DCIT Central Circle-31, New Delhi V. Malana Power Company Ltd., New Delhi

ITA 2968/DEL/2019

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 1294 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2014-2015
• Appeal Filed On: 03-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Earning of tax free income; Rule 8D
• Section: 143(3); 14A; 115JB

Judgement Text

Page | 1 INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “E”: NEW DELHI BEFORE SHRI G.S. PANNU, HON‟BLE PRESIDENT AND SHRI ANUBHAV SHARMA, JUDICIAL MEMBER ITA No. 2968, 5939, 5940, 5941, 5942/Del/2019 (Assessment Year: 2014-15 to 2017-18) DCIT, Central Circle-31, New Delhi Vs. Malana Power Company Ltd, Bhiwara Bhawan, 40-41, Community Center, New Friends Colony, New Delhi PAN: AABCM1108R (Appellant) (Respondent) Assessee by : Shri P. K. Jain, CA Revenue by: Ms. Deepshikha Sharma, CIT DR Date of Hearing 18/05/2022 Date of pronouncement 30/06/2022 O R D E R PER ANUBHAV SHARMA, J. M.: 1. These appeals in hand have been preferred by the revenue against the assessment order dated 26.12.2018 for Assessment Year 2014-15 passed u/s 143(3) by the ld AO, Dy. Commissioner of Income Tax, Circle-16(1), New Delhi and re-assessment order dated 30.04.2019 for Assessment Years 2014-15 to 2017-18 passed by the Ld. Assessing Officer, ACIT, Central Circle-31, New Delhi passed u/s 153/ r.w.s 143(3) of the Income Tax Act, 1961 (hereinafter referred as „the Act‟). 2. The facts in brief are that the Assessee Company is engaged in the business of generation of hydroelectric power and development Page | 2 of hydro projects. The company has taken the permission from Govt. of Himachal Pradesh to own, operate and maintain the project and sale of power for a period of 40 years from July 05, 2001. In the relevant assessment years for which the appeals have been preferred disallowance u/s 14A read with Rule 8D was made in regard to investments, the income for which does not form part of total income, then adjustment/ disallowance were made in regard to income from sale of carbon credits and income from carbon credit was considered in the book profit u/s 115JB of the Act. 3. In appeal the ld CIT(A) had considered the fact that as no exempt income was earned by the Assessee in relevant years section 14A of the Act cannot be invoked and relying on Assessee‟s own case decided by ITAT for Assessment Year 2009-10, 2010-11 and 2011-12 it was held that sale of carbon credit is a capital receipt and accordingly are out of purview of taxable income in regular assessment as well as u/s 115JB of the Act. 4. Now the revenue has come in appeal raising following grounds of appeal, as reproduced from the appeal for Assessment Year 2014- 15:- “1. The Ld.CIT(A) has erred in law and on facts in deleting the disallowance u/s 14A read with rule 8D of the income Tax Rules made by the AO ignoring the fact that the provisions of section 14A of the Act are mandatory. 2. The Ld.CIT(A) has erred in not appreciating the content of CBDT Circular No. 05/2014 dated 11.02.2014 which clarifies that Rule 8D read with section 14A of the Act provides for disallowances of the expenditure even where taxpayer in a particular year has not earned any exempt income. 3. The Ld.CIT(A) has erred in law and on facts in deleting the income earned from sale of Carbon Credit from MAT provision while computing book profit u/s 115JB of the Income Tax Act. Page | 3 4. That the grounds of appeal are without prejudice to each other.” 5. Heard and perused all the records. 6. The grounds raised in the appeal could not be substantiated on behalf of the revenue by citing any distinction of facts or law which were considered in Assessee‟s own case for Assessment Year 2009- 10 to 2011-12 and which have been considered rightly by ld CIT(A) while giving benefit to the Assessee. They have attained finality before the Hon‟ble Delhi High Court in Assessee‟s own case in ITA No. 896/2016 and order dated 24.03.2017 where on the basis of assessee not having any exempt income in the relevant year, it was held that addition under Section 14A of Act cannot be made out. In the light of the aforesaid facts, there is no substance in the grounds as raised by the revenue. Therefore, the appeals filed by the revenue are dismissed. Order pronounced in the open court on 30/06/2022. -Sd/- -Sd/- (G.S.PANNU ) (ANUBHAV SHARMA) HON‟BLE PRESIDENT JUDICIAL MEMBER Dated:30/06/2022 A K Keot Copy forwarded to 1. Applicant 2. Respondent 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, New Delhi