DCIT CEN CIR 2(3), MUMBAI V. ADVANCE METAL CORPORATION P. LTD, MUMBAI

ITA 4621/MUM/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0118 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-03-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 05-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJAL MITTAL
• Keywords: Earning of tax free income
• Section: 143(3); 14A

Judgement Text

INCOME-TAX APPELLATE TRIBUNAL CBENCH M UMBAI , , BEFORE S/SH. RAJENDRA, ACCOUNTANT M EMBER & RAMLAL NEGI, JUDICIAL MEMBER ./I.T.A. NO. 4676/MUM/2016, /ASSESSMENT YEAR: 2012-13 ASST. COMMISSIONER OF INCOME TAX-25(3), ROOM NO. 601, C-10, 6 TH FLOOR, PRATYAKSHAKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI-400 051 VS. M/S. MILESTONE REAL ESTATE FUND, 602, HALLMARK BUSINESS PLAZA, SANT DHYANESHWAR MARG, OPP. GURUNANAK HOSPITAL, BANDRA (E), MUMBAI-400 051 ( /APPELLANT ) ( / RESPONDENT ) REVENUE BY: SHRI RAJAL MITTAL - DR ASSESSEE BY: SHRI HITESH TRIVEDI / DATE OF HEARING: 30.01.2018 / DATE OF PRONOUNCEMENT: 01.03.2018 ,1961 254(1) ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) , / PER RAJENDRA, AM - CHALLENGING THE ORDER DATED 23.5.2016 OF THE CIT(A) -37, MUMBAI THE REVENUE HAS FILED THE PRESENT APPEAL.ASSESSEE-TRUST IS OPERATING AS A VEN TURE CAPITAL FUND (VCF). IT FILED ITS RETURN OF INCOME ON 31.07.2012, DECLARING TOTAL INCOME OF RS. 1.21 CRORES. THE ASSESSING OFFICER (A.O.) COMPLETED THE ASSESSMENT ON 27.03.2015, U/S. 143(3) OF THE ACT,DETERMINING ITS INCOME AT RS.1.24 CRORES. 2. EFFECTIVE GROUND OF ABOVE DELETING THE ADDITION OF RS.3,00,81,666/-, CLAIMED U/S. 57(III) OF THE ACT. DURING THE ASSESSMENT PROCEEDINGS, THE A.O. FO UND THE TRUST WAS MANAGED BY INVESTMENT MANGERS UNDER INVESTMENT MANAGEMENT AGREEMENT(IMA), THAT THE OBJECT OF THE TRUST WAS TO RAISE CONTRIBUTION FROM BENEFICIARIES FOR THE SCHEME FORM ULATED BY THE FUND AND TO MAKE PERMITTED INVESTMENTS FOR THE BENEFITS OF THE BENEFICIARIES, THAT THERE WERE NO IDENTIFIED CLAUSE OF BENEFICIARIES AS ON THE DATE OF TRUST, THAT NO CONT RIBUTION AGREEMENT WAS ALSO ENTERED INTO. HE REFERRED TO THE PROVISIONS OF SECTION 10(23) OF THE ACT AND HELD THAT IN RESPECT OF VCF THE ASSESSEE WAS NOT ELIGIBLE FOR EXEMPTION, THAT TAXAB ILITY OF THE TRUST WAS GOVERNED BY THE SECTION 161-164 OF THE ACT. HE FOUND THAT FOR THE YEAR UNDE R CONSIDERATION, THE ASSESSEE WAS FOLLOWING SEVEN SCHEMES,THAT IT HAD NOT MAINTAINED CONSOLIDAT ED FINANCIAL STATEMENTS, THAT IT HAD DIFFERENT TYPES OF INVESTORS FOR THE SCHEMES, THAT IT HAD EAR NED