INVESTRICK SECURITIES P (I) P.LTD, MUMBAI V. DCIT 2(2), MUMBAI

ITA 538/MUM/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8372 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 1 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Next Hearing Date: 13-12-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 18-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset; Business income; Opportunity of being heard; Principle of natural justice; Earning of tax free income; Speculation loss
• Section: 143(3); 234B; 14A; 43(5); 12; 28; 2

Judgement Text

I IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO.538/ MUM/2013 ( / ASSESSMENT YEAR : 2007-08) ./ I.T.A. NO.539/ MUM/2013 ( / ASSESSMENT YEAR : 2008-09) INVESTRICK SECURITIES (INDIA) PVT. LTD., 608, DALAMAL HOUSE, NARIMAN POINT, MUMBAI 400 021. / V. DY. COMMISSIONER OF INCOME TAX 2(2), AAYAKAR BHAVAN, M.K. MARG, MUMBAI - 400020. ./ PAN : AAACI5005J ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY : NONE REVENUE BY : MR. SAURABHKUMAR RAI , DR / DATE OF HEARING : 04-01-2017 / DATE OF PRONOUNCEMENT : 24-02-2017 / O R D E R PER BENCH : THESE TWO APPEALS, FILED BY THE ASSESSEE, BEING IT A NO. 538/MUM/2013 AND ITA NO. 539/MUM/2013, ARE DIRECTED AGAINST TWO SEPARATE APPELLATE ORDERS DATED 23-11-2012 AND 24-11-2012 BOTH PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)- 5, MUMBAI (HE REINAFTER CALLED THE CIT(A)), FOR THE ASSESSMENT YEARS 2007-08 & 2008-0 9 RESPECTIVELY, THE APPELLATE PROCEEDINGS BEFORE THE LEARNED CIT(A) ARI SING FROM TWO SEPARATE ASSESSMENT ORDERS DATED 27 TH OCTOBER, 2009 AND 29 TH DECEMBER, 2010 RESPECTIVELY PASSED BY THE LEARNED ASSESSING OFFIC ER (HEREINAFTER CALLED THE ITA NO. 538/MUM/2013 & ITA NO. 539/MUM/2013 2 AO) U/S 143(3) OF THE INCOME-TAX ACT,1961 (HEREINA FTER CALLED THE ACT) FOR THE ASSESSMENT YEARS 2007-08 & 2008-09. 2. THE GROUNDS OF APPEAL RAISED IN ITA NO. 538/MUM/ 2013 FOR ASSESSMENT YEAR 2007-08 BY THE ASSESSEE IN MEMO OF THE APPEALS FILED WITH THE INCOME-TAX APPELLATE TRIBUNAL, MUMBAI (HEREINAF TER CALLED THE TRIBUNAL) READ AS UNDER:- I. THE COMMISSIONER OF INCOME-TAX (APPEALS) - 5, MU MBAI (HEREINAFTER REFERRED TO AS THE CIT(A)) ERRED IN UPH OLDING THE ACTION OF THE DEPUTY COMMISSIONER OF INCOME-TAX - 2(2), MUMBAI (HEREINAFTER REFERRED TO AS THE ASSESSING OFFICER) IN DISALLOWING A SUM OF RS 2,94,880 ON ACCOUNT OF EXPENSES INCURRED FOR EARNING DIVIDEND INCOME BY INVOKING THE PROVISIONS OF SECTION L4A OF THE ACT. THE APPELLANTS CONTEND THAT ON THE FACTS AND IN THE CIR CUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) OUGHT NOT TO HAVE UPHE LD THE ACTION OF THE ASSESSING OFFICER IN DISALLOWING THE AFORESAID AM OUNT OF RS 2,94,880 AS THERE IS NO EXPENDITURE INCURRED IN RELA TION TO EARNING DIVIDEND INCOME AND AS SUCH, NO DISALLOWANCE CAN BE MADE UNDER SECTION 14A. WITHOUT PREJUDICE, THE APPELLANTS CONTEND THAT THE CALC ULATION OF PROPORTIONATE EXPENSES ALLOCATED TO THE EARNING OF E XEMPT INCOME IS NOT IN CONSONANCE WITH THE PROVISIONS OF RULE 8D AND HE NCE, NEEDS TO BE CALCULATED AS PER LAW. 2. THE CIT(A) ERRED IN UPHOLDING THE ACTION OF THE ASSESSING OFFICER IN DISALLOWING A SUM OF RS 15,71,714 ON ACCOUNT OF PROVISION FOR LOSS - ESF ACCOUNT. THE APPELLANTS CONTEND THAT ON THE FACTS AND IN THE CIR CUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) OUGHT NOT TO HAVE UPHE LD THE ACTION OF THE ASSESSING OFFICER IN MAKING THE IMPUGNED DISALLO WANCE OF RS 15,71,714 INASMUCH AS SUCH DISALLOWANCE IS NOT IN AC CORDANCE WITH LAW. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS IN BUSINESS OF TRADING IN SHARES AND SECURITIES. IT WAS OBSERVED BY THE A.O. FROM THE RETURN OF INCOME FILED BY THE ASSESSEE WITH THE REVENUE THAT THE ASS ESSEE HAD NOT MADE ANY DISALLOWANCE U/S 14A OF THE ACT R.W. RULE 8D OF INC OME-TAX RULES, 1962 ITA NO. 538/MUM/2013 & ITA NO. 539/MUM/2013 3 THOUGH THERE WAS DIVIDEND INCOME OF RS. 5,35,539/- EARNED BY THE ASSESSEE AND CLAIMED BY THE ASSESSEE TO BE EXEMPT U/S 10(34) OF THE ACT. THE ASSESSEE WAS ASKED TO EXPLAIN AS TO WHY DISALLOWANCE OUT OF EXPENDITURE SHOULD NOT BE MADE U/S 14A OF THE ACT READ WITH RULE 8D OF THE IN COME-TAX RULES, 1962 WITH RESPECT TO EXPENDITURE INCURRED IN RELATION TO THE EARNING OF INCOME WHICH DOES NOT FORM PART OF TOTAL INCOME. IN REPLY, THE ASSESSEE FURNISHED THE DETAILS AND WORKING AND DISALLOWANCE U/S 14A OF THE ACT CONCEDING IN PRINCIPLE THAT THE DISALLOWANCE HAS TO BE MADE . TH E DISALLOWANCE WAS WORKED OUT BY THE AO AT RS. 2,94,880/- KEEPING IN VIEW PRO VISIONS OF SECTION 14A OF THE ACT READ WITH RULE 8D OF INCOME-TAX RULES, 1962 , VIDE ASSESSMENT ORDER DATED 27.12.2009 PASSED BY THE AO U/S 143(3) OF THE ACT. THE A.O. FURTHER OBSERVED THAT THE BUSINESS OF THE ASSESSEE CONSISTS OF PURCHASE AND SALE OF SHARES. IT WAS OBSERVED BY TH E AO THAT WHILE COMPUTING BUSINESS PROFIT THE ASSESSEE HAD DEBITED AN AMOUNT OF RS. 15,71,714/- AS PROVISION FOR LOSSESF ACCOUNT WHICH AS PER AO IS P ATENTLY IN-ADMISSIBLE, THESE AMOUNTS WERE REDUCED FROM THE BUSINESS LOSS C OMPUTED , VIDE ASSESSMENT ORDER DATED 27-10-2009 PASSED BY THE AO U/S 143(3) OF THE ACT. 4. AGGRIEVED BY THE ASSESSMENT ORDER DATED 27-10-20 09 PASSED BY THE