Coal India Ltd., Kolkata V. ACIT, R-5, KOLKATA, Kolkata

MA 26/KOL/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4524 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-07-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 18-03-2016
• Court: TRIBUNAL
• Section: 14A

Judgement Text

1 MA NO. 26/KOL/2016 COAL INDIA LTD. AY: 2008-09 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA [BEFORE SHRI N. V. VASUDEVAN, JM & SHRI M. BALAGAN ESH, AM] M.A. NO. 26/KOL/2016 I.T.A NO.1032/KOL/2012 ASSESSMENT YEAR: 2008-09 COAL INDIA LTD. (PAN: AABCC3929J) VS. ASSISTANT CO MMISSIONER OF INCOME-TAX, ` RANGE-5, KOLKATA ( APPLICANT ) ( RESPONDENT ) DATE OF HEARING: 22.07.2016 DATE OF PRONOUNCEMENT: 27.07.2016 FOR THE APPLICANT: SHRI AKASH MANSINGHKA, AR FOR THE RESPONDENT: SHRI SALLONG YADEN, ADDL. C IT ORDER PER SHRI M. BALAGANESH, AM: BY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE HAS SOUGHT TO RECTIFY THE MISTAKE/ERROR STATED TO HAVE BEEN COMMITTED BY THIS TRIBUNAL WHILE DISPOSING OF THE APPEAL IN ITA NO. 1032/KOL/2012 AND ITA NO. 1238/KOL/2012 VIDE ITS ORDER DATED 13.05.2015 WITH REGARD TO THE ISSUE OF DISALLOWANCE U/S. 14A O F THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 2. BRIEF FACTS OF THIS ISSUE ARE THAT THE ASSESSEE IS A PUBLIC SECTOR ENTERPRISE ENGAGED IN THE ACTIVITIES OF MINING AND EXTRACTION OF COAL AND ALSO IN THE MANAGING OF COAL MINING INDUSTRY IN THE NATIONALIZED SECTOR. THE ASSESSEE HAD PREFERRED APPEAL BEFORE THIS TRIBUNAL WITH REGARD TO DISALLOWANCE MADE U/S. 14A OF THE AC T READ WITH RULE 8D(2)(III) OF THE I. T. RULES, 1962 (HEREINAFTER REFERRED TO AS THE RULES ) IN THE SUM OF RS.31.58 CR.. THE LD. AR STATED THAT THE INVESTMENTS MADE BY THE ASSESSEE IN ITS SUBSIDIARY COMPANIES ARE STRATEGIC INVESTMENTS MADE WITH A VIEW TO ACQUIRE CONTROLLING SECTOR IN THE SAID COMPANY. ACCORDINGLY, IT WAS CLAIMED THAT THE PROVISIONS OF RULE 8D(2)(III) OF THE RULES FOR THE PURPOSE OF DISALLOWANCE U/S. 14A OF THE ACT SHALL N OT BE MADE APPLICABLE TO THE ASSESSEE. IN SUPPORT OF THIS PROPOSITION, THE LD. AR STATED T HAT THE ASSESSEE HAD PLACED RELIANCE ON THE DECISION OF THIS TRIBUNAL COORDINATE BENCH DECI SION IN THE CASE OF DCIT VS. SELVEL 2 MA NO. 26/KOL/2016 COAL INDIA LTD. AY: 2008-09 ADVERTISING PVT. LTD. IN ITA NO. 2115/KOL/2013 DATE D 01.01.2015 WHEREIN UNDER SIMILAR CIRCUMSTANCES, DISALLOWANCE U/S. 14A OF THE ACT WAS DIRECTED TO BE DELETED BY THIS TRIBUNAL. THIS DECISION WAS BROUGHT TO THE NOTICE OF THIS TRIBUNAL DURING THE COURSE OF HEARING AND ALSO VIDE PARA 10 OF THE WRITTEN SUBMIS SIONS OF THE ASSESSEE WHICH ARE ALREADY PART OF RECORDS. HOWEVER, IT WAS ARGUED THAT THIS TRIBUNAL, WHILE RENDERING THE DECISION DID NOT DISCUSS ABOUT THIS JUDGMENT WHICH HAD ALREA DY BEEN DECIDED IN FAVOUR OF THE ASSESSEE AND ULTIMATELY DECIDED THE ISSUE OF DISALL OWANCE U/S 14A OF THE ACT AGAINST THE ASSESSEE. HENCE, HE ARGUED THAT THE NON-CONSIDERAT ION OF THE COORDINATE BENCH DECISION OF THIS TRIBUNAL, CITED SUPRA, HAD CREATED AN ERROR AP PARENT FROM RECORD IN THE ORDER OF THIS TRIBUNAL. 