TOTAL INCOME OF RS.190.36 CRORES, THAT THE ITA NO. 4676/MUM/2016 FOR M/S. MILESTONE REAL ESTAT E FUND 2 DIVIDEND INCOME OF RS.18.45 CRORES WAS CLAIMED EXEM PT U/S. 10(35) OF THE ACT, THAT IT HAD INCURRED TOTAL EXPENDITURE OF RS.55.15 CRORES, THAT IT HAD MADE A DISALLOWANCE OF RS.1.08 CRORES AS PER THE PROVISIONS OF SECTION 14A OF THE ACT, TH AT IT HAD MADE OTHER DISALLOWANCE OF RS.3.17 CRORES,THAT BALANCE EXPENDITURE OF RS.50.90 CRORES WAS CLAIMED AGAINST THE TAXABLE INCOME. REFERRING TO VARIOUS CLAUSES OF INVESTMENT SCHEMES HE OBSERVED THAT THE ASSESSEE HAD CLAIMED HUGE EXPENSES UNDER THE HEAD OTHER ADMINISTRATIVE AND OPERATIVE EXPENSES, AMOUNTING TO RS.9. 18 CRORES,THAT THESE EXPENSES INCLUDED IN ADMINISTR ATIVE AND OPERATIVE EXPENSES, LEGAL EXPENSES, TRAVELLING EXPENSES, THAT THE ASSESSEE ITSELF HAD W ORKED OUT A DISALLOWANCE OF RS.3.17 CRORES. THE AO CALLED FOR FURTHER DETAILS IN THIS REGARD. AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE,HE HELD THAT IT FAILED TO ESTABLISH THAT THE EXPENSES WERE INCURRED IN THE ORDINARY COURSE OF BUSINESS ACTIVITY.HE HELD THAT 50% OF THE OTHER ADMINISTRATI VE AND OPERATIVE EXPENSES HAD TO BE DISALLOWED.AS A RESULT, AN ADDITION OF THE SAID AMO UNT WAS MADE TO THE INCOME OF THE ASSESSEE. 3. AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER, TH E ASSESSEE PREFERRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY(FAA)AND MADE DETAILED SUB MISSIONS.AFTER CONSIDERING AVAILABLE MATERIAL,HE HELD IDENTICAL ISSUE WAS DELIBERATED UP ON BY HIM WHILE DECIDING THE APPEAL FOR AY. 2011-12 AND THE AY.2009-10.REFERRING TO THE ORDER O F HIS PREDECESSOR FOR THE AY.2009-10,HE DIRECTED THE A.O. TO VERIFY AND ALLOW OTHER ADMINIS TRATIVE AND OPERATIVE EXPENSES. 4. DURING THE COURSE OF HEARING BEFORE US,THE DEPARTME NTAL REPRESENTATIVE (DR) RELIED UPON THE ORDER OF THE AO.THE AUTHORISIED REPRESENTATIVE (AR) STATED THAT WHILE DECIDING THE APPEAL FOR AY.2009-10(ITA 2587/MUM/2015 DATED 15.09.2017),THE TRIBUNAL HAD DECIDED THE SIMILAR ISSUE. WE FIND THAT THE TRIBUNAL HAD IN ITS ORDER DTD.15/0 9/2017,HELD AS UNDER: 10. THUS, FROM THE AFORESAID OBSERVATIONS OF THE AS SESSING OFFICER IN THE REMAND REPORT IT IS MANIFEST, OUT OF THE TOTAL EXPENDITURE CLAIMED OF R S.18,62,63,876, THE ASSESSING OFFICER HAS ACCEPTED THAT MAJOR PART OF THE EXPENDITURE HAS BEE N INCURRED FOR EARNING THE INTEREST AND OTHER INCOME, HENCE, ALLOWABLE UNDER SECTION 57(III) OF T HE ACT. HE HAS ONLY DISPUTED THE AFLOWABILITY OF EXPENDITURE TO THE TUNE OF RS.2,34,81,073 INCURRED