A.O., THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE TH E LD. CIT(A) WHEREIN THE ASSESSEE CONTENDED BEFORE LEARNED CIT(A) THAT FIRST ISSUE IS REGARDING DISALLOWANCE OF EXPENDITURE INCURRED IN RELATION TO EARNING OF INCOME WHICH DOES NOT FORM PART OF TOTAL INCOME AS MANDATED U/S 14A OF THE ACT READ WITH RULE 8D(2)(III) OF THE INCOME-TAX RULES, 1962 THAT NO EXPENDITURE WAS INCURRED IN RELATION TO EARNING OF DIVIDEND INCOME BY THE ASSESSEE AND HENCE, NO DISALLOWANCE CAN BE MADE U/S 14A OF THE ACT. TH E LD. CIT(A) OBSERVED THAT THE A.O. HAS MADE DISALLOWANCE U/S 14A OF THE ACT B Y INVOKING THE PROVISIONS OF RULE 8D(2)(III) OF INCOME-TAX RULES, 1962 , THE DISALLOWANCE WAS UPHELD BY LD. CIT(A). THE LD. CIT(A) RELIED ON THE FOLLOWING CASE LAWS WHILE UPHO LDING ITA NO. 538/MUM/2013 & ITA NO. 539/MUM/2013 4 THE ASSESSMENT ORDER DATED 27-10-2009 PASSED BY THE AO U/S 143(3) OF THE ACT , VIDE APPELLATE ORDER DATED 23-11-2012:- I) SOUTHERN PETRO CHEMICAL INDUSTRIES V. DCIT (2005 ) 93 TTJ (CHENNAI) 161. HELD, EXPENDITURE ATTRIBUTABLE TO EARNING OF D IVIDENDS WHICH ARE EXEMPT UNDER S.10(33)-WHETHER TO INVEST OR NOT TO I NVEST AND WHETHER TO RETAIN THE INVESTMENTS OR TO LIQUIDATE THE SAME ARE VERY STRATEGIC DECISIONS IN WHICH TOP MANAGEMENT IS INVOLVED-SAID DECISION MAKING PROCESS IS VERY COMPLICATED AND REQUIRES VERY CAREF UL ANALYSIS THUS, PROPORTIONATE MANAGEMENT EXPENSES ARE REQUIRED TO B E DEDUCTED WHILE COMPUTING THE DIVIDEND INCOME. II) DCIT V. S. G. INVESTMENTS AND INDUSTRIES LTD (2 004) 89 ITD 44 (CAL), HELD, EXPENDITURE INCURRED BY THE ASSESSEE IN RELAT ION TO INCOME WHICH DOES NOT FORM PART OF THE TOTAL INCOME AS MENTIONED IN SEC.14A HAS TO BE GIVEN A WIDER MEANING AND WOULD INCLUDE BOTH DIR ECT AND INDIRECT RELATIONSHIP BETWEEN THE EXPENDITURE AND EXEMPT INC OME. III) ACIT V. PREMIER CONSOLIDATED CAPITAL TRUST (I) LTD,(2004) 83 TTJ (MUMBAI) 843-HELD, IT IS JUSTIFIABLE TO ATTRIBUTE A PART OF THE FINANCIAL AND ADMINISTRATIVE EXPENSES AS EXPENDITURE INCURRED IN RELATION TO EXEMPTED INCOME AND DISALLOWING THE SAME IN VIEW OF THE PROVISIONS OF SEC.14A OF INCOME-TAX ACT, 1961. IV) ITO V. DAGA CAPITAL MANAGEMENT (P) LTD 119 TTJ (MUM) SB:-HELD, THERE IS NO IOTA OF DOUBT THAT THE INTENTION BEHIND WITH THE EXPRESSION IN RELATION TO IN S.14A IS TO ENCOMPASS NOT ONLY THE DIRECT BUT ALSO INDIRECT EXPENDITURE WHICH HAS ANY RELATION TO THE EXEMPT INCOME. THE RELATION HAS TO BE SEEN BETWEEN THE EXEMPT-INCOME A ND THE EXPENDITURE INCURRED IN RELATION TO IT AND NOT VICE-VERSA. IN O RDER TO ESCAPE TAX APPLICABILITY OF S.14A, ONUS IS ON THE ASSESSEE TO PROVE THAT EXPENDITURE WAS INCURRED FOR EARNING TAXABLE INCOME. WITH RESPECT TO THE SECOND ISSUE, THE LD. CIT(A) OB SERVED THAT DISALLOWANCE HAS BEEN MADE WITH RESPECT TO THE PROV ISION FOR LOSS ON OPEN POSITION IN FUTURES AND OPTIONS TO THE TUNE O F RS. 15,71,714/-, AND THE CALCULATION OF THE SAME ARE AS UNDER:- S NO. SCRIP CONTRACT SIZE NO. OF LOTS DATE OF PURCHASE RATE RATE AS ON 31.3.07 DIFFERENCE PROFIT/LOSS ITA NO. 538/MUM/2013 & ITA NO. 539/MUM/2013 5 1 GUJARAT AMBUJA 2062 245 23.03.07 110.28 GUJARAT AMBUJA 2062 243 29.03.07 104.07 TOTAL 488 107.19 105.65 (1.54) (1,547,098) 2 RELIANCE 150 160 29.03.07 1369.13 1368.1 (1.03) ( 24,616) THE LD. CIT(A) RELIED UPON CBDT INSTRUCTION NO. 3 O F 23.03.2010 AND OBSERVED THAT SINCE THE PROVISION IS A MERE NOTIONA L LOSS, THE SAME IS NOT ALLOWABLE , HENCE LEARNED CIT(A) DISMISSED THE APPE AL OF THE ASSESSEE BY AFFIRMING THE ADDITION MADE IN THE ASSESSMENT ORDE R DATED 27.10.2009 PASSED BY THE AO U/S 143(3) OF THE ACT, VIDE APPELL ATE ORDER DATED 23.11.2012 PASSED BY LEARNED CIT(A). 5. AGGRIEVED BY THE APPELLATE ORDER DATED 23.11.201 2 PASSED BY THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 6. NONE APPEARED ON BEHALF OF THE ASSESSEE, HENCE, WE PROCEED TO DISPOSE OF THE APPEAL AFTER HEARING LD. D.R. . WE HAVE OBSERVED THAT THIS APPEAL HAS BEEN FIXED F ROM TIME TO TIME SINCE APRIL 2014. THE COUNSELS WHO WERE APPOINTED BY THE ASSESSEE TO ARGUE THIS APPEAL ARE ALL QUALIFIED CHARTERED ACCOUNTANTS NAME LY CA RAJIV KHANDELWAL, CA NEELKANTH KHANDELWAL AND CA. HETAL PANCHAL . THE SAID CHARTERED ACCOUNTANTS WERE APPOINTED BY THE ASSESSEE COMPANY VIDE POWER OF ATTORNEY DATED 18 TH MARCH, 2014 EXECUTED IN FAVOUR OF THESE CHARTERED ACCOUNTANTS, WHICH IS PLACED IN FILE . THE SAID CHARTERED ACCOUN TANTS DULY ACCEPTED THE APPOINTMENT ON 18-03-2014 ITSELF TO ATTEND TO THIS APPEAL BEFORE THE TRIBUNAL. WE HAVE OBSERVED THAT SAID COUNSELS HAVE SOUGHT AD JOURNMENTS ON ONE PRETEXT OR ANOTHER FROM TIME TO TIME OR THEY HAVE N OT ATTENDED THE HEARING ON THE DATES FIXED FOR HEARING BY THE TRIBUNAL , WHICH WE WILL EXPLAIN IN DETAILS HEREINAFTER. WE HAVE OBSERVED THAT ON 01-12-2014, THE ADJOURNMENT WAS ITA NO. 538/MUM/2013 & ITA NO. 539/MUM/2013 6 SOUGHT ON THE GROUND THAT CA NEELKANTH KHANDELWAL, WHO IS BRIEFED IN THE MATTER HAS TO ATTEND MARRIAGE IN FAMILY ON 01-12-20 14 (LETTER OF ADJOURNMENT DATED 01-12-2014 PLACED IN FILE). THE ADJOURNMENT WAS GRANTED BY TRIBUNAL AND MATTER WAS FIXED FOR HEARING ON 07-01-2015. TH EN , AGAIN ON 16-09- 2015, LETTER OF ADJOURNMENT DATED 16-09-2105 WAS FI LED ON THE PRETEXT THAT