3. IT WAS ALSO SUBMITTED THAT THE ASSESSEE HAD RECO VERED APEX OFFICE CHARGES OF RS.164.60 CR. FROM ITS SUBSIDIARIES FOR MANAGING IT S WHOLLY OWNED SUBSIDIARIES AND CARRYING OUT RELATED ACTIVITIES WHICH WAS DULY OFFE RED TO TAX BY THE ASSESSEE. HENCE IT WAS ARGUED THAT NO SEPARATE DISALLOWANCE U/S. 14A OF TH E ACT WAS REQUIRED TO BE MADE. THIS POINT WAS ALSO BROUGHT TO THE ATTENTION OF THIS TRI BUNAL VIDE PARA 7 OF THE WRITTEN SUBMISSION FILED BEFORE THIS TRIBUNAL DURING THE CO URSE OF ORIGINAL PROCEEDINGS WHICH WERE NOT CONSIDERED BY THIS TRIBUNAL WHILE PASSING THE O RDER ON 13.05.2015. 4. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH ORDER OF THE TRIBUNAL. WE FIND THAT THE ABOVEMENTIONED TWO POINTS WERE NOT CONSIDE RED BY THIS TRIBUNAL WHILE DISPOSING OF THIS APPEAL ON 13.05.2015 AND NON-CONSIDERATION OF THE SAME HAD RESULTED IN THE ERROR IN TERMS OF SECTION 254(2) OF THE ACT AND HENCE, IN TH E FACTS AND CIRCUMSTANCES, WE DEEM IT FIT AND APPROPRIATE TO RECALL THE ORDER PASSED BY THIS TRIBUNAL IN ITS ENTIRETY WITH REGARD TO THE ISSUE OF DISALLOWANCE U/S. 14A OF THE ACT. 5. THE LD. AR ALSO STATED THAT THE ASSESSEE HAD RAI SED AN ADDITIONAL GROUND OF APPEAL BEFORE THIS TRIBUNAL WHICH WAS NOT ADJUDICATED BY T HE TRIBUNAL WHILE PASSING THE ORDER ON 13.05.2015. HOWEVER, ON VERIFICATION OF THE SAME F ROM THE RECORDS OF THIS TRIBUNAL, WE FIND THAT NO SUCH ADDITIONAL GROUND IS PLACED ON RE CORD AND NO MENTION HAS BEEN MADE IN THE TRIBUNALS ORDER DATED 13.05.2015 WITH REGARD T O RAISING OF ADDITIONAL GROUND BY THE 3 MA NO. 26/KOL/2016 COAL INDIA LTD. AY: 2008-09 ASSESSEE ON THE ISSUE OF DISALLOWANCE U/S. 14A OF THE ACT. HOWEVER, SINCE WE HAVE ALREADY HELD THAT THE ORDER PASSED BY THIS TRIBUNAL REQUIRES TO BE RECALLED ON THE ISSUE OF DISALLOWANCE U/S. 14A OF THE ACT IN ITS ENTIRETY, T HIS GROUND RAISED BY THE ASSESSEE DOES NOT REQUIRE ANY SPECIFIC ADJUDICATION. 6. IN THE RESULT, MISC. APPLICATION OF ASSESSEE IS ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 27.07.2016 SD/- SD/- (N. V. VASUDEVAN) (M. BALAGANESH) JUDICIAL MEMBER ACCOUNTAN T MEMBER DATED : 27TH JULY, 2016 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPLICANT COAL INDIA LTD., 10, N. S. ROAD, KOLKATA -700 001. 2 RESPONDENT ACIT, RANGE-5, KOLKATA 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .