TMI Blog2019 (4) TMI 1220X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Since the assessee succeeds on the legal ground, therefore, the appeal filed by the Revenue is dismissed. Disallowance u/s 14A - no exempt income - HELD THAT:- Since it is an admitted fact that no exempt income has been received by the assessee during the year, therefore, in view of the latest decision of the Hon'ble Supreme Court in the case of PCIT vs. Oil Industry Development Board of India [ 2019 (3) TMI 1571 - SUPREME COURT OF INDIA] , where it has been held that in absence of any exempt income, no disallowance u/s 14A r.w. Rule 8D is permissible, no disallowance u/s 14A r.w. Rule 8D is called for. - ITA Nos.3833 And 3834/Del/2015, CO Nos.39 & 40/Del/2016 - - - Dated:- 18-4-2019 - Shri R.K. Panda, Accountant Member And Shri Kuldip Singh, Judicial Member For the Assessee : Shri Rajat Jain And Shri Akshat Jain, CAs For the Revenue : Ms Pratima M. Biswas, CIT, DR ORDER PER BENCH: The above two appeals filed by the Revenue are directed against the separate orders dated 26th March, 2015 of the CIT(A)-24, New Delhi relating to assessment years 2006-07 2007-08, respectively. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,68,80,000/- 2. 2007-08 16,28,80,000/- 4. In response to notice u/s 133(6) of the Act dated 3rd January, 2014, M/s Bajaj Hindustan Ltd. replied that they had transactions with the assessee only during the F.Y. 2011-12. The Assessing Officer, therefore, inferred that the purchases shown by the assessee at ₹ 1,68,80,000/- for assessment year 2006-07 are bogus purchases. He, therefore, added the amount of ₹ 1,68,80,000/- to the total income of the assessee. Similarly, he made an addition of ₹ 16,28,80,000/- during the assessment year 2007- 08 on account of bogus purchases. 5. The Assessing Officer further noted that the assessee has made investment of ₹ 27,14,97,669/-. He, therefore, asked the assessee to explain the applicability of provisions of section 14A r.w. Rule 8D of the IT Rules, 1962. Rejecting the various explanations furnished by the assessee and invoking the provisions of section 14A r.w. Rule 8D of the IT Rules, the Assessing Officer made disallowance of ₹ 12,58,73,774/- u/s 14A r.w. Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not made on the basis of incriminating material found during the course of search and seizure operation and the case of relevant assessment year has already been assessed under section 143(1) /143(3) which could not abate on the date of search. 11. The ld. counsel for the assessee, referring to the order of the Tribunal in assessee s own case for assessment years 2008-09 to 2010-11, submitted that under identical circumstances, the Tribunal, following the decision of the Hon'ble Delhi High Court in the case of CIT vs. Kabul Chawla, reported in 380 ITR 573 (Del) has deleted the addition and the appeal filed by the Revenue was dismissed. The facts being similar in the present appeals filed by the Revenue, therefore, the appeals filed by the Revenue have to be dismissed on this ground itself. He further submitted that since the assessee has not received any dividend income during the year which has been claimed as exempt, therefore, in view of the decision of the Hon'ble Supreme Court in the case of Cheminvest Ltd. vs. CIT reported in 61 taxmann.com 118 , the provisions of section 14A of the Act r.w. Rule 8D of the IT Rules will not apply and therefore no di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the appellant s own case for A.Y 2008-09 (A.No. 357/14- 15), I have rejected the present ground. Following my said order and for the same reasons, I hereby reject ground No. 1. 5. Assessee has pressed into service order of NTPC 2002-TIOL279-SC-ITLB However, it is pertinent to note that here the Apex Court has held: We fail to see why Tribunal should be prevented from considering a question of law arising from assessment proceedings although not raised earlier. 6. Here it is pertinent to note that the pre-condition that issue should arise from assessment proceedings has not been satisfied. 7. Also, it is submitted that the NTPC case has not specifically overruled the Judgment in the case of Gurjargravures [Addl. CIT Vs Gurjargravures (P.) Ltd [19781 111 ITR 1 (SC)] which bars raking up of an issue not raised earlier. 8. It is also pointed out that in the NTPC case, the Hon ble court has relied on the case of Jute Corporation of India which in turn has relied on the case of Kanpur Coal. However, in Kanpur Coal the issue has been raised before both the A.O. and the first Appellate authority. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... para 8 of the order is being reproduced as under:- 8. We have considered the rival submissions made by both the sides and perused the material available on record. A bare perusal of the assessment order shows that there is no mention of any incriminating material found during the course of search with respect to the unexplained advertisement expenses. There is also no incriminating material on which the Assessing Officer has made the other addition i.e., on account of disallowance u/s 14A of the IT Act. Therefore, it is quite clear that the addition in the instant case has been made on the basis of post search inquiry and the addition is not based on any incriminating material found during the course of search. Therefore, the decision of the Hon'ble Delhi High Court in the case of CIT vs. Kabul Chawla (supra) will be clearly applicable to the facts of the present case wherein it has been held that completed assessments can be interfered with by the Assessing Officer while making assessments u/s 153A only on the basis of some incriminating material unearthed during the course of search which was not produced or not disclosed or not made known in the course of ori ..... X X X X Extracts X X X X X X X X Extracts X X X X
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