEW BUSINESS/ASSET WOULD BECOME A RELEVANT FACTOR. 28. IT IS FURTHER HELD THAT IF THERE IS NO CREATION OF NEW ASSET, THEN THE EXPENDITURE INCURRED WOULD BE REVENUE IN NATURE. HOWEVER, IF THE NEW ASSET COMES INTO EXISTENCE, WHICH IS OF ENDURING BENEFIT, THEN SUCH EXPENDITURE WOULD BE CAPITAL IN NATURE. 29. THE HON'BLE DELHI HIGH COURT TOOK NOTE OF THE DECISION OF THE GAUHATI HIGH COURT IN DY. CIT V. ASSAM ASBESTOS LTD. [2003] 263 ITR 357/132 TAXMAN 808. THE HIGH COURT OF CALCUTTA IN THE CASE OF BINANI CEMENT LTD. (SUPRA), CONSIDERED A CASE WHERE THE TRIBUNAL DISALLOWED THE EXPENDITURE ALLEGEDLY INCURRED BY THE ASSESSEE FOR PREPARING FEASIBILITY STUDY REPORT AND CAPITAL WORK- IN-PROGRESS IN THE EARLIER YEARS BUT WRITTEN OFF DURING THE PREVIOUS YEAR, SINCE THE PROPOSED PROJECT WAS ABANDONED. THE COURT AFFIRMED THE VIEW TAKEN BY THE CIT (A), WHERE IT WAS HELD THAT THE COMPANY CLAIMED AS ALLOWABLE THE EXPENDITURE ON THIS ABANDONED PROJECT. WHILE IT WAS FOUND TO BE UNVIABLE, THE EXPENDITURE ON IT WAS FOR THE PURPOSE OF BUSINESS AND IT WAS NOT CLAIMED OR ALLOWED EARLIER AS BUSINESS EXPENDITURE BECAUSE IT WAS OF CAPITAL NATURE ENTITLED TO DEPRECIATION AFTER COMPLETION AND ON COMMENCEMENT OF ITS USE FOR BUSINESS AND THAT STAGE HAVING NOT REACHED AND NO ASSET HAVING COME INTO EXISTENCE, THE CAPITAL WORK-IN-PROGRESS HAD TO BE WRITTEN OFF AS SUCH. 30. IN THE CASE OF ASIA POWER PROJECTS (P.) LTD. (SUPRA), THE HIGH COURT OF KARNATAKA HELD THAT, IF THE ASSESSEE INCURS A LIABILITY AND WHEN THE CONTRACT UNDER WHICH THAT LIABILITY WAS INCURRED WAS TERMINATED AND WHEN NO AMOUNTS UNDER THE OR IN PURSUANCE OF A CLAIM IS RECEIVABLE, HE IS ENTITLED TO CLAIM THE SAID AMOUNT INCURRED AS EXPENDITURE IN IMPLEMENTING THE CONTRACT AS A SET OFF UNDER SECTION 37(1) READ WITH 28 OF THE INCOME TAX ACT, 1961. 31. INSOFAR AS THE ABANDONED FEATURE FILMS ARE CONSIDERED, A DIVISION BENCH OF THIS COURT IN THE CASE OF TIRUVENGADAM INVESTMENTS (P.) LTD. V. ASSTT. CIT [2016] 95 CCH 0024, REFERRING TO A CIRCULAR ISSUED BY THE CBDT IN CIRCULAR NO.16/2015 DATED 06.10.2015, HELD THAT FILM PRODUCTION EXPENSES OF ABANDONED FILMS SHOULD BE TREATED AS REVENUE EXPENDITURE. THIS DECISION WAS FOLLOWED IN THE CASE OF ASIA POWER PROJECTS P. LTD. (SUPRA). 32. THE LEARNED COUNSEL FOR THE REVENUE STRENUOUSLY CONTENDED THAT A NEW PROJECT HAD EMERGED AND IT IS IMMATERIAL WHETHER MACHINERY WAS REDUCED TO SCRAP AND ORDERED TO BE SOLD AND WHAT IS REQUIRED TO BE SEEN IS THAT THE EXPENDITURE WAS INCURRED FROM THE CAPITAL ACCOUNT. 