CA RAJIV KHANDELWAL, WHO IS BRIEFED IN THE MATTER H AS TWISTED HIS ANKLE AND HAS BEEN ADVISED REST FOR A DAY, LETTER OF ADJOURNM ENT IS PLACED IN FILE. THE TRIBUNAL AGAIN ACCEDED TO THE REQUEST FOR ADJOURNME NT OF THE COUNSEL OF THE ASSESSEE AND ADJOURNMENT WAS GRANTED BY THE TRIBUNA L AND MATTER WAS FIXED FOR HEARING FOR 18.11.2015. THEREAFTER, AGAIN ON 4 -01-2016, LETTER OF ADJOURNMENT DATED 04-01-2016 WAS FILED ON THE GROUN D THAT CA RAJIV KHANDELWAL WHO IS BRIEFED ON THE MATTER IS ON VACA TION, LETTER OF ADJOURNMENT IS PLACED IN FILE. THE TRIBUNAL AGAIN ACCEDED TO T HE REQUEST FOR ADJOURNMENT OF THE ASSESSEES COUNSEL AND MATTER WAS FIXED FOR HEA RING ON 15-02-2016. AGAIN ON 15-02-2016 WHEN THE MATTER WAS CALLED FOR HEARING, LETTER OF ADJOURNMENT DATED 11-2-2016 WAS ALREADY FILED WITH REGISTRY ON 11-02-2016 BY ASSESSEES COUNSEL SEEKING ADJOURNMENT ON THE PR ETEXT THAT CA NEELKANTH KHANDELWAL WHO IS BRIEFED IN THE MATTER IS ON VACAT ION, LETTER OF ADJOURNMENT IS PLACED IN FILE. THE TRIBUNAL AGAIN ACCEDED TO TH EIR REQUEST OF ADJOURNMENT AND THE MATTER WAS FIXED FOR HEARING ON 09-05-2016, LETTER OF ADJOURNMENT IS PLACED IN FILE. SIMILARLY, WE HAVE ALSO PAINFULLY O BSERVED AND NOTED FROM ORDER SHEET ENTRIES IN FILE THAT THERE WAS NON-COMPLIANCE S AND NON APPEARANCES BY RESPECTIVE COUNSELS ON THE DATES OF HEARING HELD ON 08-06-2015, 12-08-2015, 25-05-2016, 22-06-2016, 21-07-2016, 19-09-2016 AND 13-12-2016, WHEREIN NONE ATTENDED ON BEHALF OF ASSESSEES COUNSEL NOR A NY APPLICATION FOR ADJOURNMENT WAS MOVED BEFORE THE TRIBUNAL. THUS, F ROM THE ABOVE, IT IS EVIDENTLY CLEAR THAT THE COUNSELS OF THE ASSESSEE H AVE ACCEPTED THE ENGAGEMENTS/APPOINTMENT TO REPRESENT ASSESSEE BEFOR E THE TRIBUNAL VIDE POWER OF ATTORNEY DATED 18 TH MARCH, 2014 BUT THEY HAVE CONDUCTED THE APPEARANCES AND COMPLIANCES BEFORE THE TRIBUNAL IN A VERY LAX AND CASUAL ITA NO. 538/MUM/2013 & ITA NO. 539/MUM/2013 7 MANNER WHICH IS NOT EXPECTED FROM THE SENIOR COUNSE LS WHO ARE QUALIFIED PROFESSIONALS. WE ARE PAINED TO WRITE THESE LAX AND CASUAL APPROACH ON THE PART OF THE COUNSEL OF THE ASSESSEE BUT AT THE SAME TIME WE SINCERELY HOPE AND BELIEVE THAT THE ASSESSEE AS WELL AS THE COUNSE LS WILL TAKE THIS MATTER OF NON-APPEARANCES BEFORE THE TRIBUNAL IN A TRUE AND R IGHT SPIRIT SO THAT THERE COULD BE EARLY AND QUICK DISPENSATION OF JUSTICE WH ICH IS MANDATE OF THE TRIBUNAL. THE SAID FREQUENT ADJOURNMENTS ON FRIVOLO US GROUNDS OR NON- APPEARANCES OF THE ASSESSEE OR ITS COUNSELS COST TI ME AND RESOURCES OF THE COUNTRY. IF COUNSELS AFTER ACCEPTING APPOINTMENT DO ES NOT WANT TO REPRESENT THE ASSESSEE BEFORE THE TRIBUNAL DUE TO ANY REASON WHATSOEVER, THEN AS PER ESTABLISHED STANDARDS AND PROCEDURES, THEY SHOULD M AKE A REQUEST BEFORE THE TRIBUNAL TO WITHDRAW THEIR POWER OF ATTORNEY WITH C OPY TO ASSESSEE INSTEAD OF CONTINUING WITH SUCH APPEALS . WE HOPE THAT OUR COM MENTS WILL BE TAKEN IN TRUE SPIRIT BY LEARNED COUNSELS AND THEY WILL ENSUR E DUE COMPLIANCE AT THE TIME OF HEARING BEFORE THE TRIBUNAL AND HELP IN QUI CK DISPOSAL OF THE APPEALS BY THE TRIBUNAL. 7. THE LD. D.R. SUBMITTED THAT THE ASSESSEE HAS EAR NED DIVIDEND AMOUNT OF RS. 5,35,539/- WHICH HAS BEEN CLAIMED TO BE EXEM PT U/S 10(34) OF THE ACT. THE A.O. DISALLOWED AN AMOUNT OF RS. 2,94,880/- BY INVOKING PROVISIONS OF SECTION 14A OF THE ACT R.W.R. 8D(III) OF INCOME-TAX RULES, 1962 WHICH HAS BEEN LATER UPHELD BY THE LD. CIT(A). 8. WE HAVE HEARD LD. D.R. AND PERUSED THE MATERIAL PLACED ON RECORD. WE HAVE OBSERVED THAT THE IMPUGNED ASSESSMENT YEAR IS ASSESSMENT YEAR 2007- 08. THE AO HAS INVOKED SECTION 14A READ WITH RULE 8 D OF INCOME-TAX RULES, 1962 FOR MAKING DISALLOWANCE OF EXPENDITURE INCURRE D TOWARDS EARNING OF EXEMPT INCOME. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF GODREJ & BOYCE MFG. CO. LTD. V. DCIT, (2010) 328 ITR 81(BOM. ) HAS HELD THAT RULE 8D OF INCOME-TAX RULES, 1962 CAN BE INVOKED FOR ASSESS MENT YEAR 2008-09 AND ITA NO. 538/MUM/2013 & ITA NO. 539/MUM/2013 8 ONWARDS AND HENCE RULE 8D OF RULES OF 1962 CANNOT B E INVOKED FOR ASSESSMENT YEAR 2007-08 FOR MAKING DISALLOWANCE OF EXPENDITURE INCURRED TOWARDS EARNING OF EXEMPT INCOME . REASONABLE DISAL LOWANCE HAS TO BE MADE FOR ASSESSMENT YEAR 2007-08 KEEPING IN VIEW PROVISI ONS OF SECTION 14A OF THE ACT IN ACCORDANCE WITH MANDATE OF SECTION 14A(2) O F THE ACT TO DISALLOW EXPENDITURE INCURRED IN RELATION TO EARNING OF EXEM PT INCOME HAVING REGARD TO THE ACCOUNTS OF THE ASSESSEEE. WE HAVE OBSERVED TH AT THE ASSESSEE HAS EARNED DIVIDEND INCOME OF RS. 5,35,539/- WHICH WAS CLAIMED AS EXEMPT INCOME U/S. 10(34) OF THE ACT. THE ASSESSEE AS WELL A.O. HAS NOT UNDERTAKEN ANY EXERCISE TO WORK OUT THE DISALLOWANCE HAVING RE GARD TO THE ACCOUNTS OF THE ASSESSEE AND THE AO MERELY APPLIED RULE 8D OF I NCOME-TAX RULES, 1962 IN AN MECHANICAL MANNER WHICH RULE 8D OF RULES OF 196 2 CANNOT BE APPLIED FOR THE ASSESSMENT YEAR 2007-08 AND EARLIER YEARS IN VI EW OF HONBLE BOMBAY HIGH COURT DECISION IN THE CASE OF GODREJ AND BOYCE MANUFACTURING COMPANY LIMITED(SUPRA). THE ASSESSEE HAS NOT SUBMITTED ANY DETAILS OF THE EXPENSES INCURRED IN RELATION TO EARNING OF DIVIDEND INCOME , AND INSTEAD CLAIMED THAT NO EXPENDITURE HAS