UNDER THE HEAD OTHER :: ADMINISTRATIVE AND OPERATING EXPENDITURE. THE REASONING OF THE ASSESSI NG OFFICER IS, SUCH EXPENDITURES ARE IN THE' NATURE OF LEGAL EXPENDITURE, TRAVELLING EXPENSES, E TC., AND ON VERIFICATION OF BILLS AND VOUCHERS IT IS FOUND THAT THEY ARE NOT IN THE NAME OF ASSESSEE OR ANY OF ITS SCHEMES. IN OUR VIEW, THE LEARNED COMMISSIONER (APPEALS) HAS COUNTERED THESE REASONIN GS OF THE ASSESSING OFFICER EFFECTIVELY. AS COULD BE SEEN THE LEARNED COMMISSIONER (APPEALS) AF TER EXAMINING THE DETAILS OF EXPENDITURE HAS FOUND THAT THE ASSESSEE HAS FURNISHED THE DETAILS O F INCURRED SHOWING THE SPECIFIC INSTANCES FOR INCURRING SUCH EXPENDITURE AND WORK FOR WHICH SUCH EXPENDITURE WAS INCURRED. HE FOUND THAT SUCH EXPENDITURE RELATED TO REIMBURSEMENT FOR ROC F ILING FEES, LEGAL EXPENDITURE PERTAINING TO SPECIFIC PROJECT, FOR ARRANGEMENT OF LOWER TDS CERT IFICATE, ETC. HE HAS FOUND THAT EXPENDITURE UNDER THE HEAD PRINTING AND STATIONERY FOR PRINTING OF INVESTOR'S NEWS LETTERS WHICH ARE REQUIRED FOR ANY .ENTITY WORKING IN THE VENTURE CAPITAL FIEL D. HE HAS ALSO GIVEN A FACTUAL FINDING THAT THE ITA NO. 4676/MUM/2016 FOR M/S. MILESTONE REAL ESTAT E FUND 3 ASSESSEE TRUST DOES NOT HAVE ANY EMPLOYEE TO CARRY OUT THE DAY-TO-DAY ADMINISTRATIVE AND TASK RELATING TO DUE DILIGENCE. NO MATERIAL OR EVIDENCE HAS BEEN BROUGHT BEFORE US BY THE LEARNED DEPARTMENTAL REPRESENTATIVE TO CONTROVERT THE AFORE SAID FACTUAL FINDING OF THE (EARNED COMMISSIONER (APPEALS). LEARNED DEPARTMENTAL REPRES ENTATIVE WAS ALSO UNABLE TO FACTUALLY ESTABLISH THAT THE EXPENDITURE INCURRED WERE NOT IN TERMS WITH THE AGREEMENT. IT IS ALSO A FACT THAT THE ASSESSEE HAS VOUNTANLY DISALLOWED AN AMOUNT OF RS.68,14,151 UNDER SECTION 14A OF THE ACT. ON ACCOUNT OF EXPENIDUTRE ATTRIBUTABLE TO EARNING O F EXEMPT INCOME. THUS, IN VIEW OF THE AFORESAID FACT, WE DO NOT FIND ANY REASON TO INTERF ERE WITH THE ORDER OF THE LEARNED COMMISSIONER (APPEALS). ACCORDINGLY, GROUNDS RAISED ARE DISMISSE D. RESPECTFULLY FOLLOWING THE ABOVE,WE DISMISS THE GRO UNDS RAISED BY THE AO AND CONFIRM THE ORDER OF THE FAA.HE WOULD FOLLOW THE DIRECTIONS OF THE FA A. AS A RESULT, THE APPEAL FILED BY THE AO STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 1 ST MARCH, 2018. 01 , 2018 SD/- SD/- RAMLAL NEGI/ ) (RAJENDRA/ ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; /DATED :01.03.2018. ROSHANI, SR. PS/JV, SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR C BENCH, ITAT, MUMBAI / , , . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.