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2016 (5) TMI 1248 - ITAT CHENNAI

2016 (5) TMI 1248 - ITAT CHENNAI - TMI - Disallowance made under section 14A r.w.r 8D - Held that:- The assessee borrowed money from its group Companies and Firms and given loans to its own group companies and firms and the investments also in its group companies only. In the balance sheet, the firm shown ₹ 69,39,16,000/- as share application money. Till 31.03.2010 no shares were allotted to the firm. In the profit and loss account, the firm has shown ₹ 95,41,875/- as interest paid t .....

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funds utilized for the acquisition of shares only if shares were held as stock-in-trade and that would arise only if the assessee was engaged in trading in shares. So far as the acquisition of shares was in the form of investment and the only benefit the assessee derived was the dividend income which was not assessable under the Act, we are of the opinion that the disallowance under section 14A of the Act was squarely attracted and the Assessing Officer has rightly disallowed the claim - Decide .....

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round raised in the appeal of the Revenue relates to deletion of disallowance made under section 14A of the Income Tax Act, 1961 [ Act in short] read with Rule 8D of the Income Tax Rules. 2. Brief facts of the case are that the assessee is engaged in the business of finance and investments. The assessee filed its return of income declaring total loss of ₹ 2,36,20,732/-. The return was processed under section 143(1) of the Act and selected for scrutiny. Notice under section 143(2) of the Ac .....

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the profit and loss account, the firm has shown ₹ 95,41,875/- as interest paid to others. Similar pattern of investment in share application money and incurred huge expenditure on interest, but no shares were allotted and the firm had not taken any effort to get the shares or to take back the money given as share application money. Therefore, the Assessing Officer was of the opinion that it is a clear diversion of interest bearing funds to other group companies. Accordingly, the assessee .....

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es by using borrowed funds, the interest expenditure should be disallowed under section 14A of the Act, as the investment would result in dividend income, which would not be included in the total income of the taxpayer. In view of the above, the Assessing Officer worked out the disallowance of interest expenditure with regard to share application money under section 14A of the Act at ₹ 12,03,43,298/- and after deducting the disallowance under section 14A made by the assessee of ₹ 4,2 .....

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sessing Officer. The ld. DR has submitted that the ld. CIT(A) followed the decision of the Tribunal in I.T.A. No. 1690/Mds/2013 dated 27.11.2013 for the assessment year 2009-10 in assessee s own case, wherein, the Tribunal has followed its own order in I.T.A. No. 1523/Mds/2012 in the case of MSA Security Services & I.T.A. No.1524/Mds/2012 in NMS Consultancy vide order dated 17.12.2012, against which the Department has preferred further appeal before the Hon ble High Court and prayed that the .....

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estments also in its group companies only. In the balance sheet, the firm shown ₹ 69,39,16,000/- as share application money. Till 31.03.2010 no shares were allotted to the firm. In the profit and loss account, the firm has shown ₹ 95,41,875/- as interest paid to others. Similar pattern of investment in share application money and incurred huge expenditure on interest, but no shares were allotted and the firm had not taken any effort to get the shares or to take back the money given a .....

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ent and the only benefit the assessee derived was the dividend income which was not assessable under the Act, we are of the opinion that the disallowance under section 14A of the Act was squarely attracted and the Assessing Officer has rightly disallowed the claim. Our views are fortified by the decision in the case of Pradeep Kar v. ACIT 319 ITR 416 [Kar], wherein the Hon ble Karnataka High Court has observed and held as under: The claim of the assessee for deduction of interest on the amounts .....

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n of the first appellate authority and restored the order of the assessing authority. Being aggrieved by the same, the assessee is before us by filing this appeal framing substantial questions of law and urged the grounds in support of the same. Smt. Anuradha, learned counsel for the appellant relied upon the decision reported in CIT Vs. Rajendra Prasad Moody [1978] 115 ITR 519 wherein, it is held that interest paid on money borrowed for investment in shares is deductible under section 57(iii) o .....

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eal memorandum arise for consideration of this court and requested to set aside the order passed by the Tribunal. The substantial questions of law framed in the appeal are extracted as hereunder. "(i) Whether or not the Tribunal was right in not allowing the interest incurred by the assessee as expenditure in computing income of the assessee? (ii) Whether or not the Tribunal was right in reversing the findings of the Commissioner of Income-tax (Appeals), which was based on a Supreme Court&# .....

