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Jyoti Ceramic Industries Pvt. Ltd., B-603, Parle Udyan Co-op. Hsg. Soc. Ltd., 25, Park Road, Vile Parle (East), Mumbai 400 057. Vs. The ACIT 5(2), 5th Floor, Aaykar Bhavan, MK Road, Mumbai -400 020.
June, 24th 2015
                      ,                
           IN THE INCOME TAX APPELLATE TRIBUNAL
                 MUMBAI BENCHES `J' MUMBAI
                 [ .. , Û è 
               Û    ãá,  è             ¢ 
      BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER        AND
          SHRI N.K.BILLAIYA, ACCOUNTANT MEMBER

                . / ITA No. 352/MUM/2013
                   [ [ /Assessment Year 2009-10
Jyoti Ceramic Industries Pvt.  / The ACIT 5(2),
Ltd.,                              5th Floor, Aaykar Bhavan,
                               Vs.
B-603, Parle Udyan Co-op. Hsg.     MK Road,
Soc. Ltd., 25, Park Road,          Mumbai -400 020.
Vile Parle (East),
Mumbai 400 057.

è    . /   . / PAN/GIR No. : AAACJ 0247P

     ( /Appellant)             ..        (× / Respondent)
                 . / ITA No. 66/MUM/2013
                 [ [ /Assessment Year 2009-10
The ACIT 5(2),            / Jyoti Ceramic Industries Pvt.
 th
5 Floor, Aaykar Bhavan,          Ltd.,
                           Vs.
MK Road,                         B-603, Parle Udyan Co-op.
Mumbai -400 020.                 Hsg. Soc. Ltd., 25, Park Road,
                                 Vile Parle (East),
                                 Mumbai 400 057.
è    . /   . / PAN/GIR No. : AACPK 1951Q

     ( /Appellant)             ..        (× / Respondent)

 Assessee by           Shri K.Gopal
 Revenue by :          Shri Pawan Kumar Beerla
             / Date of Hearing       : 22/06/2015
          /Date of Pronouncement : 22/06/2015
                          / O R D E R
                                             2              . / ITA No. 352&66/MUM/2013
                                                               [ [ /Assessment Year 2009-10


PER I.P.BANSAL, JM:

      These are cross appeals and are directed against order passed by Ld.
CIT(A)-9, Mumbai dated 16/10/2012 for assessment year 2009-10. Grounds
of appeal read as under:


      Assessee's Grounds of Appeal:
      The following grounds of appeal are distinct and separate and without prejudice to
      each other:
       1. The learned CIT(A) has erred in law and facts in confirming the disallowance
      under section 14A of the Income Tax Act, 1961 ('the Act') read with Rule 80 of the
      Income tax Rules, 1962 ('the Rules') as expenses incurred in relation to earn exempt
      income. The learned CIT(A) has erred in not considering the following:

      i. The Learned AO has not recorded dis-satisfaction on records that disallowance
      made by the appellant was incorrect having regard to the accounts.
       ii. Rule 80 can be invoked only when the assessing officer is not satisfied with the
      correctness of the claim of expenditure made by the assessee.




       iii. Investments in equity shares and mutual funds are made from owned funds and
      no expenditure can be attributed in relation to earn exempt income in terms of
      section 14A of the Act. There is no nexus between the borrowed funds and the
      investments. The use of Overdraft / Credit facilities is restricted by the banks for
      business purposes only.

      2. Without prejudice to Ground No. 1, the learned CIT (A) has erred in law and facts
      in not appreciating the fact that the investments in equity shares and mutual funds
      are made from owned funds and therefore, no disallowance of interest expenditure
      can be attributed to exempt income. Hence, proportionate interest under section 14A
      of the Act is unwarranted.


      Revenue's Grounds of Appeal:
      1. "Whether, on the facts and in the circumstances of the case and in law, the Ld.
      CIT(A) has erred in directing the Assessing Officer to reduce the interest received out
      of interest payment for computation of disallowance under Rule 8D of the I.T. Rules,
      1962?"

       2. "Whether, on the facts and in the circumstances of the case and in law, the Ld.
      CIT(A) has erred in granting relief of Rs.8,43,050/- being land leveling charges
      following the decision of the jurisdictional High Court in the case of M/s. Teksons (P)
      Ltd., 120 ITR 745, where the facts of the case are different as there the land was
      being used and here it is kept as vacant and acquired partly in previous year relevant
      to Assessment Year?"
                                        3            . / ITA No. 352&66/MUM/2013
                                                        [ [ /Assessment Year 2009-10


2.    It was submitted by Ld. AR that assessee in the present appeal is
contesting disallowance under section 14A of the Income Tax Act, 1961 (the
Act) only to the extent it relates to interest on the ground that assessee did not
utilize borrowed funds for the purpose of making investment in the shares from
which the assessee has earned tax free income. Disallowance was made with
reference to Rule 8D at a sum of Rs.1,07,05,235/- and after reducing the
disallowance suo-moto made by the assessee at a sum of Rs.10,65,556/-,
balance addition of Rs.96,39,679/- was made. The calculation of Rule 8D is
as under:
"Working of Disallowance u/s.14A-read with Rule 8D(2).
1. Under rule 8D(i)                                            Nil
2. Under rule 8D(ii)
a) Interest paid                                      Rs.91,47,572/- (A)
b)Average of Investment
  i) Investments as on 31/3/2009                      Rs.96,85,68,048/-
  ii) Investments as on 31/03/2008                    Rs. 83,57,96,331/-
      Total                                           Rs.180,43,64,379
       Average of Investments                         Rs. 902182190/-

c) Average of Assets
  i) Assets as on 31/03/2009                          Rs. 137,65,38,640/-
 ii) Assets as on 31/03/2008                          Rs.128,80,86,670/-
    Total                                             Rs.266,46,25,310/-
    Average of Assets                                 Rs.133,23,12,655/-
    Disallowance is A x B
                      C
    i.e. 91,47,572 X 9021821190 =                     Rs.    61,94,324/-
            133,23,12,655
3) under Rule 8D (iii)
   0.5% of Average of Investments 90,21,82,190/-      Rs. 45,10,911/-
   Total Disallowance under section 14A               Rs. 107,05,235/-
                                                      ===============

The disallowance was contested before Ld. CIT(A) and part relief has been given
by Ld.CIT(A) on the ground that only net interest debited to P&L Account
should be considered for disallowance under section 14A r.w. rule 8-D. With
these findings recorded by Ld. CIT(A), both the parties are aggrieved and have
                                          4            . / ITA No. 352&66/MUM/2013
                                                         [ [ /Assessment Year 2009-10


raised aforementioned grounds in assessee's appeal and Ground No.1 in
Departmental appeal.


3.    It was submitted by Ld. AR that on similar facts and circumstances of
the case, the Tribunal in assessment year 2008-09 vide its order dated
15/6/2015 in cross appeals, ITA No. 3005/Mum/2013 (Assessee's appeal) and
ITA No.1981/Mum/2013 (Revenue's Appeal) has set aside the addition and
restored back this issue to the file of AO with the following observations:
      "Having heard the rival submissions, we are of the view that the
      disallowance made u/s.14A of the Act by the AO requires fresh
      examination by duly considering the submissions of the assessee in the
      light of decision of Hon'ble Jurisdictional High Court rendered in the case
      of HDFC Ltd.(supra). Accordingly, we set aside the order of Ld. CIT(A) on
      this issue and restore the same to the file of the AO with a direction for
      fresh examination in the light of the aforesaid discussion.

It was submitted that the matter may be restored back to the file of AO with
similar directions.





4.    On the other hand, Ld. DR relied upon the order passed by the AO.


5.    We have heard both the parties and their contentions have carefully been
considered.   Following the aforementioned decision of Tribunal in respect of
assessment year       2008-09 in the case of assessee itself, we restore this issue
to the file of AO with similar directions. Since we are restoring back this issue
to the file of AO and the grounds of appeal No.1 raised by the Revenue is also
on account of         inclusion or otherwise of interest for the purpose of
disallowance, both the appeals on this issue are considered to be allowed for
statistical purposes in the manner aforesaid.


6.    Now we are left with Ground No.2 of Revenue's appeal.                     This
disallowance relates to expenditure incurred by the assessee on the             land
owned by it and is for the purpose of land leveling charges. It is the case of the
                                       5            . / ITA No. 352&66/MUM/2013
                                                       [ [ /Assessment Year 2009-10


assessee that every year after rains the assessee has to level the land,
therefore, expenditure incurred on leveling of the land is revenue in nature.
Ld. CIT(A) has accepted such contention on the basis of decision of Hon'ble
Bombay High Court in the case of Teksons Pvt. Ltd. vs. CIT, 120 ITR 745 on
the ground that by leveling the land no capital asset comes into existence and
such expenditure cannot be held to be capital in nature.        The Revenue is
aggrieved by such finding recorded by Ld. CIT(A) and has filed aforementioned
ground.


7.    We have heard both the parties and their contentions have carefully been
considered.   No material has been brought on record        by the Revenue to
contradict the contention of the assessee that land leveling expenses paid by
the assessee were not usual expenditure incurred in the course of business as
it is the contention of the assessee that these are recurring expenditure to be
made after rainy season to level the land. In absence of such material, we find
that Ld. CIT(A) did not commit any error in accepting the claim of the assessee.
We decline to interfere. This ground of the Revenue is dismissed.


8.    In the result, the appeal filed by the assessee is allowed for statistical
purposes and appeal filed by the Revenue       is partly allowed for statistical
purposes in the manner aforesaid.


    Order pronounced in the open court on 22/06/2015
         Û   22/06/2015    
                       Sd/-                           Sd/-
( Û    ãá / N.K.BILLAIYA)                   (..  / I.P. BANSAL)
 è / ACCOUNTANT MEMBER                     Û è / JUDICIAL MEMBER
 Mumbai;          Dated 22/06/2015
                            6         . / ITA No. 352&66/MUM/2013
                                        [ [ /Assessment Year 2009-10



    /Copy of the Order forwarded to :
1.  / The Appellant
2.   × / The Respondent.
3.    È() / The CIT(A)-
4.    È / CIT
5.    ,   ,  / DR, ITAT,
     Mumbai
6.   [  / Guard file.
                                    / BY ORDER,
×  //True Copy//
                                /          (Dy./Asstt. Registrar)
                             ,   / ITAT, Mumbai
.../Vm, Sr. PS

 
 
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