DARASHAW AND COMPANY P LTD, V. DCIT RG 4(1),

MA 447/MUM/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1701 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-03-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 16-12-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PITAMBAR DAL
• Section: 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D B ENCH, MUMBAI , , , BEFORE SHRI VIJAY PALO RAO AND SHRI N.K. BILLAIY A, AM M.A. NO. 447 & 448/MUM/2013 (ARISING OUT OF I.T.A. NOS.456 & 660/MUM/2012 ( ! ! ! ! / ASSESSMENT YEAR : 2008-09 M/S. DARASHAW & COMPANY PVT. LTD., FLAT NO. 3, RAJESH MANSION, D. VACHHA ROAD, CHURCHGATE, MUMBAI-400 020 THE DCIT, RANGE 4(1), MUMBAI ' ./ #$# ./ PAN/GIR NO. : AAACB 2360F ( % '& / APPELLANT ) .. ( '('& / RESPONDENT ) % '& ) / APPELLANT BY: SHRI ASHISH MEHTA '('& * ) / RESPONDENT BY: SHRI PITAMBAR DAL + * , - / DATE OF HEARING :07.03.2014 ./! * , - / DATE OF PRONOUNCEMENT :07.03.2014 #0 / O R D E R PER N.K. BILLAIYA, AM: THESE TWO MISCELLANEOUS APPLICATIONS U/S. 254(2) OF THE ACT FOR A.Y. 2008-09 ARE BY THE ASSESSEE AGAINST THE ORDER OF THE TRIBUNAL DT. 12.6.2013 IN ITA NOS. 456 /MUM/2012 & 225/M/2011. 2. IT IS THE CLAIM OF THE ASSESSEE THAT WHILE DECID ING THE DISALLOWANCES MADE U/S. 14A R.W. RULE 8D, THE TRIBUNAL HAS HELD T HAT NO INTEREST WAS TO BE DISALLOWED IN VIEW OF THE JURISDICTIONAL HIGH CO URTS DECISION IN THE M.A. NOS. 447 & 448/M/2013 2 CASE OF RELIANCE UTILITIES & POWER LTD. 313 ITR 340 . HOWEVER, THE DISALLOWANCES UPHELD BY THE TRIBUNAL INCLUDES AN I NTEREST ALLOCATION WHICH AS PER THE RULING OF THE JURISDICTIONAL HIGH COURT WAS NOT BE INCLUDED FOR DISALLOWANCES U/S. 14A R.W. RULE 8D. THIS FINDING OF THE TRIBUNAL HAS RESULTED INTO A MISTAKE APPARENT FROM RECORD AND DESERVES TO BE RECTIFIED U/S. 254(2) OF THE ACT. 3. THE LD. DEPARTMENTAL REPRESENTATIVE STRONGLY OBJ ECTED TO THIS STATING THAT THERE IS NO MISTAKE APPARENT FROM RECO RD WHICH REQUIRES RECTIFICATION U/S. 254(2) OF THE ACT. 4. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS AND PERUSED THE ORDERS OF THE TRIBUNAL UNDER CONSIDERATION. TH E FINDINGS OF THE TRIBUNAL AT PARA-22 ON PAGE-8 READS AS UNDER: WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUS ED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIAL EV IDENCES BROUGHT ON RECORD. A PERUSAL OF THE BALANCE SHEET OF THE A SSESSEE AS EXHIBITED AT PAGE-1 OF THE PAPER BOOK SUPPORTS THE CONTENTION OF THE COUNSEL THAT ASSESSEE HAS SUFFICIENT OWN FUNDS TO COVER UP THE INVESTMENTS. THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS RELIANCE UTILITIES & POWER LTD., 313 ITR 340 HAS HELD THAT WHERE BOTH OWN FUNDS AND LOAN FUNDS ARE AVAILABLE W ITH THE ASSESSEE, THE PRESUMPTION IS THAT THE INVESTMENT IS MADE OUT OF OWN FUNDS. RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT, IN OUR CONSIDERATE VIEW, THE DISALLOWANCE AS COMPUTED BY THE ASSESSEE UNDER RULE 8D AT RS. 39,19,175/- SHOULD MEET THE ENDS OF JUSTICE. WE, A CCORDINGLY DIRECT THE AO TO RECOMPUTE THE DISALLOWANCE AS DONE BY TH E ASSESSEE AFTER GIVING A REBATE OF RS. 1,75,883/- WHICH HAS A LREADY BEEN DISALLOWED BY THE ASSESSEE IN ITS COMPUTATION OF IN COME. 5. A PERUSAL OF THE AFORESTATED FINDINGS OF THE TRI BUNAL SHOWS THAT ALTHOUGH THE TRIBUNAL HAS REFERRED TO THE DECISION OF THE HONBLE M.A. NOS. 447 & 448/M/2013 3 JURISDICTIONAL HIGH COURT IN THE CASE OF RELIANCE U TILITIES & POWER LTD. (SUPRA), THE TRIBUNAL IN PRINCIPLE AGREED WITH THE ALTERNATIVE DISALLOWANCE COMPUTED BY THE ASSESSEE AND IN THE OPINION OF THE TRIBUNAL, THIS ALTERNATIVE DISALLOWANCE U/S. 14A R.W. RULE 8D WOUL D MEET THE ENDS OF JUSTICE. WE, THEREFORE, DO NOT FIND ANY FORCE IN T HE SUBMISSION OF THE LD. COUNSEL. THERE IS NO MISTAKE APPARENT FROM RECORD. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATIONS FI LED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 07.03.2014 . #0 * /! 1 23 07.03.2014 / * 4+ 5 SD/- SD/--+ (VIJAY PAL RAO ) (N.K. BILLAIYA) /JUDICIAL MEMBER / ACCOUNTANT MEMBER + MUMBAI; 2 DATED 07.03.2014 . . ./ RJ , SR. PS #0 #0 #0 #0 * ** * ', ', ', ', %6!, %6!, %6!, %6!, / COPY OF THE ORDER FORWARDED TO : 1. % '& / THE APPELLANT 2. '('& / THE RESPONDENT. 3. # #7 ( % ) / THE CIT(A)- 4. # #7 / CIT 5. 84 ', , # % % , + / DR, ITAT, MUMBAI 6. 49 :+ / GUARD FILE. #0 #0 #0 #0 / BY ORDER, (, ', //TRUE COPY// ; ;; ; / < < < < (DY./ASSTT. REGISTRAR)