33. IN OUR CONSIDERED VIEW, RELIANCE PLACED ON THE DECISION OF THIS COURT IN THE CASE OF E.I.D. PARRY (INDIA) LTD. (SUPRA) AND THE KERALA HIGH COURT IN THE CASE OF MALABAR & PIONEER HOSIERY (P.) LTD. (SUPRA) IS OF LITTLE AVAIL, AS IN BOTH CASES, IT WAS FOR A NEW PROJECT, IN CONTRA DISTINCTION WITH THE FACTUAL POSITION IN THE CASE ON HAND. THEREFORE, THOSE DECISIONS ARE FACTUALLY DISTINGUISHABLE. HEAVY RELIANCE WAS PLACED ON THE DECISION OF THIS COURT IN THE CASE OF MASCON TECHNICAL SERVICES LTD. (SUPRA). 34. AT THE FIRST BLUSH IT APPEARS THAT THE DECISION WOULD HELP THE CASE OF THE REVENUE, BUT ON A CLOSER READING IT PROVES OTHERWISE. THE QUESTION WAS WHETHER THE ASSESSEE WAS JUSTIFIED IN SEEKING FOR BIFURCATION OF THE EXPENSES INCURRED INTO CAPITAL AND REVENUE. THE DIVISION BENCH REFERRED TO THE DECISION IN THE CASE 7 ITA NO.2104/PUN/2017 OF BROOKE BOND INDIA LTD. V. CIT [1997] 225 ITR 798/91 TAXMAN 26 (SC). IN THE CASE OF BROOKE BOND INDIA LTD. (SUPRA), IT WAS HELD THAT EXPENDITURE, IN CONNECTION WITH THE ADDITIONAL ISSUE OF SHARES, PAID TO THE REGISTRAR OF COMPANIES BY WAY OF FILING FEE AND HENCE, HAS NO APPLICATION. THE DIVISION BENCH HELD THAT THE DECISION IN THE CASE OF BROOKE BOND INDIA LTD. (SUPRA) WOULD HAVE NO APPLICATION TO THE FACTS OF THE CASE, AS THE EXPENDITURE INCURRED BY THE ASSESSEE WERE SHOWN IN THE BOOKS OF ACCOUNTS AS TOWARDS ISSUE EXPENSES INCURRED DURING THE YEAR AND THEY FOUND THERE WAS NO JUSTIFIABLE GROUND TO DISSECT ONE PART OF THE EXPENDITURE AS REVENUE EXPENDITURE AND ANOTHER PART AS CAPITAL EXPENDITURE. AS POINTED OUT BY THE HON'BLE SUPREME COURT IN EMPIRE JUTE CO. LTD. (SUPRA), WE CANNOT TAKE A DECISION SANS FACTS AND THE FACTUAL POSITION AS SET OUT IN THE PRECEDING PARAGRAPH WOULD CLEARLY SHOW THAT THE ABANDONED PROJECT WAS NOT A NEW ONE AND IT WAS A DECISION TAKEN BY THE GOVERNMENT AFTER ABOUT 12 YEARS AFTER THE PETITIONER WAS INVITED TO TAKE OVER THE PROJECT, WHICH WAS ALREADY IN EXISTENCE, AS THEY WERE AN EXPERT IN THE SAME LINE OF BUSINESS. THEREFORE, ON FACTS, WE FIND THAT THE CIT (A) WAS PERFECTLY RIGHT IN DELETING THE ADDITION AND HOLDING THAT THE EXPENDITURE WAS REVENUE NOT CAPITAL EXPENDITURE. WE MAY POINT OUT THAT THE DECISION IN THE CASE OF IDEAL CELLULURA LTD. (SUPRA) WAS ALSO A CASE WHERE THE EXPENDITURE WAS INCURRED TO BRING INTO EXISTENCE A NEW ASSET, WHICH IS NOT SO IN THE CASE ON HAND. THEREFORE, THE SAID DECISION IS ALSO DISTINGUISHABLE ON FACTS. 10. IT CAN BE NOTICED THAT THE HONBLE MADRAS HIGH COURT ALSO PLACED RELIANCE ON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. IDEA CELLULAR LTD., 76 TAXMANN.COM 77. IT IS ADMITTED FACT IN THE PRESENT CASE THAT AS RESULT OF SUBJECT EXPENDITURE, NO NEW ASSET HAD COME INTO EXISTENCE NOR HAD ANY BENEFIT OF ENDURING NATURE ACCRUED. THEREFORE, RATIO OF ABOVE DECISION IS SQUARELY APPLICABLE TO THE FACTS OF PRESENT CASE. ACCORDINGLY, WE DIRECT ASSESSING OFFICER TO ALLOW THE EXPENDITURE INCURRED ON ABANDONED IPO AS REVENUE EXPENDITURE. ACCORDINGLY, THIS GROUND IS ALLOWED. 