DCIT 2(1)(1), MUMBAI V. DSP INVESTMENT P.LTD, MUMBAI

ITA 2566/MUM/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 3728 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-08-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2012-2013
• Appeal Filed On: 10-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H N SINGH
• Section: 142(1); 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI SANDEEP GOSAIN , JM ITA NO. 2566/ MUM/20 17 ( ASSESSMENT YEAR : 2012 - 13 ) DCIT 2(1)(1) R.NO.561, 5 TH FLOOR AAYAKAR BHAVAN M.K.ROAD, MUMBAI 400 020 VS. M/S. DSP INVESTMENT PVT. LTD., 11 TH FLOOR, MAFATLAL CENTRE, NARIMAN POINT, MUMBAI 400 021 PAN/GIR NO. AAACB1574H APPELLANT ) .. RESPONDENT ) REVENUE BY SHRI H N SINGH ASSESSEE BY SHRI MADHUR AGARWAL DATE OF HEARING 08/08 /201 8 DATE OF PRONOUNCEMENT 13 / 08 /201 8 / O R D E R PER R.C.SHARMA (A.M) : THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A) - 3, MUMBAI DATED 18/01/2017 FOR A.Y.2012 - 13 IN THE MATTER OF ORDER PASSED U/S.143(3) OF THE IT ACT. 2. IN THIS APPEAL, REVENUE IS AGGRIEVED FOR DELETING THE PART OF THE DISALLOWANCE MADE U/S.14A R.W.R. 8D OF THE IT ACT. 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE E - F ILED ITS RETURN OF INCOME ON 28/ 09 / 2012 DECLARING A TOTAL INCOME OF RS.4,65,77,29O/ - UNDER ITA NO. 2566/MUM/2017 M/S. DSP INVESTMENT PVT. LTD., 2 NORMAL PROVISIONS AND RS.13,22,33,2 9 8/ - U/S.115JB . THE CASE WAS SELECTED FOR SCRUT INY. NOTICE U/S 143(2) DATED 14/ 08 / 2013 WAS ISSUED AND SERVED ON THE ASSESSEE . SUBSEQUENTLY, NOTICE U/S 142(1) WAS ISSUED AND SERVED UPON THE ASSESSEE BY THE ASSESSING OFFICER. THE ASSESSEE COMPANY IS ENGAGED IN THE BUSINESS OF INVESTMENT. THE ASSESSEE COMPANY IS NON - BANKING FINANCE COMPANY REGISTERED WITH THE RESERVE BANK OF INDIA. THE ASSESSING OFFICER WHILE PASS ING THE ASSESSMENT ORDER, AN AMOUNT OF RS. 1,59,19,891 / - IN RESPECT OF DISALLOWANCE U/S 14A WAS ADDED TO THE TOTAL INCOME OF THE APPELLANT. THE TOTAL INCOME OF THE APPELLANT WAS CALCULATED AT RS.6,24,9 7,180/ - 5. BY THE IMPUGNED ORDER CIT(A) RESTRICTED THE D ISALLOWANCE TO THE EXTENT OF RS.73,95,520/ - UNDER RULE 8D2(III) AND RS.143,046/ - UNDER RULE 8D2( I) A FTER FOLLOWING THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE A.Y.2008 - 09, 2009 - 10 AND 2010 - 11. PRECISE OBSERVATION OF CIT(A) WAS AS UNDER: - 6.2 THE SIMILAR ISSUE REACHED UP TO THE ITAT MUMBAI FOR AY 2008 - 09 ITA NO. 62I4/MUM/20II, 2009 - 10 IN ITA NO. 6776/MUM/2012, 2010 - 11 IN ITA NO. 7I37/MUM/20I3 AND 2011 - 12 IN ITA NO. 5468/MUM/2OI4, WHEREIN THE HON'BLE ITAT HAS HELD THAT 'G. THE FACTS OF THE ASSESSEE CASE BEING MATERIALLY SAME TO DECISION OF THE TRIBUNAL IN THE CASE OF SISTER CONCERN, WE RESPECTFULLY FOLLOWING THE ORDER OF CO - ORDINATE BENCH OF THE TRIBUNAL SET ASIDE THE ORDER OF