GODREJ INVESTMENT P.LTD, MUMBAI V. ITO RG 10(2)(3), MUMBAI

ITA 6085/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92400 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-04-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 03-03-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 05-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PAVAN KUMAR BEER LA
• Assessee Lawyers: FALE E H BILIMORIA
• Section: 14A; 115JB

Judgement Text

GODREJ INVESTMENTS PRIVATE LIMITED ITA NO. 6085 / M UM /20 12 ITA NO. 58 7 9/MUM/20 12 1 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH G, MUMBAI . . , , BEFORE SHRI N K BILLAIYA , ACCOUNTANT MEMBER AND SHRI VIVEK VARMA, JUDICIAL MEMBERITA ITA NO. : 6085 /MUM/20 12 (ASSESSMENT YEAR: 200 9 - 1 0 ) GODREJ INVESTMENTS PRIVATE LIMITED , PLANT 11, PIROJSHANAGAR, VIKHROLI (EAST), MUMBAI - 400 0 079 VS I NCOME T AX O FFICER, RANGE 10 ( 2 ) (3) , ROOM NO. 430, AAYAKAR BHAVAN, MUMBAI (A PPELLANT) (RESPONDENT) ITA NO. : 58 7 9 /MUM/20 12 (ASSESSMENT YEAR: 2009 - 10 ) ASST COMMISSIONER OF INCOME TAX - 10(2), ROOM NO. 432, 4 TH FLOOR, AAYAKAR BHAVAN, M K ROAD, MUMBAI - 400 020 VS GODREJ INVESTMENTS PRIVATE LIMITED , PLANT 11, PIROJSHANAG AR, VIKHROLI (EAST), MUMBAI - 400 079 .: PAN: AAACG 1301 H (APPELLANT) (RESPONDENT) APPELLANT - ASSESSEE BY : SHRI FALEE H BILIMORIA RESPONDENT - REVENUE BY : SHRI PAVAN KUMAR BEERLA /DATE OF HEARING : 05 - 0 3 - 201 5 / DATE OF PRONOUNCEMENT : 17 - 04 - 201 5 ORDER , : PER VIVEK VARMA, JM: CROSS APPEAL S HAVE BEEN FILED BY THE ASSESSEE AND THE DEPARTMENT AGAINST THE ORDER OF CIT(A) 21, MUMBAI, DATED 01.06.2012. SINCE BOTH THE APPEALS ARE ARISING FROM THE SAME ORDER, WE ARE DISPOSING OFF BOT H THESE AP P EALS THROUGH COMMON AND CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 2. ITA NO. 6085/MUM/2012, THE FOLLOWING GROUNDS HAVE BEEN TAKEN BY THE DEPARTMENT: GODREJ INVESTMENTS PRIVATE LIMITED ITA NO. 6085 / M UM /20 12 ITA NO. 58 7 9/MUM/20 12 2 THIS APPEAL IS AGAINST THE ORDER DATED JUNE 1, 2012, OF THE COMMISSIONER OF INCOME TAX (APPE ALS) - 21, MUMBAI, AND RELATES TO THE ASSESSMENT YEAR 2009 - 10. 1) THE LEARNED COMMISSIONER OF INCOME TAX ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN RELYING ON THE PROVISIONS OF RULE 8D READ WITH SECTION 14A FOR COMPUTING THE AMOUNT LIABLE FOR B EING ADDED BACK TO THE BOOK PROFITS TO BE DETERMINED UNDER SECTION 115JB OF THE ACT, DESPITE THE FACT THAT NO EXPENDITURE WHICH IS RELATABLE TO THE EARNING OF EXEMPT DIVIDEND INCOME HAS ACTUALLY BEEN INCURRED BY THE APPELLANT. 2) THE LEARNED COMMISSIONER OF I NCOME TAX ERRED IN DISREGARDING THE LEGAL POSITION THAT SECTION 115JB OF THE ACT IS A SEPARATE CODE BY ITSELF AND THAT THE PROVISIONS OF THE ACT CANNOT BE APPLIED FOR COMPUTING THE BOOK PROFITS UNDER SECTION 115JB OF THE ACT. THE APPELLANT CRAVES LEAVE TO ADD TO, ALTER OR AMEND THE ABOVE GROUNDS OF APPEAL AS AND WHEN ADVISED. 3. ITA NO. 58 7 9/MUM/2012, THE FOLLOWING GROUNDS HAVE BEEN TAKEN BY THE ASSESSEE: 1.(A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DELETIN G THE DISALLOWANCE U/S 14A, R.W. RULE 8D, MADE BY THE AO. (B) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN HOLDING THAT THE DISALLOWANCE SUO - MOTO OFFERED BY THE ASSESSEE WAS REASONABLE AS IT WAS BASED ON SCIENTIFIC WORKING. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN NOT APPRECIATING THE FACT THAT THE ASSESSEE HAS NOT PROVIDED THE WORKING AS TO HOW THE SUO - MOTO DISALLOWANCES U/S 14A WERE COMPUTED. 3. THE APPELLANT PRAYS F OR APPROPRIATE RELIEF BASES ON THE SAID GROUND OF APPEAL AND THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, VARY, OMIT OR SUBSTITUTE ANY OF THE AFORESAID GROUNDS OF APPEAL AT ANY TIME BEFORE OR AT THE TIME OF HEARING OF APPEAL. ITA NO. 6085/MUM/2012 : DEPARTMENT APPEAL 4. THE ISSUE RAISED IN THE PRESENT APPEAL IS WHETHER IN CASE NO EXPENDITURE PERTAINING TO EARNING OF DIVIDEND WOULD AFFECT THE WORKING OF SECTION 115JB. 5. BOTH THE SIDES ADMITTED THAT THE ISSUE NEE DS TO BE RECONSIDERED BY THE CIT(A) IN THE LIGHT OF CASE LAWS SUBMITTED BY THE AR, I.E. ITO VS RBK SHARE BROKING PVT LTD REPORTED IN 60 SOT 61 & DABU R INDIA LTD VS ACIT, REPORTED IN 145 ITD 175 BY THE MUMBAI BENCHES A S BOTH THE PROVISIONS, I.E. SEC TION 14A AND 11 5 JB WO R K ON THEIR OWN AXIS, BEING SEPARATE CODE. GODREJ INVESTMENTS PRIVATE LIMITED ITA NO. 6085 / M UM /20 12 ITA NO. 58 7 9/MUM/20 12 3 6. WE, THEREFORE, RESTORE CASES BACK TO THE FILE OF THE CIT(A) FOR FRESH ADJUDICATION. 7. IN ITA NO. 5 8 79/MUM/2012, SINCE THE ISSUE IS RELATED TO SECTION 14A AND APPLICATION OF 115JB, THE ISSUE WOUL D BE ADJUDICATED A FRESH AS PER O UR DIRECTIONS IN ITA NO. 6085/MUM/2012. 8. AS A RESULT, BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH APRIL , 2015. SD/ - SD/ - ( . . ) ( ) ( N K BILLAIYA ) ( VIVEK VARMA ) ACCOUNTANT MEMB ER JUDICIAL MEMBER MUMBAI, DATE: 17 TH APRIL , 201 5 / COPY TO: - 1) / THE APPELLANT. 2) / THE RESPONDENT. 3) THE CIT (A) - 21 , MUMBAI. 4) THE CIT - 10 , MUMBAI/CIT - 10 , MUMBAI . 5) , , / THE D.R. G BENCH, MUMBAI. 6) COPY TO GUARD FILE. / BY ORDER / / TRUE COPY / / / , DY. / ASSTT. REGISTRAR I.T.A.T., MUMBAI * . . *CHAVAN, SR.PS