DCIT, Cir.1(1)(1), Ahmedabad V. Ardor In-Fin Private Ltd., Ahmedabad

ITA 2739/AHD/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9485 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 6 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-06-2019
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 06-12-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: ANKIT TALSANIA
• Keywords: Earning of tax free income; Revised return; Rule 8D
• Section: 143(3); 14A; 250

Judgement Text

ITA NO. 2739/AHD/2017 DCIT VS. ARDOR IN-FIN PVT LTD ASSESSMENT YEAR: 2014-15 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH, AHMEDABAD [CORAM: PRAMOD KUMAR, VP AND MS. MADHUMITA ROY, JM] ITA NO. 2739/AHD/2017 ASSESSMENT YEAR: 2014-15 DY. COMMISSIONER OF INCOME-TAX .............. ....APPELLANT CIRCLE 1(1)(1), AHMEDABAD VS. ARDOR IN-FIN PVT LTD ...........................RESPONDENT ARDOR HOUSE, MONDEAL BUSINESS PARK, B/S. GURUDWARA, THALTEJ, AHMEDABAD 380059 [PAN : AAGCA 2925 B] APPEARANCES BY: MUDIT NAGPAL, FOR THE APPELLANT ANKIT TALSANIA, FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : 14.03.2019 DATE OF PRONOUNCING THE ORDER : 11.06.2019 O R D E R PER PRAMOD KUMAR, VICE PRESIDENT: 1. THIS APPEAL, FILED BY THE ASSESSING OFFICER, IS DIRECTED AGAINST THE ORDER DATED 29 TH SEPTEMBER 2017 OF THE CIT(A) IN THE MATTER OF ASSE SSMENT UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 FOR THE ASSESSMENT YEAR 2014-15. 2. IN FIRST AND SECOND GROUND OF APPEAL, WHICH WE W ILL TAKE UP TOGETHER, THE GRIEVANCES RAISED ARE AS FOLLOWS:- 1. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN DELETING THE SUO MOTTO DISALLOWANCE OF RS.52,59,412/- U/S 14A AND RS.16,51 ,834/- U/S 14A R.W. RULE 8D(III) OF THE IT ACT 1961. 2. THAT THE LD CIT(A) HAS ERRED IN LAW AND FACTS IN DIRECTING THE AO TO REDUCE THE TOTAL INCOME BY RS.52,59,412/- DESPITE THE FACT THAT ASSESSEE DID NOT FILE REVISED RETURN OF INCOME. 3. LEARNED REPRESENTATIVES FAIRLY AGREE, EVEN AS LE ARNED DEPARTMENTAL REPRESENTATIVE DUTIFULLY RELIED UPON THE STAND OF T HE ASSESSING OFFICER, THAT THE ISSUE IS NOW COVERED, IN FAVOUR OF THE ASSESSEE, BY A COO RDINATE BENCH DECISION IN THE ITA NO. 2739/AHD/2017 DCIT VS. ARDOR IN-FIN PVT LTD ASSESSMENT YEAR: 2014-15 PAGE 2 OF 4 CASE OF DCIT VS. GREENLAND INFRACON PVT LTD (ITA NO .2039 & 2040/AHD/2016; ORDER DATED 14.11.2008) WHEREIN THE BENCH HAS, INTER ALIA, OBSERVED AS FOLLOWS:- 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISS IONS AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW. THE SUBSTANTIVE QU ESTION ARISES IN THE REVENUE'S APPEAL IS TO ASCERTAIN THE CORRECTNESS OF THE ACTION OF THE CIT(A) IN REFUSING TO ENDORSE THE ACTION OF THE AO FOR RESORT ING TO DISALLOWANCE UNDER S.14A OF THE ACT. TWO BROAD ISSUES EMERGES IN THE C ONTEXT OF THE CASE; (I) WHETHER THE DISALLOWANCE UNDER S.14A IS MAINTAINABL E WHERE ADMITTEDLY NO EXEMPT INCOME I.E. DIVIDEND WAS EARNED BY THE ASSES SEE IN THE RELEVANT ASSESSMENT YEAR AND (II) WHETHER THE CIT(A) WAS JUS TIFIED IN GOING BEYOND THE RETURN OF INCOME AND REMOVE THE DISALLOWANCE WHICH THE ASSESSEE ITSELF HAS MADE WHILE FILING THE RETURN OF INCOME. IN OTHER WO RDS, WHETHER THE ACTION OF THE CIT(A) IN BRINGING DOWN THE INCOME RETURNED BY THE ASSESSEE AND GRANTING RELIEF ON THE ISSUES NOT RAISED AT THE TIM E OF FILING ORIGINAL RETURN OF INCOME OR BY WAY OF REVISED RETURN AT A SUBSEQUENT STAGE IS JUSTIFIED IN LAW OR NOT. 7. THE FIRST ISSUE FRAMED ABOVE APPEARS QUITE SIMPL E AS WE SEE. WHILE ADJUDICATING THE ISSUE, WE TAKE NOTE OF CBDT CIRCUL AR NO. 5/2014 DATED 11/02/2014 WHICH SEEKS TO EMPHASIZE THAT ALL EXPENS ES PERTAINING TO AN EXEMPT INCOME IS REQUIRED TO BE DISALLOWED NOTWITHS TANDING THE FACT THAT NO CORRESPONDING TAX FREE INCOME HAS BEEN EARNED DURIN G THE FINANCIAL YEAR. NOTWITHSTANDING THE AFORESAID CIRCULAR, VARIOUS COU RTS HAVE HELD THAT SECTION 14A OF THE ACT DISALLOWANCE CANNOT BE KICKED WHEN T HERE WAS NO EXEMPT INCOME EARNED BY THE ASSESSEE AS IS THE CASE IN THE PRESENT APPEALS. HON'BLE DELHI HIGH COURT IN PCIT VS IL&FS ENERGY DEVELOPMEN T COMPANY LTD. (2017) 84 TAXMAN.COM 186(DELHI) AND THE HON'BLE MADRAS HIG H COURT IN CIT V. CHETTINAD LOGISTICS (P.) LIMITED (2017) 80 TAXMANN. COM 221(MADRAS) HAVE EXPRESSED A CLEAR DISAGREEMENT WITH CBDT CIRCULAR A ND HELD THAT WHERE THERE IS NO EXEMPT INCOME IN RELEVANT YEAR THERE CA NNOT BE A DISALLOWANCE OF EXPENDITURE UNDER S.14A OF THE ACT. SIMILAR PROPOSI TION HAS BEEN LAID DOWN BY THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF CORRT ECH ENERGY (P.) LTD (2014) 45 TAXMANN.COM. 116 (GUJ) AND PR.CIT VS. INDIA GELA TINE AND CHEMICALS LTD. (2016) 66 TAXMANN.COM 356 (GUJ). THE AFORESAID JUDI CIAL FIAT WAS REITERATED BY THE HON'BLE DELHI HIGH COURT IN THE CASE OF JOINT I NVESTMENTS PVT. LTD. VS. CIT REPORTED IN 372 ITR 692 (DELHI) WHEREIN HON'BLE DELHI HIGH COURT HAS CATEGORICALLY RULED THAT DISALLOWANCE UNDER S.14A O F THE ACT CANNOT EXCEED THE AMOUNT OF TAX EXEMPT INCOME. NOTABLY, THE SLP F ILED AGAINST THE DECISION OF HON'BLE MADRAS HIGH COURT IN CHETTINAD LOGISTICS (SUPRA) HAS BEEN DISMISSED BY HON'BLE SUPREME COURT IN CIT VS. CHETT INAD LOGISTICS (P.) LTD. (2018) 95 TAXMANN.COM 250 (SC). HENCE, IN CONFORMIT Y WITH THE JUDICIAL PRECEDENTS, WE FIND SUBSTANTIAL MERIT IN THE CONCLU SION DRAWN BY THE CIT(A) WHICH ESSENTIALLY HOLDS THAT SECTION 14A OF THE ACT CAN BE TRIGGERED ONLY IF ASSESSEE SEEKS TO SQUARE OFF EXPENDITURE AGAINST TH E INCOME WHICH DOES NOT FORM PART OF TOTAL INCOME UNDER THE ACT AND SECTION 14A OF THE ACT CANNOT BE INVOKED WHERE NO EXEMPT INCOME WAS EARNED IN THE RE LEVANT ASSESSMENT YEARS. IN CONSONANCE WITH THE JUDICIAL PRECEDENTS, WE DO NOT SEE ANY INFIRMITY ITA NO. 2739/AHD/2017 DCIT VS. ARDOR IN-FIN PVT LTD ASSESSMENT YEAR: 2014-15 PAGE 3 OF 4 IN THE CONCLUSION DRAWN BY THE CIT(A) FOR NON-APPLI CABILITY OF SECTION 14A OF THE ACT IN THE FACTS OF THE CASE. 8. WE SHALL NOW TURN TO THE SECOND ISSUE RAISED ON BEHALF OF THE REVENUE REGARDING PROPRIETY OF THE ACTION OF THE CIT(A) IN GRANTING RELIEF ON THE DISALLOWANCE (SUO MOTO MADE BY THE ASSESSEE) BEYOND THE RETURN OF INCOME AND IN THE ABSENCE OF ANY FORMAL REVISED RETURN. TH E CIT(A) HAS DISCUSSED THIS ASPECT IN VERY GREAT DETAIL IN PARA 2.5 TO 2.2 8 OF ITS ORDER. WE ARE NOT INCLINED TO REITERATE THE FINDINGS OF THE CIT(A). H OWEVER, WE FULLY ENDORSE THE OBSERVATIONS OF THE CIT(A) WHICH ESSENTIALLY HOLDS THAT THE MISTAKE OR INADVERTENCE ON THE PART OF THE ASSESSEE WHEREBY AN INCOME NOT TAXABLE HAS BEEN WRONGLY OFFERED FOR TAX, WILL NOT OPERATE AS A NY KIND OF ESTOPPEL AGAINST THE ASSESSEE AND REGARDLESS OF WHETHER THE REVISED RETURN WAS FILED OR NOT. ONCE THE ASSESSEE IS IN A POSITION TO SHOW THAT IT HAS BEEN OVER ASSESSED UNDER THE PROVISIONS OF THE ACT EVEN ON ACCOUNT OF ASSESSEE'S OWN MISTAKE OR OTHERWISE, THE REVENUE IS UNDER DUTY TO ASSESS CORR ECT INCOME. 9. IT IS TRITE THAT THE AUTHORITIES UNDER THE ACT A RE UNDER SACROSANCT OBLIGATION TO ACT IN ACCORDANCE WITH LAW. TAX CAN BE COLLECTED ONLY AS PROVIDED UNDER THE ACT. IF AN ASSESSEE, UNDER A MISTAKE, MIS-CONCEPTIO N OR NOT BEING PROPERLY INSTRUCTED, IS OVER ASSESSED, THE AUTHORITIES UNDER THE ACT ARE REQUIRED TO ENSURE THAT ONLY LEGITIMATE TAX DUES ARE COLLECTED. THIS IS THE VIEW WHICH FLOWS FROM INNUMERABLE JUDGMENTS INCLUDING CIT VS. SHELLY PRODUCTS (2003) 261 ITR 367 (SC), S. R. KOSHTI VS. CIT (2005) 276 ITR 165 ( GUJ), ESTER INDUSTRIES VS. CIT (2009) 185 TAXMAN 266 (DELHI) AND CIT VS. PRUTH VI BROKERS & SHAREHOLDERS (P.) LTD. [2012] 349 ITR 336 (BOM). TH E ESSENCE OF THESE DECISIONS ARE THAT MERE ADMISSION ON THE PART OF TH E ASSESSEE WITH RESPECT TO AN ADDITION/DISALLOWANCE IN ITS ORIGINAL RETURN OR IN REVISED RETURN WOULD NOT IPSO FACTO BAR AN ASSESSEE FROM CLAIMING AN EXPENSE OR DISPUTING AN ADDITION IF IT IS OTHERWISE PERMISSIBLE UNDER LAW. IT IS THU S WELL SETTLED THAT IF A PARTICULAR INCOME IS NOT TAXABLE UNDER THE ACT, IT CANNOT BE T AXED ON THE BASIS OF ESTOPPEL OR ANY OTHER EQUITABLE DOCTRINE. THE REVEN UE AUTHORITIES CANNOT ENFORCE UNTENABLE ACTIONS OF THE ASSESSEE AGAINST I T WHICH LED TO DECLARATION OF INCOME OF HIGHER AMOUNT INCORRECTLY. IT IS THUS OPEN TO ASSESSEE TO SHOW THAT IT WAS OVER ASSESSED IN CORRECTLY OWING TO ITS OWN MISTAKE. 10. SO VIEWED, WE DO NOT SEE ANY POTENCY IN THE ARG UMENT LAID ON BEHALF OF THE REVENUE THAT THE CIT(A) ALLEGEDLY COMMITTED ERR OR IN GRANTING TOTAL RELIEF IN THE MATTER OF DISALLOWANCE UNDER S.14A OF THE AC T. IN OUR CONSIDERED VIEW, THE ACTION OF THE CIT(A) IN GRANTING RELIEF UNDER S .14A OF THE ACT ON ACCOUNT SUO MOTO DISALLOWANCE BY THE ASSESSEE AND THEREBY G RANTING RELIEF HIGHER THAN CLAIMED IN THE RETURN OF INCOME CANNOT BE FAUL TED IN LAW. 4. WE SEE NO REASONS TO TAKE ANY OTHER VIEW OF THE MATTER THAN THE VIEW SO TAKEN BY THE COORDINATE BENCH. RESPECTFULLY FOLLOW ING THE SAME, WE APPROVE THE STAND OF THE CIT(A) AND DECLINE TO INTERFERE IN THE MATTER. 5. GROUND NOS. 1 & 2 ARE THUS DISMISSED. ITA NO. 2739/AHD/2017 DCIT VS. ARDOR IN-FIN PVT LTD ASSESSMENT YEAR: 2014-15 PAGE 4 OF 4 6. ONCE THE DISALLOWANCE UNDER SECTION 14A STANDS D ELETED, ALL OTHER ISSUES RAISED IN THIS APPEAL ARE RENDERED INFRUCTUOUS. 7. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED IN T HE TERMS ABOVE. PRONOUNCED IN THE OPEN COURT TODAY ON THE 11 TH JUNE, 2019 SD/- SD/- MS. MADHUMITA ROY PRA MOD KUMAR (JUDICIAL MEMBER) (VICE PRESIDENT) AHMEDABAD, THE 11 TH DAY OF JUNE, 2019 **BT COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD 1. DATE OF DICTATION: .....ORDER PREPARED AS PER 4 PAGES MANUSCRIPTS OF HONBLE VP- ATTACHED....11.06.2019.... 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: .. 11.06.2019..... 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR . P.S./P.S.: .11.06.2019.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: .. 11.06.2019..... 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK : . . 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK : . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER : . 8. DATE OF DESPATCH OF THE ORDER: ......