BEEN INCURRED WHICH COULD BE AT TRIBUTABLE TO THE EARNING OF EXEMPT INCOME. IN OUR CONSIDERED VIEW KEEPING IN VIEW FACTS AND CIRCUMSTANCES OF THE CASE, THE MATTER NEEDS TO BE S ET ASIDE AND RESTORED TO THE FILE OF THE A.O. FOR DECIDING THIS ISSUE DE-NOV O ON MERITS IN ACCORDANCE WITH MANDATE OF SECTION 14A OF THE ACT. THE ASSESS EE IS DIRECTED TO PRODUCE ALL NECESSARY DETAILS OF EXPENSES INCURRED FOR EARN ING DIVIDEND INCOME U/S 10(34) OF THE ACT AND OTHER EVIDENCES/EXPLANATIONS IN ITS DEFENSE AND ALSO TO ENABLE A.O. TO MAKE THE DISALLOWANCE OF EXPENDITURE INCURRED IN RELATION TO EARNING OF EXEMPT INCOME IN ACCORDANCE WITH MANDATE OF SECTION 14A OF THE ACT . THE ASSESSEE IS ENGAGED IN BUSINESS OF DEALIN G IN SHARES AND STOCKS. WE SHALL ALSO CLARIFY THAT THE INVESTMENT WILL NOT INC LUDE STOCK-IN-TRADE, WHILE COMPUTING DISALLOWANCE OF EXPENDITURE U/S 14A OF TH E ACT.WE ORDER ACCORDINGLY. ITA NO. 538/MUM/2013 & ITA NO. 539/MUM/2013 9 9. WITH RESPECT TO THE SECOND ISSUE, THE LD. D.R. S UBMITTED THAT THE ASSESSEE HAS CLAIMED LOSS ON OPEN POSITION IN FUTUR ES AND OPTIONS TO THE TUNE OF RS. 15,71,714/- BEING MARKED TO MARKET LOSS. I T IS SUBMITTED THAT THESE ARE NOTIONAL LOSSES WHICH CANNOT BE ALLOWED. IT WA S ALSO STATED THAT APART FROM BUSINESS LOSSES , THE ASSESSEE ALSO HAD EARNED SPECULATION PROFITS TO THE TUNE OF RS. 18.68 LACS . THE LD. D.R. FURTHER RELIE D UPON THE ORDER OF THE LD. CIT(A). 10. WE HAVE HEARD LD. D.R. AND PERUSED THE ORDERS O F AUTHORITIES BELOW AND MATERIAL ON RECORD. WE HAVE OBSERVED THAT THE ASSES SEE HAS ENTERED INTO FUTURES AND OPTIONS TRANSACTIONS IN THE SHARES WHER EBY CONTRACTS HAVE BEEN TAKEN W.R.T. GUJARAT AMBUJA CEMENT LIMITED AND REL IANCE INDUSTRIES LIMITED WHEREIN MARKED TO MARKET LOSSES AMOUNTING TO RS. 15 ,71,714/- HAS BEEN CLAIMED AS BUSINESS LOSS BY THE ASSESSEE. IN OUR C ONSIDERED VIEW, SECTION 43(5) OF THE ACT HAS BEEN AMENDED BY FINANCE ACT, 2 005 W.E.F. 1.4.2006 WHEREIN CLAUSE (D) IS INSERTED TO SECTION 43(5) OF THE ACT WHEREIN ELIGIBLE TRANSACTIONS IN RESPECT OF TRADING IN DERIVATIVES R EFERRED TO IN CLAUSE (AC) OF SECTION 2 OF THE SECURITIES CONTRACT (REGULATION) A CT, 1956 CARRIED OUT IN A RECOGNIZED STOCK EXCHANGE IS CARVED OUT OF SPECULAT IVE TRANSACTIONS . EXPLANATION 1 TO SECTION 43(5) OF THE ACT IS ALSO A DDED WHEREIN ELIGIBLE TRANSACTION IS DEFINED. THE SAID SECTION 43(5)(D) O F THE ACT READ WITH EXPLANATION 1 AS APPLICABLE FOR RELEVANT ASSESSMENT YEAR IS REPRODUCED HEREUNDER: DEFINITIONS OF CERTAIN TERMS RELEVANT TO INCOME FR OM PROFITS AND GAINS OF BUSINESS OR PROFESSION. 43. IN SECTIONS 28 TO 41 AND IN THIS SECTION, UNLESS THE CONTEXT OTHERWISE REQUIRES **** **** ITA NO. 538/MUM/2013 & ITA NO. 539/MUM/2013 10 [(D) AN ELIGIBLE TRANSACTION IN RESPECT OF TRADING IN DERIVATIVES REFERRED TO IN CLAUSE A [ (AC) ] OF SECTION 2 OF THE SECURITIES CONTRACTS (REGULATI ON) ACT, 1956 (42 OF 1956) CARRIED OUT IN A RECOGNISED STOCK EXCHANGE ;] SHALL NOT BE DEEMED TO BE A SPECULATIVE TRANSAC TION; **** **** [EXPLANATION.FOR THE PURPOSES OF THIS CLAUSE, THE EXPRESSIONS (I) ELIGIBLE TRANSACTION MEANS ANY TRANSACTIO N, (A) CARRIED OUT ELECTRONICALLY ON SCREEN-BASED S YSTEMS THROUGH A STOCK BROKER OR SUB-BROKER OR SUCH OTHER INTERMEDIARY REGISTERED UNDER SECTION 12 OF THE SECURITIES AND E XCHANGE BOARD OF INDIA ACT, 1992 (15 OF 1992) IN ACCORDANCE WITH THE PROVISIONS OF THE SECURITIES CONTRACTS (REGULATION) ACT, 1956 (42 OF 1956) OR THE SECURITIES AND EXCHANGE BOARD OF INDIA ACT, 1992 (15 OF 1992) OR THE DEPOSITORIES ACT, 1996 (22 OF 1996) AN D THE RULES, REGULATIONS OR BYE-LAWS MADE OR DIRECTIONS ISSUED U NDER THOSE ACTS OR BY BANKS OR MUTUAL FUNDS ON A RECOGNISED ST OCK EXCHANGE; AND (B) WHICH IS SUPPORTED BY A TIME STAMPED CONTRAC T NOTE ISSUED BY SUCH STOCK BROKER OR SUB-BROKER OR SUCH OTHER IN TERMEDIARY TO EVERY CLIENT INDICATING IN THE CONTRACT NOTE THE UN IQUE CLIENT IDENTITY NUMBER ALLOTTED UNDER ANY ACT REFERRED TO IN SUB-CLAUSE (A) AND PERMANENT ACCOUNT NUMBER ALLOTTED UNDER THI S ACT; (II) RECOGNISED STOCK EXCHANGE MEANS A RECOGNISED STOCK EXCHANGE AS REFERRED TO IN CLAUSE (F) OF SECTION 2 OF THE SECURITIES CONTRACTS (REGULATION) ACT, 1956 (42 OF 1956) AND WHICH FULFILS SUCH CONDITIONS AS MAY BE PRESCRIBE D AND NOTIFIED BY THE CENTRAL GOVERNMENT FOR THIS PURPOSE;] THUS, THE ELIGIBLE TRANSACTIONS ARE CARVED OUT OF SPECULATIVE TRANSACTIONS VIDE INSERTION OF CLAUSE (D) TO SECTION 43(5) OF THE ACT BY FINANCE ACT, 2005 W.E.F. 01-04-2006. HENCE, THE MATTER NEEDS TO BE SET ASI DE TO THE FILE OF THE A.O. FOR THE DENOVO DETERMINATION OF THE ISSUE ON MERITS FOR VERIFYING WHETHER THE SAID TRANSACTIONS CARRIED OUT BY THE ASSESSEE FALLS WITHIN THE MANDATE OF SECTION 43(5)(D) OF THE ACT READ WITH EXPLANATION 1 TO BE COVERED AS BUSINESS LOSS VIS--VIS SPECULATIVE LOSS AND THE ASSESSEE IS DIRECTED TO PRODUCE ALL ITA NO. 538/MUM/2013 & ITA NO. 539/MUM/2013 11 RELEVANT COGENT EVIDENCES AND EXPLANATIONS TO SUPPO RT ITS CONTENTION. THE ASSESSEE IS IN BUSINESS OF TRADING IN SHARES AND ST OCKS. THE MARKED TO MARKET LOSS ARISING OUT OF DERIVATIVE CONTRACT ENTE RED INTO BY THE ASSESSEE SHALL BE ALLOWED ARISING DUE TO ADVERSE MOVEMENT O F SHARE PRICES ON THE LAST DATE OF PREVIOUS YEAR. REFERENCE MAY BE DRAWN TO TH E DECISION OF THE MUMBAI BENCHES OF THE TRIBUNAL IN THE CASE OF INVENTURUS K NOWLEDGE SERVICES (P.) LTD. V. ITO (2016)156 ITD 727(MUM.-TRIB), WHEREIN THE TR IBUNAL ALLOWED MARKED TO MARKET LOSSES BY HOLDING AS UNDER: 9. THUS IN VIEW OF OUR ABOVE FOREGOING DISCUSSIONS, W E ALLOW THE APPEAL OF THE ASSESSEE COMPANY ON FOLLOWING REASONS: 1. THAT THE ASSESSEE COMPANY HAS ENTERED INTO DERIVATI VE TRANSACTIONS IN FOREIGN CURRENCY THROUGH RECOGNISED STOCK EXCHANGE AND HAS COMPLIED WITH THE OTHER CONDITIONS AS STIPULATED IN SECTION 43(5) READ WITH PROVISO(D ) AND EXPLANATION 1 TO THE SAID SECTION 43(5) OF THE ACT FOR WHICH COGENT MATERIAL IS BROUGHT ON RECORD. 2. THAT THE CONTRACT FOR DERIVATIVES IN FOREIGN CURREN CY ARE COMMODITY AS DEFINED U/S 43(5) OF THE ACT, THE UNDERLYING ASSET BEING FOREIGN CUR RENCY AND ARE HENCE ENTITLED FOR EXEMPTION FROM BEING TREATED AS SPECULATIVE PROVIDE D ALL OTHER CONDITIONS AS STIPULATED U/S 43(5) ARE COMPLIED WITH. 3. A BINDING OBLIGATION ACCRUED AGAINST THE ASSESSEE T HE MINUTE IT ENTERED INTO CONTRACT FOR DERIVATIVE IN FOREIGN CURRENCY 4. A LIABILITY IS SAID TO HAVE CRYSTALLIZED WHEN A PEN DING OBLIGATION ON THE BALANCE SHEET DATE IS DETERMINABLE WITH REASONABLE CERTAINTY. THE CONSIDERATIONS FOR ACCOUNTING THE INCOME ARE ENTIRELY ON DIFFERENT FOOTING. 5. AS PER AS-11, WHEN THE TRANSACTION IS NOT SETTLED I N THE SAME ACCOUNTING PERIOD AS THAT IN WHICH IT OCCURRED, THE EXCHANGE DIFFERENCE ARISES OVER MORE THAN ONE ACCOUNTING PERIOD. 6. THE CONTRACT FOR DERIVATIVE IN FOREIGN CURRENCY HAV E ALL THE TRAPPINGS OF STOCK-IN-TRADE. 7. IN THE ULTIMATE ANALYSIS, THERE IS NO REVENUE EFFEC T AND IT IS ONLY THE TIMING OF TAXATION OF LOSS/PROFIT AND IN CASE THE DERIVATIVE CONTRACT IS SQUARED OFF/SETTLED IN THE SUCCEEDING YEAR, THE DIFFERENCE IN LOSS/PROFIT WILL BE BROUGHT TO TAX IN THE SUCCEEDING ASSESSMENT YEAR AND HENCE ITS ALLOWABILITY IN THE CURRENT YEAR IS T AX NEUTRAL. HENCE, WE ORDER THAT LOSS OF RS. 1,09,98,560/- INCU RRED BY THE ASSESSEE COMPANY ON THE CONTRACT FOR TRANSACTION IN UN-EXPIR ED CONTRACTS AS ON THE DATE OF BALANCE SHEET AS AT 31ST MARCH 2009 IN DERIVATIV ES IN FOREIGN CURRENCY ITA NO. 538/MUM/2013 & ITA NO. 539/MUM/2013 12 COMPLIES WITH THE PROVISIONS OF SECTION 43(5) OF TH E ACT READ WITH PROVISO (D) AND EXPLANATION 1 OF THE SECTION 43(5) OF THE ACT A ND IS EXEMPT TO BE CATEGORISED AS SPECULATION LOSS AND FURTHER HOLD TH AT THE SAID LOSS AS AT THE DATE OF FINANCIAL STATEMENT AS AT 31ST MARCH 2009 ARISIN G DUE TO ADVERSE MOVEMENT IN EXCHANGE RATE BETWEEN UNITED STATES DOLLARS VIS- A-VIS IN RELATION TO INDIAN RUPEE AS ON THE DATE OF BALANCE SHEET AS AT 31ST MA RCH 2009 IS NOT A NOTIONAL OR CONTINGENT LOSS RATHER IT IS A ASCERTAINED LIABI LITY WHICH HAS CRYSTALLIZED ON THE DATE OF BALANCE SHEET AS AT 31ST MARCH 2009 AND CAN BE COMPUTED WITH REASONABLE CERTAINTY AND ACCURACY, HENCE ALLOWABLE AS NON-SPECULATION LOSS. WE ORDER ACCORDINGLY. THE AO IS ALSO DIRECTED TO VERIFY THAT THE SAID MA RKED TO MARKET LOSSES SO ALLOWED TO THE ASSESSEE ARE DULY FACTORED / REFLECT ED BY WAY OF REDUCTION IN THE OPENING STOCK OF DERIVATIVE CONTRACT VALUATION FOR THE SUCCEEDING YEAR SO THAT THERE IS NO DUPLICITY IN CLAIMING THE SAID LOS S BY THE ASSESSEE IN THE IMMEDIATELY SUCCEEDING YEAR WHEN THE SAID DERIVATIV E CONTRACTS ARE FINALLY CONCLUDED/COMPLETED. IN THE RESULT, APPEAL OF THE A SSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. WE ORDER ACCORDINGLY. 11. IN THE RESULT, APPEALS OF THE ASSESSEE IN ITA N O. 538/MUM/2013 FOR ASSESSMENT YEAR 2008-09 IS ALLOWED FOR STATISTICAL PURPOSES AS INDICATED ABOVE. NOW, WE SHALL TAKE UP ASSESSEES APPEAL IN ITA NO. 539/MUM/2013 FOR ASSESSMENT YEAR 2008-09. 12. THE FOLLOWING GROUNDS OF APPEAL HAVE BEEN RAISE D BY THE ASSESSEE IN THIS APPEAL:- 1. THE COMMISSIONER OF INCOME-TAX (APPEALS) - 5, M UMBAI (HEREINAFTER REFERRED TO AS THE CIT(A)) ERRED IN UP HOLDING THE ACTION OF THE INCOME-TAX OFFICER - 2(2)(1), MUMBAI (HEREINAFTER REFERRED TO AS THE ASSESSING OFFICER) IN DISALLOWIN G A SUM OF ITA NO. 538/MUM/2013 & ITA NO. 539/MUM/2013 13 87,56,848 ON ACCOUNT OF EXPENSES INCURRED FOR EARNI NG DIVIDEND INCOME BY INVOKING THE PROVISIONS OF SECTION 14A RE AD WITH RULE 8D OF THE ACT. THE APPELLANTS CONTEND THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) OU GHT NOT TO HAVE UPHELD THE ACTION OF THE ASSESSING OFFICER IN DISALLOWING THE AFORESAID AMOUNT OF RS. 87,56,848 INASMUCH AS THE S AME IS NOT IN ACCORDANCE WITH THE PRESCRIPTION OF SECTION 14A READ WITH RULE 8D OF THE ACT. WITHOUT PREJUDICE, THE APPELLANTS CONTEND THAT THE CALCULATION OF PROPORTIONATE EXPENSES ALLOCATED TO THE EARNING OF EXEMPT INCOME IS NOT IN CONSONANCE WITH THE PROVISIONS OF RULE 8D AND HENCE, NEEDS TO BE CALCULATED AS PER LAW. 2. THE CIT(A) ERRED IN UPHOLDING THE OBSERVATION OF THE ASSESSING OFFICER THAT SHORT-TERM CAPITAL GAINS OF RS. 67,27,044 IS BUSINESS INCOME. THE APPELLANTS CONTEND THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ACTION OF THE CIT(A) IN UPHOLDING THE OBSERVATION OF THE ASSESSING OFFICER IN HOLDING THE IMPUGNED CAPITAL GAINS ARISING ON SALE OF SHORT-TER M CAPITAL ASSETS AS BUSINESS INCOME IS NOT TENABLE IN LAW. 3. THE CIT(A) ERRED IN UPHOLDING THE ACTION OF THE ASSESSING OFFICER IN DISALLOWING A SUM OF RS. 56,916 ON ACCOU NT OF PROVISION FOR LOSS - ESF ACCOUNT. THE APPELLANTS CONTEND THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) OU GHT NOT TO HAVE UPHELD THE ACTION OF THE ASSESSING OFFICER IN MAKING THE IMPUGNED DISALLOWANCE OF RS. 56,916 INASMUCH AS SUC H DISALLOWANCE IS NOT IN ACCORDANCE WITH LAW AND GENE RALLY ACCEPTED ACCOUNTING PRINCIPLES. 4. THE CIT(A) ERRED IN UPHOLDING THE ACTION OF THE ASSESSING OFFICER IN CHARGING INTEREST OF RS. 63,769 AND RS.7 ,01,460 UNDER SECTIONS 234A AND 234B OF THE ACT. ITA NO. 538/MUM/2013 & ITA NO. 539/MUM/2013 14 THE APPELLANTS CONTEND THAT THE CIT(A) OUGHT NOT TO HAVE UPHELD THE ACTION OF THE ASSESSING OFFICER IN CHARGING INT EREST UNDER SECTION 234A INASMUCH AS THE RETURN OF INCOME HAS B EEN FILED WITHIN THE TIME PRESCRIBED BY SECTION 139(1) OF THE ACT. THE APPELLANTS FURTHER, CONTEND THAT THE CIT(A) OUG HT NOT TO HAVE UPHELD THE ACTION OF THE ASSESSING OFFICER IN CHARG ING INTEREST UNDER SECTIONS 234A AND 234B INASMUCH AS - (A) THE ASSESSING OFFICER HAS NOT GIVEN AN OPPORTUN ITY TO THE APPELLANTS BEFORE CHARGING THE SAID INTEREST AS REQUIRED BY THE PRINCIPLES OF NATURE JUSTICE, (B) THE CHARGING OF INTEREST IS NOT IN ACCORDANCE W ITH LAW. 13. IT WAS OBSERVED BY THE A.O. THAT THE ASSESSEE H AS EARNED DIVIDEND INCOME OF RS. 16,07,123/- WHICH WAS CLAIMED EXEMPT U/S 10(34) OF THE ACT. THE ASSESSEE DID NOT DISALLOWED ANY AMOUNT OF EXPEN SES FOR EARNING OF THE DIVIDEND INCOME AS CONTEMPLATED U/S 14A OF THE ACT. THE ASSESSEE WAS ASKED BY THE AO TO FURNISH WORKING OF THE DISALLOWA NCE U/S 14A OF THE ACT READ WITH RULE 8D OF RULES OF 1962. IN REPLY, THE ASSESSEE SUBMITTED DETAILED EXPLANATION STATING THAT THERE WERE NO DIRECT OR IN DIRECT OR COMMON EXPENSES DEBITED TO THE P&L ACCOUNT RELATED TO EARNING OF DI VIDEND INCOME. IT WAS ALSO SUBMITTED BY THE ASSESSEE THAT FOR THE PURPOSE OF C ALCULATION OF DISALLOWANCE UNDER RULE 8D(2) OF RULES OF 1962, THE INVESTMENT W ILL NOT INCLUDE STOCK-IN- TRADE. HOWEVER, THE A.O. DID NOT AGREE WITH THE CO NTENTIONS OF THE ASSESSEE AND WORKED OUT THE DISALLOWANCE U/S 14A OF THE ACT R.W.R. 8D OF RULES OF 1962 AS UNDER:- PARTICULARS AMOUNT RS) AMOUNT (RS) I) DIRECT EXPENDITURE RELATING TO EXEMPT INCOME 46,491 II) AMOUNT COMPUTED AS PER RULE 8D(2) [A X B/C] A = INTEREST EXPENSES B = AVERAGE INVESTMENT 5,37,73,185 9,35,64,244 ITA NO. 538/MUM/2013 & ITA NO. 539/MUM/2013 15 C = AVERAGE TOTAL ASSET 61,04,00,400 82,42,546 III) 0.5% OF AVERAGE INVESTMENT 4,67,821 TOTAL DISALLOWANCE U/S 14A AS PER RULE 8D(2) 87,56,848 THE DISALLOWANCE U/S 14A OF THE ACT OF 1961 WAS WOR KED OUT BY THE AO AT RS. 87,56,848/- AND ADDED BACK TO THE TOTAL INCOME OF T HE ASSESSEE, VIDE ASSESSMENT ORDER DATED 29-12-2010 PASSED BY THE AO U/S 143(3) OF THE ACT. 14. THE A.O. FURTHER OBSERVED THAT ASSESSEE HAS ,IN TER-ALIA, SHOWN SHORT TERM CAPITAL GAIN OF RS. 67,27,044/- TAXABLE AT SPECIAL RATE I.E. 10%. IT WAS HELD BY THE A.O. THAT THESE TRANSACTIONS ARE CONSIDERED TO BE BUSINESS INCOME BY AO WHILE FRAMING ASSESSMENT U/S 143(3) OF THE ACT FOR ASSESSMENT YEAR 2006-07 AND 2007-08, VIDE ASSESSMENT ORDER DATED 29-12-2010 PASSED BY THE AO FOR ASSESSMENT YEAR 2008-09. 15. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFOR E THE LD. CIT(A) WITH RESPECT TO AFORESAID TWO ISSUES , WHO UPHELD THE DI SALLOWANCE OF EXPENDITURE INCURRED FOR EARNING EXEMPT INCOME U/S 14A OF THE ACT AS MADE BY THE A.O. BY HOLDING AS UNDER:- GROUND NO. 2 : DISALLOWANCE U/S 14A R.W.R. 8D(2)(I) (II) & (III) RS. 46491/- /RS. 8242536/- / RS. 4,67,821/- RESPECT IVELY THE AO HAD DISALLOWED AN AMOUNT OF RS. 8756848/- U/ S 14A R.W.R. 8D (I)(II)&(III) - RS. 46491/-, RS. 82,42,53 6/- AND RS.4,67,821/- RESPECTIVELY. (A) AMOUNT DIRECTLY RELATABLE TO EARNING EXEMPT DIV IDEND INCOME AMOUNTING TO RS. 46,491/- IS CLEARLY DISALLOWABLE U /S 14A R.W.R. 8D(2)(I). THE DISALLOWANCE OF RS. 46,491/- IS THERE FORE UPHELD. (B) IN R/O OF DISALLOWANCE OF RS. 82,42,536/- U/S 1 4A R.W.R. 8D(II) ITA NO. 538/MUM/2013 & ITA NO. 539/MUM/2013 16 THE FINANCIAL RESULTS ARE AS UNDER: 31-03-2008 31-03-2007 UNSECURED LOANS 821,088,103 214,862,723 INVESTMENT 170,838,962 16,289,526 TOTAL SHARE HOLDER FUNDS 77,232,291 85,3057,709 THE DETAILS OF UNSECURED LOANS ON WHICH INTEREST IS PAID IS AS UNDER: INDIABULLS SERVICES LTD. RS.492,551,415 ESQUIRE PVT. LTD., RS. 27,730,413 A PERUSAL OF THE AFORESAID FACTS CLEARLY REVEALS THAT THOUGH THE INVESTMENT HAVE INCREASED FROM RS. 1.62 CRS TO RS. 17.08 CRS, THE SHARE HOLDERS FUNDS HAVE DECREASED FROM RS. 8.5 CRS TO RS. 7.72 CRS. ON THE OTHER HAND, UNSECURED LOANS CARRYING IN TEREST HAVE INCREASED. THE APPELLANT WAS ASKED THAT SINCE THERE WERE NO SURPLUS FUNDS FOR INVESTMENTS IN SECURITIES INCOME FROM WHICH IS EXEMPT - WHY THE DISALLOWANCE U/S 14A R.W.R. 8D(2)(II) SHOULD NO T BE MADE? THE APPELLANT COULD NOT PRODUCE THE BANK STATEMENT TO S HOW THAT ON THE DATE OF INVESTMENTS IN SECURITIES HAVING TAX FR EE INCOME - THE APPELLANT WAS HAVING SURPLUS FUNDS. UNDER THE OVERALL FACTS AND CIRCUMSTANCES OF THE CASE, THE APPELLANT HAS FAILED