SEAMLESS SYNDICATION SERVICES LTD, MUMBAI V. DCIT CEN CIR 6(3), MUMBAI

ITA 4012/MUM/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8774 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2012-2013
• Appeal Filed On: 02-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJUNATHA SWAMY
• Assessee Lawyers: SANJAY R PARIKH
• Keywords: Revision of order; Earning of tax free income
• Section: 14A; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E MUMBAI BEFORE SHRI D.T. GARASIA (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 4012/MUM/2017 ASSESSMENT YEAR: 2012 - 13 M/S SEAMLESS SYNDICATION SERVICES LTD. 10, SOHRAB BUILDING, 1 ST FLOOR, 505, KALBADEVI ROAD, EDWARD THEATRE, MUMBAI - 400002 VS. THE PCIT - 13 416, AAYAKAR BHAVAN, M.K. ROAD MUMBAI - 400020. PAN NO. AAICS0728C APPELLANT RESPONDENT ASSESSEE BY : SHRI SANJAY R. PARIKH REVENUE BY : SHRI MANJUNATHA SWAMY , DR DATE OF HEARING : 09 /10/2017 DATE OF PRONOUNCEMENT : 31/10/2017 ORDER PER N.K. PRADHAN, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE. THE RELEVANT ASSESSMENT YEAR IS 2012 - 13 . THE APPEA L IS DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX - 13 , MUMBAI U/S 263 OF THE INCOME TAX ACT 1961, (THE ACT). M/S SEAMLESS SYNDICATION SERVICES LTD. ITA NO. 4012/MUM/2017 2 2. THE G ROUNDS OF AP PEAL FILED BY THE ASSESSEE READ AS UNDER: 1) THE LEARNED PRINCIPAL COMMISSIONER OF INCOME TAX 13, MUMBAI (PR. CIT) ERRED ON FACTS AND IN LAW IN HOLDING THAT THE DEPUTY COMMISSIONER OF INCOME TAX - 13(2)(1), MUMBAI (AO) HAD ONLY APPLIED THE THIRD LIMB OF RULE 8D AND THE WHOLESOME VIEW WAS NOT TAKEN LEADING TO ERROR AND PREJUDICE TO THE INTEREST OF REVENUE. 2) THE LEARNED PR. CIT ERRED IN HOLDING THAT THE AO HAD NOT PUT RULE 8D INTO OPERATION CORRECTLY. 3) THE PR. CIT ERRED IN DIRECTING THE AO TO REWORK THE DISALLOWANCE U/S. 14A AT RS.11,27,693/ - BY CONSIDERING THE INTEREST TO BE DISALLOWED AS PER RULE 8D(I) AT RS. 10,71,064/ - . 4) THE APPELLANT PRAYS THAT YOUR HONOUR HOLD THAT THE ORDER PASSED BY THE AO IS NEITHER ERRONEOUS NOR PREJUDICIAL OF THE INTEREST OF REVENUE, WHICH WOULD JUSTIFY ITS REVISION U/S. 263 OF THE INCOME - TAX ACT. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE CIT OBSERVED THAT THE ASSESSING OFFICER (AO) WHILE MAKING THE SCRUTINY ASSESSMENT HAS CONSIDERED THE THIRD LIMB OF RULE 8D BUT FAILED TO MAKE COMPLETE DISALLOWANCE U/S 14A R.W. RULE 8D OF THE INCOME TAX RU LE, 1962. THEREFORE, HE DIRECTED THE AO TO REWORK THE SAID DISALLOWANCE. 4. BEFORE US, THE LD. COUNSEL OF THE ASSESSEE SUBMITS THAT THE ASSESSEE HAD NOT EARNED ANY DIVIDEND INCOME DURING THE IMPUGNED ASSESSMENT YEAR. HENCE IT HAS NOT CLAIMED ANY INCOME AS EXEMPT U/S 10(34) OF THE ACT. THEREFORE, IT IS SUBMITTED BY HIM THAT NO DISALLOWANCE U/S 14A R.W. RULE 8D BE MADE IN THE INSTANT CASE. M/S SEAMLESS SYNDICATION SERVICES LTD. ITA NO. 4012/MUM/2017 3 5. ON THE OTHER HAND, THE LD. DR SUPPORTS THE ORDER PASSED BY THE CIT. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERU SED THE RELEVANT MATERIALS ON RECORD. WE FIND THAT THE ASSESSEE HAS NOT EARNED ANY DIVIDEND INCOME DURING THE IMPUGNED ASSESSMENT YEAR. IT IS EVIDENT FROM THE AUDITED ACCOUNTS FOR THE FY 2011 - 12. IT HAS NOT CLAIMED ANY INCOME AS EXEMPT U/S 10(34). IN THE C ASE OF CIT V. SHIVAM MOTORS (P) LTD. (2015) 55 TAXMANN.COM 262 (ALL), IT HAS BEEN HELD THAT IN ABSENCE OF ANY TAX FREE INCOME EARNED BY THE ASSESSEE, DISALLOWANCE U/S 14A COULD NOT BE MADE. IN A SIMILAR VEIN, IT HAS BEEN HELD IN CHEMINVEST LTD. V. CIT (201 5) 61 TAXMANN.COM 118 (DEL) THAT SECTION 14A WILL NOT APPLY IF NO EXEMPT INCOME IS RECEIVED OR RECEIVABLE DURING THE RELEVANT PREVIOUS YEAR. RESPECTFULLY FOLLOWING THE ABOVE JUDGMENTS , WE HOLD THAT THE CIT ERRED IN PASSING THE ORDER U/S 263. ACCORDINGLY, WE CANCEL THE SAID ORDER. 7. IN THE RESULT, THE APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31/10/2017. SD/ - SD/ - ( D.T. GARASIA ) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 31/10/2017 RAHUL SHARMA, SR. P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. M/S SEAMLESS SYNDICATION SERVICES LTD. ITA NO. 4012/MUM/2017 4 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI