M/s Forum Projects P Ltd, Kolkata V. D.C.I.T CC - II,kolkata, Kolkata

ITA 744/KOL/2013

• Counselvise Citation: 74423514 RSA 2013
• Duration Of Justice: 2 year(s) 7 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2015
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 08-04-2013
• Court: TRIBUNAL
• Department Lawyers: D LA HIRIJCIT
• Assessee Lawyers: SOUMITRA CHOUDHURY LD
• Keywords: Earning of tax free income
• Section: 143(3); 14A

Judgement Text

ITA NO. 744/KOL/20113-C-AM M/S. FORUM PROJECTS P. .LTD 1 IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, K OLKATA BEFORE : SHRI MAHAVIR SINGH,JUDICIAL MEMBER, AND SHRI M. BALAGANESH, ACCOUNTANT MEMBER ITA NO. 744/KOL/2013 A.Y 2009-10 M/S. FORUM PROJECTS P.LTD VS. DCIT, C.C-II, K OLKATA PAN: AADCS 7575E (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI SOUMITRA CHOUDHURY, A DVOCATE, LD.AR FOR THE RESPONDENT : SHRI D. LA HIRI,JCIT, SR.DR DATE OF HEARING: 26-11 -2015 DATE OF PRONOUNCEMENT: 4 -12- 2015 ORDER SHRI M.BALAGANESH, AM : THIS APPEAL OF THE ASSESSEE ARISES OUT OF THE ORDE R PASSED BY THE LEARNED CIT(A), CENTRAL-III, KOLKATA IN APPEAL NO. 98/CC-II /CIT(A)C-III/11-12/KOL FOR THE ASST YEAR 2009-10 DATED 31-01-2013 AGAINST THE ORD ER OF ASSESSMENT PASSED BY THE LEARNED AO U/S 143(3) OF THE INCOME TAX ACT, 1961 ( HEREINAFTER REFERRED TO AS THE ACT). 2. THE ONLY ISSUE TO BE DECIDED IN THIS APPEAL IS AS TO WHETHER THE PROVISIONS OF SECTION 14A OF THE ACT READ WITH RULE 8D(2)(III) OF THE IT RULES COULD BE APPLIED IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE BRIEF FACTS OF THIS ISSUE IS THAT THE ASSES SEE IS ENGAGED IN THE BUSINESS OF DEVELOPING PROPERTIES AND PARTLY SELLING THEM AND P ARTLY GIVING THEM ON RENT. THE ASSESSEE EARNED DIVIDEND INCOME OF RS. 1,31,451/- F ROM MUTUAL FUNDS DURING THE ASSESSMENT YEAR UNDER APPEAL. THE ASSESSEE MAINTAI NS A BANK ACCOUNT WITH STANDARD ITA NO. 744/KOL/20113-C-AM M/S. FORUM PROJECTS P. .LTD 2 CHARTERED BANK BEARING ACCOUNT NO. 100997263. IN T HE SAID BANK , THERE IS A FACILITY OF AUTO SWAP OF SURPLUS FUNDS TO THE MUTUAL FUND AN D RETRANSFER OF FUND WHEN THERE IS SHORTFALL IN BALANCE. THE BANK AUTOMATICALLY CREDI TS THE DIVIDEND TO THE ASSESSEES ACCOUNT. THE ENTIRE DIVIDEND INCOME OF RS. 1,31,45 1/- WAS EARNED ONLY OUT OF THIS AUTO SWAP ACCOUNT FROM MUTUAL FUNDS. DURING THE C OURSE OF ASSESSMENT PROCEEDINGS, THE LEARNED AO OBSERVED THAT THE ASSESSEE HAD MADE INVESTMENT IN SHARES OF RS. 62,32,50,000/- DURING THE YEAR AND BASED ON THIS HE DIRECTLY PROCEEDED TO APPLY THE SECOND AND THIRD LIMB OF RULE 8D(2) OF THE IT RULES AND MADE DISALLOWANCE U/S 14A OF THE ACT. BY APPLYING THE SECOND LIMB OF RULE 8D(2) (II) OF THE RULES, A DISALLOWANCE OF RS. 7,28,598/- WAS MADE WHICH WAS DELETED BY THE LE ARNED CITA ON FIRST APPEAL AND AGAINST WHICH THE REVENUE HAS NOT PREFERRED SECOND APPEAL BEFORE US. BY APPLYING THE THIRD LIMB OF RULE 8D(2)(III) I.E 0.5% OF AVERAGE V ALUE OF INVESTMENTS, A DISALLOWANCE OF RS. 23,64,132/- WAS MADE WHICH WAS UPHELD BY THE LEARNED CITA. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US ON THE FOLLOWING GR OUND:- 1) THAT THE LD.CIT(A) ERRED IN CONFIRMING ADDITI ON OF RS.23,64,132/- U/S. 14A OF THE I.TAX ACT, 1961 READ WITH RULE 8D(2)(III) I.E 0.5% OF THE AVERAGE INVESTMENT. THE ASSESSEE MADE INVESTMENT IN GROUP COMPANIES AND MOST OF THE SAME ARE BROUGHT FORWARD FROM EARLIER YEAR. NO ACTIVITY FOR THE SAME IS REQUIRED. HENCE, NO EXPENSES CAN BE ATTRIBUTABLE TO THE SAME. AS SUC H, ADDITION CONFIRMED BY THE LD.CIT(A) NEED NOT BE DELETED. 4. THE LEARNED AR ARGUED THAT THE LEARNED AO DID NOT RECORD HIS SATISFACTION IN TERMS OF RULE 8D(1) OF THE RULES AS TO WHY THE CLAI M MADE BY THE ASSESSEE THAT NO EXPENSES WERE INCURRED FOR EARNING EXEMPT INCOME IS INCORRECT IN THE FACTS AND CIRCUMSTANCES OF THE CASE. HE ARGUED THAT WITHOUT RECORDING SUCH SATISFACTION WHICH IS MANDATORY, THE LEARNED AO IS PREVENTED FROM PROCEED ING TO INVOKE RULE 8D(2) OF THE RULES AND HENCE PLEADED FOR DELETION OF THIS DISALL OWANCE. IN SUPPORT OF THIS CONTENTION, HE PLACED RELIANCE ON THE DECISION OF T HE CO-ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF DCIT VS REI AGRO LTD IN ITA NO. 1811/KOL/2012 DATED 14.5.2013. IN RESPONSE TO THIS, THE LEARNED DR VEHEMENTLY SUPP ORTED THE ORDER OF THE LOWER ITA NO. 744/KOL/20113-C-AM M/S. FORUM PROJECTS P. .LTD 3 AUTHORITIES AND IN ADDITION WITH REGARD TO NON-REQU IREMENT OF RECORDING OF SATISFACTION, RELIED ON THE DECISION OF THIS TRIBUNAL IN THE CASE OF ACIT VS CHAMPION COMMERCIAL CO. LTD REPORTED IN 139 ITD 108 (KOL ITAT). 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE MATERIALS AVAILABLE ON RECORD INCLUDING THE CASE LAWS RELIED UPON BY BOTH THE SIDES. WE FIND THAT THE ONLY ISSUE TO BE DECIDED IN THIS APPEAL IS AS TO WHETHER THE RECORDING OF SATISFACTION IN TERMS OF RULE 8D(1) OF THE RULES IS MANDATORY OR NOT BY T HE LEARNED AO BEFORE PROCEEDING FURTHER TO RULE 8D(2) OF THE RULES. WE FIND FROM T HE FACTS OF THE INSTANT CASE THAT THE LEARNED AO HAS THOUGH HAD EXAMINED THE ACCOUNTS OF THE ASSESSEE WITH REGARD TO THE AVAILABILITY OF OWN FUNDS IN THE CONTEXT OF MAKING SEPARATE DISALLOWANCE OF INTEREST ON BORROWED CAPITAL U/S 36(1)(III) OF THE ACT , DID NO T LOOK INTO THE ACCOUNTS OF THE ASSESSEE IN THE CONTEXT OF RULE 8D(1) OF THE IT RUL ES AND RECORD HIS SATISFACTION AS MANDATED THEREON THAT THE CLAIM OF THE ASSESSEE THA T NO EXPENDITURE WAS INCURRED FOR EARNING EXEMPT INCOME IS INCORRECT. THE ASSESSEE HA D CLAIMED THAT NO EXPENSES WERE INCURRED BY IT FOR THE PURPOSE OF EARNING THE EXEMP T INCOME IN THE FORM OF DIVIDEND AS ADMITTEDLY THE SAID DIVIDEND INCOME WAS EARNED OUT OF AUTO SWAP FUNDS WHICH WAS DONE DIRECTLY BY THE BANK WITHOUT ANY INTERFERENCE FROM THE SIDE OF THE ASSESSEE. HENCE THERE WAS NO NEED FOR THE ASSESSEE TO INCUR A NY EXPENDITURE THEREON FOR EARNING THE DIVIDEND INCOME. WE FIND THAT THE LEARNED AO REJECTED THE CLAIM OF ASSESSEE WITH REGARD TO CLAIM OF ASSESSEE THAT NO EXPENDITUR E WAS INCURRED IN RELATION TO EXEMPT INCOME WITHOUT INDICATING ANY COGENT REASONS FOR TH E SAME. WE FIND THAT THE LEARNED AO HAD STRAIGHT AWAY EMBARKED UPON COMPUTING DISALL OWANCE UNDER RULE 8D(2)(III) OF THE RULES. WE FIND THAT THIS ISSUE HAS BEEN EL ABORATELY DEALT WITH IN THE FOLLOWING CASES :- CIT VS ASHISH JHUNJHUNWALA IN G.A.NO. 2990 OF 2013 IN ITAT NO. 157 OF 2013 DATED 8.1.2014 RENDERED BY CALCUTTA HIGH COURT ' WHILE REJECTING THE CLAIM OF THE ASSESSEE WITH RE GARD TO EXPENDITURE OR NO EXPENDITURE, AS THE CASE MAY BE, IN RELATION TO ITA NO. 744/KOL/20113-C-AM M/S. FORUM PROJECTS P. .LTD 4 EXEMPTED INCOME, THE AO HAS TO INDICATE COGENT REAS ONS FOR THE SAME. FROM THE FACTS OF THE PRESENT CASE, IT IS NOT ICED THAT THE AO HAS NOT CONSIDERED THE CLAIM OF THE ASSESSEE AND ST RAIGHT AWAY EMBARKED UPON COMPUTING DISALLOWANCE UNDER RULE 8D OF THE RULES ON PRESUMING THE AVERAGE VALUE OF INVESTMENT AT % OF THE TOTAL VALUE. IN VIEW OF THE ABOVE AND RESPECTFULLY FOLLOW ING THE COORDINATE BENCH DECISION IN THE CASE OF J.K. INVESTORS (BOMBA Y) LTD., SUPRA, WE UPHOLD THE ORDER OF CIT (A)'. CIT VS R.E.I. AGRO LTD IN GA 3022 OF 2013 IN ITAT 1 61 OF 2013 DATED 23.12.2013 RENDERED BY CALCUTTA HIGH COURT WHICH APPROVED THE FINDINGS OF THIS TRIBUNAL WHICH WAS RELIED UPON BY THE LEARNED AR THE ASSESSING OFFICER ALSO DISALLOWED THE EXPENDITU RE UNDER SECTION 14A OF THE INCOME TAX ACT, 1961 WITHOUT FIRST RECORDING TH AT HE WAS NOT SATISFIED WITH THE CORRECTNESS OF THE CLAIM AS REGARDS THE CL AIM THAT NO EXPENDITURE WAS MADE BY THE ASSESSEE. CHALLENGING THE ORDER OF THE TRIBUNAL, THE PRESENT APPEAL HAS BEEN FILED. WE HAVE HEARD MR.BHOWMIK AND ARE OF THE OPINION THA T NO POINT OF LAW HAS BEEN RAISED. THEREFORE, THIS APPEAL IS DISMISSED. THE AFORESAID TWO DECISIONS OF THE JURISDICTIONAL H IGH COURT ARE BINDING ON THIS TRIBUNAL AND HENCE THE CASE LAWS ADDRESSED BY THE L EARNED CITA IN HIS ORDER ARE NOT CONSIDERED IN THIS ORDER. WE ALSO FIND THAT ONE OF THE DECISIONS RELIED UPON BY THE LEARNED CIT(A) IS THAT OF JURISDICTIONAL HIGH COURT IN THE CASE OF DHANUKA & SONS REPORTED IN 339 ITR 319 (CAL) . WE FIND THAT THE FACTS IN THE CASE OF DHANUKA & SONS ARE TOTALLY DIFFERENT FROM THE FACTS OF THE INSTANT CASE AND MOREOVER, WHEN THERE ARE TWO CONFLICTING DECISIONS OF THE SAME COURT OR DIFFEREN T COURTS ON THE SAME ISSUE, THEN THE DECISION FAVOURABLE TO THE ASSESSEE HAS TO BE FOLLO WED. RELIANCE IN THIS REGARD IS PLACED ON THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF VEGETABLE PRODUCTS REPORTED IN 88 ITR 172 (SC) . ITA NO. 744/KOL/20113-C-AM M/S. FORUM PROJECTS P. .LTD 5 HENCE WE HOLD THAT THE ACTION OF THE LEARNED AO IN DIRECTLY EMBARKING ON RULE 8D(2) OF THE RULES IS NOT APPRECIATED AND HENCE NO DISALL OWANCE U/S 14A OF THE ACT COULD BE MADE IN THE FACTS OF THE INSTANT CASE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT IMMEDIATELY AFTE R THE HEARING ON 4 -12-2015 1. . THE APPELLANT: M/S. FORUM PROJECTS PVT. LTD 4/1 RE D CROSS PLACE, KOL-1. 2 THE RESPONDENT-THE DCIT, C.C-II AAYKAR BHAWAN POOR VA, 110 SHANTI PALLY KOLKATA-107. 3 / THE CIT, 4.THE CIT(A) 5 . DR, KOLKATA BENCH 6 . GUARD FILE . TRUE COPY, BY ORDER, ASSTT REGISTRAR SD/- ( MAHAVIR SINGH, JUDICIAL MEMBER ) SD/- (M. BALAGANESH, ACCOUNTANT MEMBER) DATE 4 /12/2015 COPY OF THE ORDER FORWARDED TO:-