TO DISCHARGE ITS ONUS THAT INT EREST FREE FUNDS HAVE NOT BEEN USED FOR INVESTMENTS IN SECURITIES IN COME FROM WHICH IS EXEMPT. THE DISALLOWANCE MADE BY THE AO AS PER SEC.14A R. W.R. 8D(2)(II) IS THEREFORE CALLED FOR. THE DISALLOWANCE OF RS. 82,42,536/- MADE BY THE A O IS THEREFORE UPHELD. (C) DISALLOWANCE U/S 14A R.W.R. 8D(2)(III) - RS. 4, 67,821/- ITA NO. 538/MUM/2013 & ITA NO. 539/MUM/2013 17 THE APPELLANT HAS SUBSTANTIAL AMOUNT OF INVESTMEN TS IN SECURITIES INCOME FROM WHICH IS EXEMPT. BESIDES, TH E APPELLANT IS ALSO HAVING PURCHASES AND SALES OF SECURITIES, DIVI DEND INCOME FROM WHICH IS EXEMPT, WHICH IS BEING SHOWN BY THE A PPELLANT AS STOCK IN TRADE. THE SAME IS ALSO COVERED U/S 14A R. W.R. 8D(2)(III). UNDER THESE FACTS AND CIRCUMSTANCES THE DISALLOWA NCE MADE BY THE AO U/S 14A R.W.R. 8D(2)(III) IS CALLED FOR. THI S VIEW HAS ALSO BEEN UPHELD IN VARIOUS CASE LAWS. I) SOUTHERN PETRO CHEMICAL INDUSTRIES VS. DCIT (200 5) 93 TTJ (CHENNAI) 161- HELD, EXPENDITURE ATTRIBUTABLE TO EA RNING OF DIVIDENDS WHICH ARE EXEMPT UNDER S.10(33)-WHETHER T O INVEST OR NOT TO INVEST AND WHETHER TO RETAIN THE INVESTMENTS OR TO LIQUIDATE THE SAME ARE VERY STRATEGIC DECISIONS IN WHICH TOP MANAGEMENT IS INVOLVED-SAID DECISION -MAKING PROCESS IS VERY COMP LICATED AND REQUIRES VERY CAREFUL ANALYSIS- THUS, PROPORTIONATE MANAGEMENT EXPENSES ARE REQUIRED TO BE DEDUCTED WHILE COMPUTIN G THE DIVIDEND INCOME- II) DCIT V. S. G. INVESTMENTS AND INDUSTRIES LTD (2 004) 89 ITD 44 (CAL), HELD, EXPENDITURE INCURRED BY THE ASSESSEE IN RELATION TO INCOME WHICH DOES NOT FORM PART OF THE TOTAL INCOME ' AS MENTIONED IN SEC.14A HAS TO BE GIVEN A WIDER MEANIN G AND WOULD INCLUDE BOTH DIRECT AND INDIRECT RELATIONSHIP BETWE EN THE EXPENDITURE AND EXEMPT INCOME. III) ACIT V. PREMIER CONSOLIDATED CAPITAL TRUST (I) LTD,(2004) 83 TTJ (MUMBAI) 843-(HELD, IT IS JUSTIFIABLE TO ATTRIB UTE A PART OF THE FINANCIAL AND ADMINISTRATIVE EXPENSES AS EXPENDITUR E INCURRED IN RELATION TO EXEMPTED INCOME AND DISALLOWING THE SAM E IN VIEW OF THE PROVISIONS OF SEC.14A OF INCOME-TAX ACT,1961 ). . IV) ITO VS. DAGA CAPITAL MANAGEMENT (P) LTD 119 TTJ (MUM) SB:- HELD, THERE IS NO IOTA OF DOUBT THAT THE INTENTION BEHIND WITH THE EXPRESSION IN RELATION TO' IN S.14A IS TO ENCOMPAS S NOT ONLY THE DIRECT BUT ALSO INDIRECT EXPENDITURE WHICH HAS ANY RELATION TO THE EXEMPT INCOME. THE RELATION HAS TO BE SEEN BETWEEN THE EXEMPT- INCOME AND THE EXPENDITURE INCURRED IN RELATION TO IT AND NOT VICE - VERSA. IN ORDER TO ESCAPE TAX APPLICABILITY OF S. 14A, ONUS IS ON THE ASSESSEE TO PROVE THAT EXPENDITURE WAS INCURRED FOR EARNING TAXABLE INCOME. ITA NO. 538/MUM/2013 & ITA NO. 539/MUM/2013 18 3.2 IN THE LIGHT OF THE RATIO LAID DOWN IN AFORESAI D CASES, THE DISALLOWANCE OF EXPENSES OF RS. 4,67,821/- IS AS PE R SEC. 14A R.W. RULE 8D(2)(III). THE DISALLOWANCE MADE BY THE A.O. IS UPHELD. 3.3 THIS GROUND OF APPEAL IS THEREFORE DISMISSED. 16. WITH RESPECT TO SECOND ISSUE AS TO THE TREATMEN T OF SHORT TERM CAPITAL GAINS OF RS. 67,27,044/- AS BUSINESS INCOME, THE LE ARNED CIT(A) OBSERVED THAT THE TOTAL AMOUNT OF SCRIPS SOLD ARE OF VALUE RS. 13 ,38,36,535.62 WHILE SCRIP BOUGHT ARE TO THE TUNE OF RS. 12,71,09,491.62 RESUL TING IN A PROFIT OF RS. 67,27,044/- DURING THE YEAR. IT WAS OBSERVED BY LEA RNED CIT(A) THAT HOLDING PERIOD IS NOT VERY LARGE WHICH IN MANY CASES VARIED FROM 28 TO 84 DAYS. IT WAS OBSERVED THAT SUBSTANTIAL AMOUNT OF INTEREST BEARIN G LOANS WERE RAISED WHICH INCREASED FROM 21 CRORES TO 82 CRORES AND HENCE FAC TS IN THE INSTANT YEAR ARE DIFFERENT FROM PRECEDING YEAR AS THERE ARE SUBSTANT IAL INTEREST BEARING FUNDS WHICH WERE RAISED BY THE ASSESSEE FOR BUSINESS PURP OSES. THUS, LEARNED CIT(A) VIDE APPELLATE ORDER DATED 24.11.2012 CONFIR MED THE TREATMENT OF SHORT TERM CAPITAL GAINS AS BUSINESS INCOME OF THE ASSESS EE. 17. AGGRIEVED BY THE APPELLATE ORDER DATED 24.11.2 012 PASSED BY THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUN AL. 18. THE LD. D.R. SUBMITTED THAT THE ASSESSEE HAS EA RNED DIVIDEND INCOME OF RS. 16,07,123/- WHICH IS CLAIMED AS EXEMPT U/S 10(3 4) OF THE ACT. THE LEARNED DR SUBMITTED THAT THE IMPUGNED ASSESSMENT Y EAR IS 2008-09 AND THE AUTHORITIES BELOW HAVE RIGHTLY INVOKED SECTION 14A R.W.R. 8D OF RULES OF 1962 TO DISALLOW EXPENDITURE TO THE TUNE OF RS. 87,56,84 8/- INCURRED IN RELATION TO EARNING OF INCOME WHICH DOES NOT FORM PART OF THE T OTAL INCOME. THE LD. D.R. RELIED UPON THE ORDER OF THE LD. CIT(A). ITA NO. 538/MUM/2013 & ITA NO. 539/MUM/2013 19 WITH RESPECT TO THE SECOND ISSUE OF TREATING SHORT TERM CAPITAL GAINS AS BUSINESS INCOME , THE LEARNED DR SUBMITTED THAT FAC TS IN THE INSTANT YEAR ARE DISTINGUISHABLE VIS--VIS FACTS OF IMMEDIATELY PREC EDING YEAR AS SUBSTANTIAL INTEREST BEARING FUNDS ARE RAISED BY THE ASSESSEE D URING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR. THE LEARNED DR SUB MITTED THAT THE ASSESSEE ITSELF IS CLAIMING THE SHARES AS STOCK-IN-TRADE , A ND HENCE THE PROFITS ARISING FROM SALE OF SHARES WERE RIGHTLY TREATED BY REVENUE AS BUSINESS INCOME. THE LD. D.R. SUPPORTED THE ORDERS OF THE LD. CIT(A). 