MR FIROZ A NADIADWALA , MUMBAI V. ASST CIT 16(1), MUMBAI

ITA 881/MUM/2020

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 9113 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2013-2014
• Appeal Filed On: 02-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ABIJRAJ RANAWAT
• Keywords: Opportunity of being heard; Earning of tax free income; Commercial expediency
• Section: 14A

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL “F” Bench, Mumbai Shri Shamim Yahya (AM) & Shri Rahul Chaudhary (JM) I.T.A. No. 881/Mum/2020 (A.Y. 2013-14) Mr. Firoz A. Nadiadwala 20, Barkat, Gulmohar Cross Road No. 5 JVPD Scheme, Juhu Mumbai-400 049. PAN : AADPN1426C Vs. ACIT-16(1) Room No. 439 Aayakar Bhavan M.K. Road Mumbai 400 020. (Appellant) (Respondent) Assessee by Shri Abijraj Ranawat Department by Shri S.N. Kabra Date of Hearing 02.02.2022 Date of Pronouncement 09.02.2022 O R D E R Per Shamim Yahya (JM) :- This is in appeal by the assessee against order of Leonard CIT(A) dated 5.11.2019 and pertains to assessment year 2013-14. 2. Brief facts of the case are that assessee in this case is a famous film producer. In the assessment order assessing officer made following disallowances. Disallowance under section 14A 3. This disallowance was made by the assessing officer despite noting the submission of the assessee that the said investment is in a sister concern made in earlier year. That it is coming from earlier years and assessee does not incur any administrative expense for the purpose of this investment and that that assessee has not earned any exempt income. The assessing officer did not record cogent satisfaction as to how the assessee plea that it has not incurred any has expense in this regard is not sustainable. He also rejected the Mr. Firoz A. Nadiadwala 2 proposition that when no exempt income is earned no disallowance under section 14A is permissible. Disallowance of unsecured loan 4. In this regard the assessing officer made disallowance of unsecured loan of rupees 10 lakhs by simply observing that the assessee has not proved the same. The assessing officer did not bring about anything with regard to the enquiry made by him in this regard. Disallowance of interest 5. This disallowance was made by the assessing officer for diversion of funds to giving interest-free loan to sister concern. In this regard assessing officer disregarded the assessee's contention that assessee has sufficient interest free funds. The assessing officer also held that there cannot be any commercial expediency in granting interest-free funds to the sister concern. 6. Against the order assessee appeal before the learned CIT(A). Learned CIT appeals confirmed the order of assessing officer by emphasizing that assessee has not made proper representation before him. He did not address the issue that there is lack of satisfaction by the assessing officer that no expenses have been incurred for earning the exempt income. He did not bother to refer to any of the higher court decision which are on the proposition that the no exempt income is earned no disallowance is to be done. He also confirmed the disallowance of unsecured loan. He also held that in absence of one-to-one nexus assessee's plea of having advanced funds to sister concern out of interest free funds cannot be accepted. 7. Against the above order assessee has filed appeal before us. 8. Assessee has raised following grounds :- 1. On the facts and circumstances of the case and in law the Ld. Commissioner of Income-Tax (Appeals) erred in passing an ex party order without giving proper opportunity of being heard. Mr. Firoz A. Nadiadwala 3 2. On the facts and circumstances of the case and in law the Ld. Commissioner of Income-Tax (Appeals) erred in confirming disallowance of interest amounting Rs. 76,92,547/- 3. On the facts and circumstances of the case and in law the Ld. Commissioner of Income-Tax (Appeals) erred in confirming addition of unsecured loan amounting Rs. 10,00,000/- u/s 68 of the Income-tax Act, 1961. 4. The order is bad in law and on facts. 5. Appellant craves leaves to add, alter, amend or vary all or any of the aforesaid grounds of appeal. 9. We have heard both the parties and perused the records. Learned Counsel of the assessee submitted that assessee is primarily aggrieved by the lack of proper opportunity granted by the learned CIT appeals. We note that learned CIT(A) has confirmed the addition without proper application of mind. Lack of presentations by the assessee do not dilute the facts available on record which clearly demonstrate that there is no satisfaction by the assessing officer in rejecting the assessee’s plea that no expenditure has actually been incurred warranting disallowance under section 14A. That there is no enquiry brought on record by the assessing officer regarding the unsecured loan. That no one to one nexus is required between interest free funds and sum advanced in terms of the decision of honourable Bombay High Court decision in the case of HDFC Bank Ltd. (410 ITR 247) (Bom) and Reliance Petro Products Pvt. Ltd. (322 ITR 158). 10. In these circumstances, in the substantial interest of justice we deem it appropriate to remit the issue the file of learned CIT(appeals).Learned CIT(appeals) is directed to decide the issue on merits after giving the assessee proper opportunity of being heard. 11. In the result appeal filed by the assessee stands allowed for statistical purposes. Order pronounced in 9.2.2022. Sd/- Sd/- (RAHUL CHAUDHARY) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai; Dated : 09/02/2022 Mr. Firoz A. Nadiadwala 4 Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. The CIT(A) 4. CIT 5. DR, ITAT, Mumbai 6. Guard File. BY ORDER, //True Copy// (Assistant Registrar) PS ITAT, Mumbai