THE CIT(A) BY RESTRICTING THE DISALLOWANCE U/S 14A READ WITH RULE 8D TO RS. 9,00,9077 - AS VOLUNTARILY MADE BY THE ASSESSEE AND A CCORDING THE APPEAL OF THE ASSESSEE IS DISALLOWED. ITA NO. 2566/MUM/2017 M/S. DSP INVESTMENT PVT. LTD., 3 10. AS REGARDS THE OTHER APPEALS FILED BY THE ASSESSEE VIDE ITA NO. 6776/MUM/2012 AY 2009 - 10 ITA NO. 7I37/MUM/2OI3 AY 2010 - 12 AND ITA NO. 5648/MUM/2O14 AY 2011 - 12, THE ISSUE RAISED IN THE VARIOUS GROUNDS ARE IDENTICAL TO AS DECIDED BY US SUPRA IN ITA NO. 62J4/MUM/2OH, AY2008 - 09, THEREFORE OUR FINDINGS IN ITA NO. 6214/MUM/2O11 AY 2008 - 09 WOULD, MUTATIS MUTANDIS APPLY TO THESE APPEALS AS WELL AND ACCORDINGLY THE APPEALS OF THE ASSESSEE STAND ALLOWED. SINCE W E HAVE ALLOWED THE APPEALS OF THE ASSESSEE FOR AY 2009 - 10, 2010 - 11 AND 2011 - 12, THE CROSS APPEALS BY THE REVENUE BECOMES INFRUCTUOUS AND ACCORDINGLY DISMISSED AS INFRUCTUOUS. 11. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE ALLOWED AND THAT OF REVENUE S TAND DISMISSED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 19TH DEC, 2016.' 6.3 IN VIEW OF THE ABOVE FACTS AND RESPECTFULLY FOLLOWING THE ORDER OF THE HON'BLE TAT IN THE APPELLANT'S OWN CASE FOR THE AY 2009 - 10, 2010 - 11 AND 2011 - 12, IT IS FAIR T O RE STRICT THE DISALLOWANCE WHICH WAS VOLUNTARILY MADE BY THE APPELLANT TO THE EXTENT OF RS. 13,046 / - UNDER RULE 8D (2)(I) IT RULES, 1962 AND RS. 73,95,520/ - U/S 14A R.W.R. 8D (2)(III) IT RULES, 1962 RESPECTIVELY. IN VIEW OF THE ABOVE GROUNDS NO. 1, 2 AND 5 ARE PARTLY ALLOWED. 6. AGAINST THE ABOVE ORDER OF CIT(A), REVENUE IS IN FURTHER APPEAL BEFORE US. 7. LEARNED AR SHRI MADHUR AGARWAL APPEARING ON BEHALF OF ASSESSEE PLACED ON RECORD THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE DATED 19/12/2016 AND CO NTENDED THAT UNDER SIMILAR FACTS AND CIRCUMSTANCES, THE TRIBUNAL HAVE RESTRICTED THE PROPORTIONATE DISALLOWANCE UNDER RULE 8D2(III). 8. ON THE OTHER HAND, LEARNED DR RELIED ON THE ORDER OF THE LOWER AUTHORITIES. 9. WE HAVE CONSIDERED RIVAL CONTENTIONS AND CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FOUND THAT THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE A.Y.2008 - 09, 2009 - 10 AND 2010 - 11 HAVE ITA NO. 2566/MUM/2017 M/S. DSP INVESTMENT PVT. LTD., 4 DEALT WITH SIMILAR ISSUE AND RESTRICTED PROPORTIONATE DISALLOWANCE UNDER RULE 8D2(III). AS THE FACT S AND CIRCUMSTANCES DURING THE YEAR UNDER CONSIDERATION ARE PERIMATERIA, RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF CIT(A) FOR RESTRICTING THE PROPORTIONATE DISALLOWANCE U NDER RULE 8D2(III). 10. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 13 / 08 /201 8 SD/ - ( SANDEEP GOSAIN ) SD/ - (R.C.SHARMA) JUDICIAL MEMBER A CCOUNTANT MEMBER MUMBAI ; DATED 13 / 08 /201 8 KARUNA SR. PS COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//