19. WE HAVE HEARD THE LD. D.R. AND ALSO PERUSED THE MATERIAL ON RECORD INCLUDING THE ORDERS OF AUTHORITIES BELOW. WE HAVE OBSERVED THAT THE AUTHORITIES BELOW HAVE INVOKED SECTION 14A OF THE A CT R.W.R. 8D OF RULES OF 1962 IN AN MECHANICAL MANNER, ALBEIT IMPUGNED ASSES SMENT YEAR UNDER APPEAL IS ASSESSMENT YEAR 2008-09 WHEREIN, NO-DOUBT , RULE 8D OF RULES OF 1962 ARE APPLICABLE VIDE JUDGMENT OF HONBLE BOMBAY HIGH COURT IN THE CASE OF GODREJ AND BOYCE MANUFACTURING COMPANY LIMITED(S UPRA) BUT RULE 8D OF RULES OF 1962 CANNOT BE INVOKED IN AN MECHANICAL MA NNER WITHOUT HAVING REGARD TO THE ACCOUNTS OF THE ASSESSEE AS MANDATED U/S 14A(2) OF THE ACT OF 1961. THE ASSESSEE HAS ALSO NOT COME FORWARD WITH T HE DETAILS OF EXPENDITURE INCURRED IN RELATION TO EARNING OF INCOME WHICH DOE S NOT FORM PART OF THE TOTAL INCOME . THUS, IN OUR CONSIDERED VIEW , THE FIRST I SSUE CONCERNING DISALLOWANCE U/S 14A OF THE ACT OF EXPENDITURE OF R S. 87,56,848/- BEING INCURRED IN RELATION TO EARNING OF INCOME WHICH DOE S NOT FORM PART OF TOTAL INCOME AS DISALLOWED BY AO BY INVOKING RULE 8D OF R ULES OF 1962 NEED TO BE SET ASIDE TO THE FILE OF THE AO FOR DE-NOVO DETERMI NATION OF THE ISSUE ON MERITS IN ACCORDANCE WITH LAW AS PER MANDATE OF SECTION 14 A OF THE ACT HAVING REGARDS TO THE ACCOUNTS OF THE ASSESSEE AS STIPULAT ED U/S 14A(2) OF THE ACT. WE WOULD LIKE TO CLARIFY THAT SHARES AND SECURITIES HELD AS STOCK-IN-TRADE AND SHALL NOT BE INCLUDED FOR MAKING DISALLOWANCE OF EX PENDITURE U/S 14A OF THE ITA NO. 538/MUM/2013 & ITA NO. 539/MUM/2013 20 ACT. NEEDLESS TO SAY THAT THE AO SHALL GRANT SUFFIC IENT AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCOR DANCE WITH PRINCIPLE OF NATURAL JUSTICE IN ACCORDANCE WITH LAW AND THE ASSE SSEE SHALL BE ALLOWED TO SUBMIT RELEVANT EVIDENCES/EXPLANATIONS IN ITS DEFEN SE BY THE AO. WE ORDER ACCORDINGLY. WITH RESPECT TO THE NEXT DISALLOWANCE OF TREATING SHORT TERM CAPITAL GAINS OF RS. 67,27,044/- AS BUSINESS INCOME . IT IS OBSERVED THAT THE ASSESSEE IS IN BUSINESS OF TRADING IN SHARES. THE ASSESSEE HAS SOL D SHARES OF RS. 13,38,36,535.62 AGAINST SCRIPS BOUGHT OF RS. 12,71, 09,491.62 , THE LD. CIT(A) HELD THAT THE HOLDING PERIOD WAS NOT VERY LARGE AND IN MANY CASES IT VARIES FROM 28 TO 84 DAYS. IT WAS ALSO OBSERVED BY THE AU THORITIES BELOW THAT HUGE AMOUNT OF INTEREST BEARING FUNDS WERE RAISED BY THE ASSESSEE WHICH INCREASED FROM RS. 21 CRORES TO RS. 82 CRORES DURING INSTANT ASSESSMENT YEAR. WE DO NOT FIND ANY INFIRMITY IN THE WELL REASONED ORDER O F THE LD. CIT(A) TREATING THE PROFIT OF RS. 67,27,044 /- SHOWN BY THE ASSESSEE AS BUSINESS INCOME AND NOT SHORT TERM CAPITAL GAIN KEEPING IN VIEW THE FACTUAL MATRIX OF THE CASE AND MORE-SO THE ASSESSEE IS ENGAGED IN THE BUSINESS OF TRADING IN SHARES AND STOCKS. THUS, WE ARE NOT INCLINED TO INTERFERE WITH THE WELL REASONED ORDER OF LEARNED CIT(A) WHICH WE CONFIRMS/SUSTAIN. WE ORDER ACCORDINGLY. 20. GROUND NO. 3 IS WITH RESPECT TO THE DISALLOWANC E OF RS. 56,916/- ON ACCOUNT OF PROVISION FOR LOSS-ESF ACCOUNT WHICH IS SIMILAR TO GROUND NO. 2 IN ASSESSEES APPEAL IN ITA NO. 538/MUM/2013 FOR ASSES SMENT YEAR 2007-08 WHICH WE HAVE ALREADY ADJUDICATED IN THIS ORDER VI DE PARA NO. 9 AND 10 OF THIS ORDER AND OUR DECISION IN ITA NO. 538/MUM/2013 SHALL APPLY MUTATIS MUTANDIS TO THIS ISSUE IN ITA NO. 539/MUM/2013 FOR THE ASSESSMENT YEAR 2008-09 . ITA NO. 538/MUM/2013 & ITA NO. 539/MUM/2013 21 21 GROUND NO 4 IS WITH RESPECT TO LEVIABILITY OF IN TEREST U/S 234A AND 234B OF THE ACT BY THE AO WHICH HAS BEEN STATED TO BE UPHEL D BY LEARNED CIT(A) AS PER THE CONTENTIONS OF THE ASSESSEE IN GROUND NO 4 FILED WITH APPEAL MEMO. THE LEVIABILITY OF INTEREST U/S 234A AND 234B IS CO NSEQUENTIAL IN NATURE. WE HAVE OBSERVED THAT THIS GROUND WAS NOT ADJUDICATED BY LEARNED CIT(A) ALBEIT THE ASSESSEE DID RAISED THIS GROUND BEFORE LEARNED CIT(A) VIDE GROUND NO. 7 IN APPEAL MEMO FILED WITH LEARNED CIT(A). IN OUR CONSI DERED VIEW, THIS MATTER ALSO NEED TO BE RESTORED TO THE FILE OF THE AO FOR DE-NOVO DETERMINATION OF THE ISSUE ON MERITS . NEEDLESS TO SAY THAT THE AO SHALL GRANT SUFFICIENT AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE IN ACCORDANCE WITH PRINCIPLE OF NATURAL JUSTICE IN ACCORDANCE WITH LAW AND THE ASSESSEE SHALL BE ALLOWED TO SUBMIT RELEVANT EVIDENCES/EXPLANATIONS I N ITS DEFENSE BY THE AO. WE ORDER ACCORDINGLY. 22. IN THE RESULT, APPEALS OF THE ASSESSEE IN ITA N O. 539/MUM/2013 FOR ASSESSMENT YEAR 2008-09 IS PARTLY ALLOWED FOR STATI STICAL PURPOSES. 23. IN THE RESULT, APPEALS OF THE ASSESSEE IN ITA N O. 538/MUM/2013 FOR ASSESSMENT YEAR 2007-08 IS ALLOWED FOR STATISTICAL PURPOSES AND APPEALS OF THE ASSESSEE IN ITA NO. 539/MUM/2013 FOR ASSESSMENT YEAR 2008-09 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH FEBRUARY, 2017. # $% &' 24-02-2017 ( ) SD/- SD/- (SAKTIJIT DEY ) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER $ MUMBAI ; & DATED 24-02-2017 [ ITA NO. 538/MUM/2013 & ITA NO. 539/MUM/2013 22 .9../ R.K. R.K. R.K. R.K. , EX. SR. PS !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. : ( ) / THE CIT(A)- CONCERNED, MUMBAI 4. : / CIT- CONCERNED, MUMBAI 5. =>( 99?@ , ?@ , $ / DR, ITAT, MUMBAI I BENCH 6. (BC D / GUARD FILE. / BY ORDER, = 9 //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , $ / ITAT, MUMBAI