2019 (5) TMI 1887 - AT - Income Tax

Disallowance u/s 14A read with Rule 8D - HELD THAT - Assessee has claimed by submitting the letter to the Assessing Officer and the Assessing Officer could not entertain the claim as it was not emanating from the return of income filed by the assessee. We note that the assessee may raise new grounds (for the issue which was not entertained by the AO during the appellate proceedings or before the Tribunal. We note as per the judgment of the Hon ble Supreme Court in Goetz (India) Ltd. 2006 (3) TMI 75 - SUPREME COURT the Assessing Officer may admit a new claim provided the assessee s claim it by filing revised return of income and as per the judgement of Hon ble Supreme court in Goetz (India) Ltd. 2006 (3) TMI 75 - SUPREME COURT ld. CIT(A) and Tribunal may admit the additional claim/ground. We want to make it clear that the decision of Co-ordinate Bench of ITAT Kolkata in REI Agro Ltd. 2013 (9) TMI 156 - ITAT KOLKATA wherein it was held that it is only investment which yields dividend during the previous year that has to be considered while adjudicating the average value of investment for the purpose of rule 8D(2)(ii) and 8D(2)(iii) of IT Rules. The aforesaid view of Tribunal has been affirmed as correct by the Hon ble Calcutta High court in GA No. 3581 of 2013 in the appeal against the order of the Tribunal in the case of REI Agro Ltd. supra. In addition to this we note that if the assessee has its own funds and reserve which is more than investments made by the assessee then no disallowance is attracted u/s 14A read with Rule 8D(2)(ii) of the IT Rules for that we rely on the judgment of Hon ble Bombay High Court in the case of HDFC Bank Ltd. vs DCIT 2016 (3) TMI 755 - BOMBAY HIGH COURT - we direct the AO to compute the disallowance after taking into account the aforesaid judicial precedents narrated above. Therefore statistical purposes the appeal of the assessee is treated to be allowed.

Summary

Issues:
1. Claim for disallowance under Rule 8D(2)(iii) vide sec. 14A
2. Rejection of claim due to non-filing of revised return
3. Dismissal of appeal by CIT(A)
4. Non-appearance of assessee during the hearing
5. Admittance of new claim by the Assessing Officer
6. Consideration of judicial precedents in determining disallowance under Rule 8D(2)(ii) and 8D(2)(iii)

Analysis:
1. The appeal pertains to the claim made by the assessee regarding disallowance under Rule 8D(2)(iii) vide sec. 14A. The assessee contended that only dividend-bearing shares and securities should be considered for the purpose of disallowance. The claim was based on the argument that certain investments did not yield dividend income during the year, and strategic investments in group companies were not made for earning dividend income.

2. The claim made by the assessee was rejected by the Assessing Officer due to the non-filing of a revised return. The rejection was based on the precedent set by the Supreme Court in the case of Goetze (India) Ltd. 284 ITR 323, which emphasized the requirement of filing a revised return to support such claims.

3. The appeal against the Assessing Officer's order was dismissed by the CIT(A) on the grounds that no revised return was filed by the appellant company, thereby upholding the decision of the Assessing Officer. The dismissal was based on the absence of a revised return to substantiate the claim.

4. During the hearing, the assessee did not appear despite multiple notices being issued. Consequently, the appeal was disposed of ex parte, with only the Departmental Representative present on behalf of the Revenue.

5. The Tribunal noted that the assessee had submitted the claim to the Assessing Officer but did not file a revised return. The Tribunal highlighted the possibility for the assessee to raise new grounds during appellate or tribunal proceedings, emphasizing the importance of adhering to the guidelines set by the Supreme Court in Goetze (India) Ltd. 284 ITR 323.

6. In determining the disallowance under Rule 8D(2)(ii) and 8D(2)(iii), the Tribunal considered judicial precedents, including the decision of the Co-ordinate Bench of ITAT Kolkata in REI Agro Ltd. vs. DCIT and the judgment of the Hon’ble Calcutta High Court in GA No. 3581 of 2013. Additionally, the Tribunal referenced the judgment of the Hon’ble Bombay High Court in HDFC Bank Ltd. vs. DCIT to direct the Assessing Officer to compute the disallowance in accordance with the established judicial precedents. Consequently, the appeal of the assessee was treated as allowed for statistical purposes.