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contentions urged, we have perused the orders passed by the assessing authority, the first appellate authority and the Tribunal with a view to find out as to whether the substantial questions of law framed in this appeal would arise for consideration of this court. It is not in dispute that the assessee had borrowed loans and invested the same in shares. Deduction is claimed by him of the interest amount paid on the borrowed loans. The amounts borrowed by the appellant were invested in shares a .....

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cted hereunder: "The decision is with reference to deduction allowable under section 57(iii) of the Income-tax Act. The decision relates to an assessment year where dividend income was taxable in the hands of the assessee. With the introduction of section 10(33) of the Income-tax Act from the assessment year 1998-99 the position of law in regard to taxability of dividends has been changed since such income becomes a part of income which do not form a part of total income of the assessee. Th .....

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nditure relating to exempted income is not allowable. The assessing authority has considered the above relevant factor and disallowed the claim of the assessee. The first appellate authority reversed the order of the assessing authority by applying the decision in Rajendra Prasad Moody's case [1978] 115 ITR 519 (SC), referred to supra, which was rendered prior to introduction of section 14A of the Act and which has no application to the fact situation. The Tribunal has rightly set aside the .....

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e fact situation. We are in agreement with the orders passed by the assessing authority and the Tribunal and differ from the view taken by the first appellate authority. For the reasons stated supra, interference with the impugned order of the Tribunal is not warranted in this case. No substantial questions of law much less the questions of law framed by the appellant will arise for consideration of this court. The appeal is devoid of merit and liable to be dismissed. Accordingly, the appeal is .....

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the company under the control of the assessee, the utilisation of the borrowed funds was for business purpose entitling the assessee to deduction of interest under section 36(1)(iii) of the Income-tax Act, 1961. The Assessing Officer held that the assessee made investments by utilising the borrowed funds ill the form of acquisition of shares in the company and the only benefit the assessee got was dividend income of ₹ 3 lakhs. Since section 14A of the Act bars any deduction pertaining to a .....

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l, that any expenditure incurred for earning any income which was not taxable under the Act was not an allowable expenditure. Dividend income was exempt under section 10(33) of the Act and the dividend earned by the assessee on the shares acquired by her with the borrowed funds did not constitute part of the total income in the hands of the assessee. The reasoning given by the Tribunal for disallowance of ₹ 2 lakhs, i.e., by applying section 14A, squarely applied to the interest paid on th .....

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benefit the assessee derived was the dividend income which was not assessable under the Act, the disallowance under section 14A was squarely attracted and the Assessing Officer rightly disallowed the claim. 8. Further, in the case of Lakshmi Ring Travellers v. ACIT in I.T.A. No. 2083/Mds/2011 vide order dated 02.03.2012 for the assessment year 2008- 09, the Coordinate Bench of the Tribunal has held as under: 6. We considered the arguments of both the sides in detail. Sec.14A(1) declares the law .....

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f the computations made by an assessee, he shall compute the quantum in accordance with the method that may be prescribed. For this matter, Rule 8D has already been prescribed. Sub-sec.(3) further provides that even in a case where an assessee claims that no expenditure was incurred, the assessing authority has to presume the incurring of such expenditure as provided under sub-sec.(2) read with Rule prescribed. Therefore, it becomes clear that even in a case where the assessee claims that no exp .....

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n in a case where no expenditure is stated to have been incurred, the assessing authority has to apply Rule 8D. As the statutory presumption substitutes the requirement of factual evidence, the question of enquiry does not arise. Therefore, we are unable to agree with the argument of the learned CA. 7. In result, this appeal filed by the assessee is dismissed. 9. In the case of Coal India Ltd. v. Addl. CIT in I.T.A. No. 1032/Kol/2012 & 1238/Kol/2012 for the assessment year 2008-09 vide order .....

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14A of the Act by observing that as to why he is not satisfied with the correctness of claim of the assessee that no expenditure was incurred. The AO has recorded the findings that earning of dividend was not an automatic process and the assessee was required to keep regular control over the investments made. 5.1. The contention put forth by the ld. AR that it had earned dividend income of ₹ 262907.86 lakhs without incurring any expenses does not convince us at all. The term expenditure as .....

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The same would also require market research and analysis. The assessee company by acquiring controlling interest in the subsidiary companies would also be required to attend board meetings and make policy decisions with regard to the aforesaid huge amount of investments made. By no stretch of imagination, it can be assumed that such activities were done without incurring any expenditure. It is pertinent to mention here that even the assessee did not rebut the findings of AO that the assessee wa .....

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duction in respect of any expenditure incurred by the assessee in relation to income, which does not form part of the total income under the Act against the taxable income (see Circular No. 14 of 2001 dt. 22nd Nov., 2001). In other words, S. 14A clarifies that expenses incurred can be allowed only to the extent they are relatable to the earning of taxable income. In many cases the nature of expenses incurred by the assessee may be relatable partly to the exempt income and partly to the taxable i .....

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ertain incomes are not includible while computing total income as these are exempt under certain provisions of the Act. In the past, there have been cases in which deduction has been sought in respect of such incomes which in effect would mean that tax incentives to certain incomes was being used to reduce the tax payable on the non-exempt income by debiting the expenses, incurred to earn the exempt income, against taxable income. The basic principle of taxation is to tax the net income, i.e., g .....

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l income under the Act". It means that if an income does not form part of total income, then the related expenditure is outside the ambit of the applicability of s. 14A. Further, s. 14 specifies five heads of income which are chargeable to tax. In order to be chargeable, an income has to be brought under one of the five heads. Secs. 15 to 59 lay down the rules for computing income for the purpose of chargeability to tax under those heads. Secs. 15 to 59 quantify the total income chargeable .....

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The theory of apportionment of expenditures between taxable and non-taxable has, in principle, been now widened under s. 14A. Reading s. 14 in juxtaposition with ss. 15 to 59, it is clear that the words "expenditure incurred" in s. 14A refers to expenditure on rent taxes, salaries, interest, etc. in respect of which allowances are provided for(see ss.30to37). 5.3. It is further apposite to refer to the decision of the ITAT Mumbai Bench in the case of ACIT vs Citicorp Finance (India) L .....

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ts. During the course of the assessment proceedings, the AO noticed that the assessee had earned dividend of ₹ 4,85,24,362 which was exempt from tax. Taking note of s. 14A of the IT Act, he called upon the assessee to furnish the details of expenditure incurred in earning the aforesaid dividend and also to explain as to why expenditure on pro rata basis should not be apportioned to the earning of the aforesaid dividend. In reply, the assessee submitted before the AO that it had not incurre .....

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penditure at ₹ 3,68,02,411 being 4.06 per cent of total expenditure as having been incurred in relation to earning the dividend and therefore disallowed the same while computing non-exempt income. On appeal, the learned CIT(A),by his order dt. 16th June, 2003, directed the AO to allow deduction on the gross amount of dividend without allocating any expenditure. Department is aggrieved by the aforesaid order and is now in appeal before this Tribunal. 13. It is difficult to accept the hypoth .....

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day-to-day analysis of market trends and decisions with regard to acquisition, retention and sale of shares at the most appropriate time. They require huge investment in shares and consequential blocking of funds. It is well known that capital has cost and that element of cost is represented by interest. Besides, investment decisions are generally taken in the meetings of the board of directors for which administrative expenses are incurred. It is therefore not correct to say that dividend incom .....

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anagement is involved and therefore proportionate management expenses are required to be deducted while computing the exempt income from dividend. In Harish Krishnakant Bhatt vs. ITO (2004)85TT](Ahd) 872 : (2004) 91 ITD 311 (Ahd), the Ahmedabad Bench of this Tribunal has held that, the dividend income being exempt under S. 10(33), the interest on capital borrowed for acquisition of relevant shares yielding such dividend cannot be allowed deduction by operation of S.14A.In Dy. CIT vs. S.G. Invest .....

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e expression "expenditure incurred by the assessee in relation to income which does not form part of the total income" in s. 14A has to be given a wider meaning and would include both direct and indirect relationship between expenditure and exempt income. Following the decision of the Hon'ble Supreme Court in CI Tvs. United General Trust Ltd. (1994) 116 CTR (SC) 194 : (1993) 200 ITR 488 (SC), the Calcutta Bench of the Tribunal has also held that the interest paid by the assessee be .....

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y that the provisions of s. 14A would not apply to that extent. In Asstt.CIT vs. Premier Consolidated Capital Trust (I) Ltd. (2004) 83 TTJ (Mumbai)843,the Mumbai Bench of this Tribunal has held that the AO is justified in attributing a part of the financial and administrative expenses as expenditure in relation to exempt income and disallowing the same in view of the provisions of s.14A. We find that the aforesaid judgement is squarely applicable to the present case of the assessee. 5.4. The fin .....

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made during the course of the carrying on of business and as is evident from the 9 ITA Nos.1032&1238/Kol/2012 M/s.Coal India Ltd. A.Yr.2008-09 records, substantial investments had been made by the assessee in earlier years, and during the current year as well the assessee made an investment of ₹ 19 crores. Whether to invest or not to invest and whether to retain the investments or to liquidate the same are very strategic decisions which the management is called upon to take. These are .....

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the case of United General Trust Ltd. (supra), applying the decision of Hon'ble Supreme Court in the case of Distributors (Baroda) (P) Ltd. vs. Union of India (1985) 47 CTR (SC) 349 : (1985) 155 ITR 120 (SC), reversed the decision of the Hon'ble Bombay High Court in CIT vs. United General Trust (P) Ltd. (supra), wherein the question was as under: "Whether, on the facts and in the circumstances of the case and in law, the Tribunal was justified in applying the decision of the Bombay .....

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equired to be deducted while computing the dividend income. In the decision of the Hon'ble Calcutta High Court, relied upon by the learned counsel for the assessee, Mr. Dastur, in the case of CIT vs. United Collieries Ltd. (supra), it has been held that if the facts of a particular case so warrant, the allocation can be made towards expenses. In view of the aforementioned discussion and keeping in view the submissions of the learned Departmental Representative, we restore this matter to the .....

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er to the observations made by ITAT Chennai Bench in the case of Lakshmi Ring Travellers vs ACIT in ITA No.2083/Mads/2011 dated 2nd March,2012 wherein it was held as under (relevant portion reproduced) :- Therefore, it becomes clear that even in a case where the assessee claims that no expenditure was so incurred, the statute has provided for a presumptive expenditure which has to be disallowed by force of the statute. In a distant manner, literally speaking, it may even be considered for the pu .....

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law listed as under : (i) Maxopp Investments Ltd. Vs CIT 347 ITR 272 (Del) (ii) Godrej & Boyce Mfg.Co.Ltd. vs DCIT 328 ITR 81 (Bom) (iii) Relaxo Footwears Ltd. Vs Addl.CIT (2012) 50 SOT 102 (iv) REI Agro Ltd. Kolkata vs D CIT ITA No.1331/Kol/2011 (v) DCIT vs Ashish Jhunjhunwala In all of the aforesaid judgements, the ratio was that the AO failed to record any satisfaction u/s 14A read with rule 8D whereas in the present case proper satisfaction was recorded by the AO u/s 14A of the Act. Reli .....

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the decisions of various courts listed as under: (i) Balram Chinni Mills Ltd. Vs DCIT in ITA NO.504/Kol/2011 (ii) CIT vs Hero Cyccles Ltd. 323 ITR 518 (Pun&Har) (iii) Saurabh Agrotech (P) Ltd vs DCIT in ITA No.786/JP/2011 (iv) Hindusthan paper Corporation Ltd. In ITA No.47/Kol/2012. The aforesaid judgements will not support the case of the assessee as the same are rendered in the different facts altogether. In the aforesaid decisions, the ratio was that only those expenditures which has nex .....

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foresaid grounds that there is a computational error in calculation under rule 8D(iii) and the AO has included the investments of the subsidiaries, which have not paid dividends to the assessee. In view of submission made, the said issue is remanded to the file of AO to make a correct computation without including the investments of companies which have not paid any dividend to the assessee company. The aforesaid grounds are, therefore, held to be against the assessee on merits and on the issue .....

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