11. DISALLOWANCE U/S 14A OF THE ACT OF RS.42,62,687/- :- THE ASSESSING OFFICER MADE AN ADDITION OF RS.42,62,687/- U/S 14A OF THE ACT REJECTING THE CONTENTION OF THE APPELLANT THAT NO INTEREST BEARING FUNDS WERE UTILIZED FOR THE PURPOSE OF MAKING ANY INVESTMENT WHICH YIELDED THE EXEMPT INCOME. IT MUST BE NOTED THAT THE MAJOR INVESTMENT IS MADE IN A GROUP COMPANY VIZ. M/S. OMR BAGLA AUTOMOTIVE SYSTEMS (I) LTD. AMOUNTING TO RS.16,35,50,000/- IN THE YEAR 2007. 8 ITA NO.2104/PUN/2017 12. BEING AGGRIEVED, AN APPEAL WAS PREFERRED BEFORE THE LD. CIT(A) AGAINST THE ORDER OF THE ASSESSING OFFICER, WHO VIDE HIS IMPUGNED ORDER UPHELD THE ADDITION MADE BY THE ASSESSING OFFICER FOLLOWING HIS EARLIER DECISION FOR THE ASSESSMENT YEARS 2009-10 TO 2011-12 IN APPELLANTS OWN CASE. 13. BEING AGGRIEVED, THE APPELLANT IS BEFORE US IN THE PRESENT APPEAL. 14. IT IS SUBMITTED THAT THE LD. CIT(A) HAD CONSIDERED THE ORDER OF THE LD. CIT(A) PASSED AGAINST THE ORIGINAL ASSESSMENT FOR THE ASSESSMENT YEARS 2009- 10 TO 2011-12. ON FURTHER APPEAL BEFORE THE TRIBUNAL, THE ISSUE WAS SET- ASIDE TO THE ASSESSING OFFICER. IN THE CONSEQUENTIAL THE ORDER PASSED TO TRIBUNAL ORDER, THE ASSESSING OFFICER HAD REITERATED THE ADDITION. HOWEVER, IN APPEAL AGAINST THE CONSEQUENTIAL ORDER, THE LD. CIT(A) CONSIDERING THE FINANCIAL POSITION IN THE YEAR OF THE INVESTMENT I.E. ASSESSMENT YEAR 2007-08 GAVE A CATEGORICAL FINDING THAT NO BORROWED FUNDS WERE UTILIZED FOR THE PURPOSE OF MAKING INVESTMENT, THE ADDITION CAME TO BE DELETED FOR THE ASSESSMENT YEARS 2008-09 TO 2011-12. HE ALSO DRAWN ATTENTION TO THE ORDER OF THE LD. CIT(A) WHICH IS PLACED AT PAGE NO.121 TO 133 OF THE PAPER BOOK. HE ALSO TAKEN US THROUGH THE RELEVANT PARAGRAPHS 4.5 OF THE ORDER OF THE LD. CIT(A) WHICH IS PLACED AT PAGE NO.129 TO 130 OF THE PAPER BOOK. THUS, HE SUBMITTED THAT IN THE YEAR OF INVESTMENT, NO BORROWED FUNDS WERE UTILIZED FOR THE PURPOSE OF MAKING INVESTMENT IN M/S. OMR BAGLA AUTOMOTIVE SYSTEMS (I) LTD.. THUS, NO ADDITION IS WARRANTED ON ACCOUNT OF INTEREST EXPENDITURE UNDER CLAUSE (II) OF SUB SECTION (2) OF RULE 8D. 15. AS REGARDS, TO THE ADDITION ON ACCOUNT OF INDIRECT EXPENDITURE, HE SUBMITTED THAT THE ISSUE MAY BE REMANDED TO ASSESSING OFFICER WITH A DIRECTION TO RESTRICT THE AMOUNT OF DISALLOWANCE U/S 14A OF THE ACT TO LOWER OF 9 ITA NO.2104/PUN/2017 (I) THE EXTENT OF EXEMPT INCOME EARNED AND (II) 0.5% OF THE AVERAGE VALUE OF INVESTMENTS, WHICH YIELDED THE EXEMPT INCOME. 16. ON THE OTHER HAND, LD. SR. DR PLACED RELIANCE ON THE ORDERS OF THE LOWER AUTHORITIES. 17. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE PRESENT ISSUE RELATES TO THE DISALLOWANCE U/S 14A OF THE ACT. THE CONTENTION OF THE APPELLANT THAT NO DISALLOWANCE OF INTEREST IS WARRANTED IN THE YEAR UNDER CONSIDERATION FOLLOWING THE FINDING OF THE LD. CIT(A) FOR EARLIER FACTS THAT NO INTEREST BEARING FUNDS WERE UTILIZED FOR THE PURPOSE OF MAKING THE INVESTMENT MERITS ACCEPTANCE. THE RELEVANT FINDING OF THE LD. CIT(A) IS AS UNDER :- 4.5 ON AN EXAMINATION THIS BANK ACCOUNT, I FIND THAT THIS IS CURRENT ACCOUNT AND NOT AN INTEREST BEARING ACCOUNT. I FURTHER FIND THAT ON THE DATES OF PAYMENT MADE TO ASSOCIATED BRAKES LTD, THE FIRST ONE BEING ON 20/9/2007 OF RS.54,35,000, THE CURRENT ACCOUNT HAD A POSITIVE BALANCE MEANING THAT IT WAS NOT OVERDRAWN. SIMILAR, IS THE CASE WITH THE NEXT PAYMENT OF RS.2,17,40,000 ON 4/11/2007 AS ALSO THE SUBSEQUENT PAYMENTS ON 6/11/2007 AND 14/11/2007. IT IS EVIDENT ON FACTS THEREFORE, THAT THE INVESTMENT IN ASSOCIATED BRAKES LTD (SUBSEQUENTLY CALLED OMR BAGLA), WAS SOURCED OUT OF A CURRENT ACCOUNT WHICH ALWAYS HAD A POSITIVE BALANCE. IT IS TO BE FURTHER NOTED THAT THE MONEY RECEIVED AS PART OF THE BTA DTD.27/10/2007 (FOR SALE OF PLANT 8 BY THE ASSESSEE TO ASSOCIATED BRAKES LTD), WAS ALSO CREDITED INTO THE SAME CURRENT ACCOUNT WITH AXIS BANK. THE TRANSACTIONS FROM THE BANK ACCOUNT HAVE BEEN EXTRACTED IN THE FORM OF TABLE SUBMITTED BY THE ASSESSEE ABOVE. IT IS THEREFORE EVIDENT ON FACTS THAT THE ENTIRE STRATEGIC INVESTMENT IN OMR BAGLA HAS BEEN SOURCED OUT OF THE SALE CONSIDERATION FOR PLANT 8 AND IS THEREFORE SOURCED OUT OF THE OWN FUNDS OF THE ASSESSEE. ON THESE FACTS, IT CANNOT BE HELD THAT INTEREST BEARING FUNDS HAVE BEEN DIVERTED FOR THIS STRATEGIC INVESTMENT. ON A PERUSAL OF THE ASSESSMENT ORDER, I FIND THAT THE AO HAS MIXED UP THE DATES HOLDING THE INVESTMENT TO BE PRIOR TO THE SALE, WHEN THE FACTS INDICATE THE EXACT OPPOSITE. THE AO HAS ALSO ERRONEOUSLY HELD THAT THE ACCOUNT IS A CASH CREDIT ACCOUNT, WHEN IN FACT IT IS A CURRENT ACCOUNT. I AM THEREFORE OF THE VIEW THAT THE FACTS EMPHATICALLY INDICATE THAT NO PART OF THE STRATEGIC INVESTMENT IN OMR BAGLA IS SOURCED FROM BORROWED FUNDS. THERE IS NO CAUSE FOR ANY DISALLOWANCE OF INTEREST UNDER RULE 8D(2)(II) ON THIS COUNT. THE REST OF THE INVESTMENT APART FROM RS. 16.35 CRORES IS MINISCULE COMPARED TO THE OTHER FREE FUNDS OF THE ASSESSEE AS HAS BEEN DISCUSSED IN THE A.Y. 07-08. I AM THEREFORE OF THE VIEW THAT NO INTEREST BEARING FUNDS HAVE BEEN DIVERTED TO EITHER THE STRATEGIC INVESTMENT OR TO THE OTHER SUNDRY INVESTMENT YIELDING TAX FREE INCOME. ON THESE FACTS, THE DISALLOWANCE COMPUTED UNDER R- 8D(2)(II) IS DELETED FOR THE A.YS 08-09 TO 11-12. 10 ITA NO.2104/PUN/2017 THE ABOVE FINDINGS OF FACT RETURNED BY CIT(A) REMAIN UNDISTURBED TILL DATE. THEREFORE, WE DIRECT THE ASSESSING OFFICER NOT TO MAKE ANY ADDITION ON ACCOUNT OF INTEREST EXPENDITURE UNDER RULE 8D OF THE INCOME TAX RULES, 1962 (THE RULES). 18. AS REGARDS TO INDIRECT EXPENSES INCURRED FOR EARNING EXEMPT INCOME, THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT AMOUNT OF DISALLOWANCE SHOULD BE RESTRICTED LOWER OF THE EXEMPT INCOME AND 0.5% OF AVERAGE VALUE OF INVESTMENT, WHICH YIELDED THE EXEMPT INCOME / MERITS ACCEPTANCE. IT IS VERY WELL SETTLED POSITION OF LAW THAT THE AMOUNT OF DISALLOWANCE U/S 14A CANNOT EXCEED THE EXEMPT INCOME. RELIANCE IN THIS REGARD CAN BE PLACED ON THE FOLLOWING DECISIONS : (I) PRINCIPAL COMMISSIONER OF INCOME-TAX-2 VS. CARAF BUILDERS & CONSTRUCTIONS (P.) LTD., [2019] 112 TAXMANN.COM 322 (SC) - (SLP DISMISSED AGAINST HIGH COURT RULING THAT DISALLOWANCE UNDER SECTION 14A CANNOT EXCEED EXEMPT INCOME OF RELEVANT YEAR); (II) PRAGATHI KRISHNA GRAMIN BANK VS. JOINT COMMISSIONER OF INCOME-TAX, [2018] 95 TAXMANN.COM 41 (KARNATAKA); (III) PCIT VS. RELIANCE PORTS AND TERMINALS LTD., 114 TAXMANN.COM 529 (BOMBAY); (IV) PCIT VS. STATE BANK OF PATIALA, 393 ITR 476, AND, (V) PCIT VS. ENVESTOR VENTURES LTD., 431 ITR 221. (VI) NIRVED TRADERS PVT. LTD., VS. DCIT 421 ITR 142 (BOM). (VII) PR.CIT VS. AJIT RAMAKANT PHATARPEKAR 429 ITR 319 (BOM). 11 ITA NO.2104/PUN/2017 19. IT IS ALSO WELL SETTLED POSITION OF LAW THAT WHILE COMPUTING THE AMOUNT OF DISALLOWANCE UNDER CLAUSE (III) OF RULE 8D(2) OF THE RULES, THE AVERAGE VALUE OF INVESTMENTS WHICH YIELDED THE EXEMPT INCOME ALONE TO BE CONSIDERED FOR THE PURPOSE OF ARRIVING AT AVERAGE VALUE OF INVESTMENT AS ENVISAGED THEREIN AND RELIANCE IN THIS REGARD CAN BE PLACED ON THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF JOINT INVESTMENTS PVT. LTD. VS. CIT, 374 ITR 694 (DELHI), THE DECISIONS OF HONBLE MADRAS HIGH COURT IN THE CASES OF ACB INDIA LTD. VS. ASSISTANT COMMISSIONER OF INCOME TAX, MARG LTD. VS. CIT, 318 CTR (MAD.) 148 AND CIT VS. SHRIRAM OWNERSHIP TRUST 318 CTR (MAD.) 233 AND ALSO BY THE DECISION OF HONBLE KARANATAKA HIGH COURT IN THE CASE OF PRAGATHI KRISHNA GRAMIN BANK VS. JT. CIT, 95 TAXMAN.COM 41 (KAR). THEREFORE, THIS GROUND OF APPEAL IS REMITTED TO THE FILE OF THE ASSESSING OFFICER TO CALCULATE THE AMOUNT OF DISALLOWANCE UNDER CLAUSE (III) OF RULE 8D(2) ON THE ABOVE LINES INDICATED ABOVE. THUS, THIS GROUND OF APPEAL IS PARTLY ALLOWED. 20. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 18 TH DAY OF JUNE, 2021. SD/- SD/- (S. S. VISWANETHRA RAVI) (INTURI RAMA RAO) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; / DATED : 18 TH JUNE, 2021. SUJEET 12 ITA NO.2104/PUN/2017 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A)-6, PUNE. 4. THE PR. CIT-5, PUNE. 5 . , , , / DR, ITAT, A BENCH, PUNE. 6. / GUARD FILE. / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE.