Income Tax Appellate Tribunal - Ahmedabad
Gujarat Power Corporation Ltd. - Gpcl, ... vs The Jcit, Gandhinagar Range,, ... on 10 July, 2019
IN THE INCOME TAX APPELLATE TRIBUNAL
"D" BENCH, AHMEDABAD
BEFORE SHRI PRAMOD KUMAR, VICE PRESIDENT &
Ms. MADHUMITA ROY, JUDICIAL MEMBER
Sl. ITA No(s) Asstt. Appeal(s) by
Nos. Year(s) Appellant vs. Respondent
Appellant Respondent
1. 1172/Ahd/2016 2011-12 Joint Commissioner of Gujarat Power
Income Tax (OSD), Corporation Ltd., 6 t h
Gandhina gar Floor, Block No.8,
Udhyog Bhavan, Sector
- 11, Gandhina gar - 382
011.
PAN No. AAACG 5596 J
2. 1361/Ahd/2016 2011-12 Gujarat Power Joint Commissioner of
Corporation Ltd., 6 t h Income Tax (OSD),
Floor, Block No.8, Gandhinagar.
Udh yo g Bhavan, Sector
- 11, Gandhina gar -
382 011.
3. 1928/Ahd/2016 2012-13 --do-- --do--
Appellant by : Shri Uma Shankar Prasad, Sr. D.R.
Respondent by : Shri S. N. Soparkar & Parin Shah, A.R.
Date of Hearing 30.04.2019
Date of Pronouncement 10.07.2019
ORDER
PER Ms. MADHUMITA ROY - JM:
These first two cross appeals being ITA Nos.1172 & 1361/Ahd/2016 filed by the revenue and assessee are directed against separate orders dated 16.02.2016 passed by the Commissioner of Income Tax (Appeals)-7, Ahmedabad arising out of the order dated 31.01.2014 issued by the Jt.
ITA Nos.1172, 1361 & 1928/Ahd/2016 Gujarat Power Corporation Ltd.
Asst. Years -2011-12, 2011-12 & 2012-13 -2- Commissioner of Income Tax- Gandhinagar Range, Gandhinagar under section 143(3) of the Income Tax Act, 1961 (hereinafter referred as to 'the Act') for Assessment Year 2011-12 and the third appeal being ITA No.1928/Ahd/2016 filed by the assessee is directed against the order dated 15.06.2016 passed by the Learned CIT(A)-Gandhinagar, Ahmedabad arising out of the order dated 31.03.2015 passed by the Income Tax Officer, Ward-2, Gandhinagar u/s 143(3) of the Act for A.Y. 2012-13.
Since all the appeals relate to the same assessee, the same are heard analogously and are being disposed of by a common order.
ITA No. 1172/Ahd/2016 A.Y. 2011-12 (Revenue's appeal) :2. Ground No.1 : The order passed by the Learned CIT(A) in allowing the revised computation of income has been challenged by the department.
3. The brief facts leading to the case is this that the assessee company filed its return of income declaring total income at Rs.4,72,68,230/- on 29.09.2011. The income u/s 115JB has been stated to be Rs.7,35,54,261/-. During the course of assessment proceeding, the assessee was asked to file the copy of income tax return, statement of computation of income and tax audit report. In response thereto by and under a letter dated 01.08.2013, the assessee replied referring a letter dated 30.12.2011 filed to the Learned JCIT, Gandhinagar Range on 02.02.2012 informing him that the return was filed on 29.09.2011 on the basis of provisional accounts. However, after the ITA Nos.1172, 1361 & 1928/Ahd/2016 Gujarat Power Corporation Ltd.
Asst. Years -2011-12, 2011-12 & 2012-13 -3- finalization of accounts on 01.12.2011 certain changes in the final audited account as compare to provisional unaudited accounts were made. Finally, the total income was revised upwards from Rs.4,72,68,230/- to Rs.5,26,28,888/-. More TDS claim was also made and the refund claim was also increased. Further, the assessee submitted an explanation vide letter dated 31.07.2013 to the authorities. According to the Learned AO since the assessee has not filed the revised return of income, the plea of the assessee was not sustainable. Further that, instead of the AO the Learned JCIT was informed about such revised computation of income. The Learned AO was also of the opinion that merely communicating a revision of income without actually filing the return of income, there was every chance that the assessee's income would be assessed at a lower income. Had the case of the assessee being not selected for scrutiny the assessee could have got away with lower returned income. He, therefore, worked out the difference between the gross total income as per revised computation and gross total income as per return amounting to Rs.56,42,795/- and added the same to the total income of the assessee. In appeal, the Learned CIT(A) deleted the same; hence the instant appeal.
5. At the time of hearing of the instant appeal, the Learned Senior Counsel appearing for the assessee submitted before us that the Learned AO passed the order on a wrong notion saying the assessee by and under the reply dated 31.07.2013 gave an impression that revised return was indeed filed but it is a fact that the assessee merely filed a letter offering higher income. Since there was certain changes in the final audit report as compare ITA Nos.1172, 1361 & 1928/Ahd/2016 Gujarat Power Corporation Ltd.
Asst. Years -2011-12, 2011-12 & 2012-13 -4- to provisional unaudited accounts, the assessee requested the Learned JCIT being the Assessing Officer to consider the same at the time of finalization of the assessment proceeding which fact was also not taken into consideration by the Learned AO. The assessee filed complete details of changes in income. Along with letter dated 30.12.2011 the revised computation of income was also filed much before the date of issuance of notice u/s 143(2) dated 10.09.2012 which was received by the assessee on 17.09.2012. It was further pointed out by the Learned Senior Counsel that in one hand the Learned AO has not accepted the revised computation on the other hand he has made disallowance and additions based on such revised income which is contradictory and thus disallowance is liable to be deleted. On the other hand, the Learned DR relied upon the order passed by the Learned AO.
6. Heard the respective parties, perused the relevant materials available on record. It appears from the records that the Learned AO has disallowed Rs.56,42,795/- on the ground that the appellant has revised its income without filing a revised return. On the other hand, it was the case of the assessee that the return was filed based on provisional, un-audited accounts and upon finalization of such accounts on 01.12.2011 a revised computation of income was prepared which was made known to the authorities with a request to consider the same on 30.12.2011. This is just a revised statement that too much prior to the issuance of notice u/s 143(2) dated 10.09.2012. Thus, it is an admitted fact that appellant has revised its income on its own after finalization of accounts. We have also carefully considered the order ITA Nos.1172, 1361 & 1928/Ahd/2016 Gujarat Power Corporation Ltd.
Asst. Years -2011-12, 2011-12 & 2012-13 -5- passed by the Learned CIT(A) who has taken into consideration the entire aspect of the matter. When the Learned AO has not accepted the revised computation the disallowance and additions ought not to have been made on such revised income of the assessee; this particular aspect of the matter was considered by the Learned CIT(A) while deleting addition made by the Learned AO. The reasoning given by the Learned CIT(A), is according to us, just and proper without any infirmity so as to warrant interference. The question is accordingly answered in the affirmative, i.e. in favour of the assessee and against the revenue. Consequently, the appeal fails and accordingly dismissed.
7. Ground No.2 This ground relates to deleting of addition on account of rates and taxes of Rs.45,12,220/-.
8. The assessee company claimed an amount of Rs.45,12,220/- towards rates and taxes in the Profit and Loss account. Since similar issues arisen in A.Ys. 2006-07, 2007-08, 2008-09, 2009-10 and 2010-11 and the amount was disallowed and an explanation was called for from the assessee. However, the submission of the assessee was not found suitable and hence addition to the tune of Rs.45,12,220/- was made by the Learned AO which was in turn deleted by the Learned CIT(A). Hence, the instant appeal before us.
9. Heard the respective parties, perused the relevant materials available on records. It appears from the records that during the assessment proceeding assessee submitted the ledger account of rates and taxes of Rs.45,12,220/-
ITA Nos.1172, 1361 & 1928/Ahd/2016 Gujarat Power Corporation Ltd.
Asst. Years -2011-12, 2011-12 & 2012-13 -6- which pertains to payments made towards land revenue and education CESS on land situated at various villages of Bhavnagar Districts. Such payment was made to the revenue authorities. The said expenditure was recurring in nature; it had not brought into existence of any new fixed asset by incurring such expenses, hence allowable as the case made out by the assessee. The Learned CIT(A) took the same view for A.Ys. 2006-07, 2007-08, 2008-09, 2009-10 and 2010-11 as also placed on record by the assessee before the Learned AO. The Learned CIT(A) has allowed such expenses under the head rates and taxes in terms of the provision of section 43B of the Act in those year under consideration. The assessee has claimed the expenses under the head rates and taxes in terms of the provision of section 43B. The details of payment made before the due date of filing of return which was claimed as allowable expenses were also placed on record by the assessee. The Learned AO while holding such explanation rendered by the assessee not acceptable also invoked section 14A for the purpose of computing total income of the assessee indicating that no deduction shall be allowed in respect of expenditure incurred by the assessee in relation to income which does not form part of the total income under this Act. Ultimately, an amount of Rs.45,12,220/- was disallowed.
On the other hand, we find from the records that the issue has already been decided by the predecessor of the Learned CIT(A) for A.Y. 2005-06 with the following observation:
"Besides the fact that the expenses involved are recurring in nature and do not bring into existence ant new fixed assets, as emphasized by the Authorized Representative, laying out of such expenses is a necessity to keep control on the assets: Payment of taxes of any kind, whether one ITA Nos.1172, 1361 & 1928/Ahd/2016 Gujarat Power Corporation Ltd.
Asst. Years -2011-12, 2011-12 & 2012-13 -7- time at recurring nature, never enhance the value of the asset being used in question nor brings into existence of any advantage of enduring nature, Clearly, land revenue, though levied on the land, a fixed asset for the appellant, in itself is n6t a capital expense but is only revenue expense paid out to fulfill the statutory requirement emanating out of the ownership of the land."
The Learned CIT(A) following the same deleted such addition which, in our considered view is just and proper following the rule of consistency which has been failed to be controverted by the Revenue. Hence, this ground of appeal preferred by the Revenue is found to be devoid of any merit and thus dismissed.
10. Ground No.3 This ground relates to deleting of addition invoking section 14A of the Act to the tune of Rs.47,23,579/-.
11. Upon verification of the Profit and Loss account for A.Y. 2010-11, it was found that the assessee has earned dividend income of Rs.1,60,74,728/-. The assessee also claimed the income to be exempted u/s 10(34) of the Act. The assessee has further disallowed a sum of Rs.1,00,000/- towards expenses related to the earning of such exempt income. The details of investment made by the assessee in respect of three companies were duly submitted before the Learned AO. It was the case of the assessee that since there were no borrowing and no interest expenses incurred for earning the exempt income disallowance cannot be made. Further that, disallowance made in respect of interest expenses earlier was also deleted by the appellate authorities. Alternatively, the assessee submitted that if any expenses could be sought to have been incurred in relation to such exempt income the same could be all administrative nature ITA Nos.1172, 1361 & 1928/Ahd/2016 Gujarat Power Corporation Ltd.
Asst. Years -2011-12, 2011-12 & 2012-13 -8- for receiving the cheques and depositing the same in the Bank account. According to the assessee, the approximate sum was Rs.1000/- only to be the expenses incurred in relation to exempt income applying under provision of section 14A of the Act. However, since the assessee has already disallowed Rs.1,00,000/- no further disallowance can be made. However, applying section 14A r.w.r. 8D, the Learned AO disallowed Rs.47,23,579/- which was deleted by the Learned CIT(A) relying upon the judgment passed by the Jurisdictional High Court in assessee's own case in Tax Appeal No.1587 of 2009 for A.Y. 2002-03 dated 28.03.2011. Hence, the instant appeal before us.
12. At the time of hearing of the instant appeal, the Learned Senior Counsel appearing for the assessee submitted before us that the issue is squarely covered by the judgment passed by the Hon'ble Gujarat High Court in the matter of PCIT-vs-Shreno Ltd. reported in [2019] 102 taxmann.com 129 (Gujarat). On the contrary the Learned DR relied upon the order passed by the Learned AO.
13. Heard the respective parties, perused the relevant materials available on record. It appears from the records that the assessee has received dividend income of Rs.1,60,74,728/- from shares held by it. Taking into consideration the disallowance made in the earlier year the Learned AO has applied section 14A r.w.r. 8D of the Income Tax Rule and disallowed the impugned amount of Rs.47,23,579/-. However, it has been pointed out by the Learned CIT(A) that most of the investment made by the assessee were not earlier years.
ITA Nos.1172, 1361 & 1928/Ahd/2016 Gujarat Power Corporation Ltd.
Asst. Years -2011-12, 2011-12 & 2012-13 -9- We have also considered the judgment passed by the Jurisdictional High Court in the matter of PCIT-vs-Shreno Ltd. In the said matter, business funds and investment funds of the assessee were mixed up and it was not appreciated by the Learned AO in holding that the funds deployed for earning tax free income were entirely out of interest free funds and resultantly the entire interest cost was to be located on two activities leading to taxable income and thus section 14A r.w.r. 8D was invoked. The Learned Tribunal in appeal, was of the view that the Assessing Officer had recorded a specific satisfaction before resorting to disallowance applying section 14A r.w.r. 8D to this effect that disallowance offering by the assessee was inadequate to cover the expenses incurred in earning tax exempt income. Application of Rule 8D cannot be automatic hence disallowance was deleted. It is pertinent to mention that the assessee had on its own added back an amount of Rs.1,00,000/- as disallowance under rule 14A towards administrative expenses incurred for earning such exempt income. The order passed by the Learned Tribunal was thus upheld. We find the assessee's case is squarely covered factually and legally, hence the assessee is entitled to relief as claimed for which was rightly allowed by the Learned CIT(A) by deleting the addition made by the Learned AO without any infirmity so as to warrant interference. The question is accordingly answered in the affirmative, i.e. in favour of the assessee and against the revenue. Consequently, the appeal fails and accordingly dismissed.
14. Ground No.4 This ground relates to deleting addition on account of software development expenses of Rs.49,635/-.
ITA Nos.1172, 1361 & 1928/Ahd/2016 Gujarat Power Corporation Ltd.
Asst. Years -2011-12, 2011-12 & 2012-13
- 10 -
15. The assessee has debited an amount of Rs.49,635/- on account of "software expenses" as compared to Rs. Nil in the earlier year. Fact remains that the assessee purchased Pay Roll system from Guj Info Petro Ltd. While claiming deduction the assessee relied upon the decision of Madras High Court in the case of CIT-vs-Southern Roadways Ltd. reported in (2009) 183 Taxman 234 wherein it was held that though the payment for application software gives an enduring benefit it does not result in the acquisition of any capital assets; such revenue expenditure is allowable. However, such plea of the assessee was not found acceptable by the Learned AO. The assets has been acquired and put to use for less than 180 days was allowed depreciation at 12.50% by treating it as "intangible assets". The balance amount of Rs.43,431/- being 87.50% of Rs.49,635/- was disallowed. In appeal, the same was deleted by the Learned CIT(A) holding the same as revenue expenditure relying upon the judgment passed by the CIT-vs-Southern Roadways Ltd. (supra). Hence, the appeal.
16. At the time of hearing of the instant appeal, the Learned Senior Counsel relied upon the order passed by the Learned CIT(A). Further that he has also placed reliance in the matter of N. J. India Invest Ltd. reported in 215 Taxman 78 (Guj) in support of his argument in favour of the assessee. However, the Learned DR failed to controvert such contention made by the Learned Senior Counsel appearing for the assessee. It is a settled principle of law that the expenditure in question is Revenue in nature and thus allowable as decided in different pronouncement including in the matter of N. G. India Invest Ltd. as relied upon by the Learned AR. Hence, we find no infirmity in the order passed by the Learned CIT in deleting such addition relying upon the ratio laid ITA Nos.1172, 1361 & 1928/Ahd/2016 Gujarat Power Corporation Ltd.
Asst. Years -2011-12, 2011-12 & 2012-13
- 11 -
down as above. Thus Revenue's appeal is found to be devoid of any merit, hence dismissed.
17. Ground No.5 This issue relates to deleting addition on account of depreciation on printers and other accessories.
18. The assessee claimed depreciation at 60% on equipments other than computers. The assessee's case is this that the printer and scanner etc are integral part of the computer system and be treated as computer for the purpose of allowing higher rate of depreciation. Therefore treating the same as part of office equipment and in turn reducing the claim of depreciation is not permissible as the case made out by the assessee before the Learned AO. However, the Learned AO allowed 15% of depreciation instead of 60% as claimed by the assessee and addition of Rs.3,86,549/- was made. In appeal, the same was deleted by the Learned CIT(A) relying upon the judgment passed by the Hon'ble ITAT, Delhi Bench in the case of ACIT-vs-Container Corporation of India Ltd. in ITA Nos. 2851 & 3680/Del/2007 wherein it was held that output device such as computers, scanners etc are computer peripherals and found essential parts of the PC being a computer supporting system hardware. The assessee was found eligible for depreciation @ 60% and addition made by the Learned AO was thus deleted in appeal.
19. At the time of hearing of the instant appeal the Learned Senior Counsel appearing for the assessee submitted before us that the case is squarely covered in the matter of BSES Yamuna Corporation Ltd. reported in 358 ITR 47 (Delhi) which has been failed to be controvert by the Learned DR.
ITA Nos.1172, 1361 & 1928/Ahd/2016 Gujarat Power Corporation Ltd.
Asst. Years -2011-12, 2011-12 & 2012-13
- 12 -
20. Heard the respective parties, perused the relevant materials available on record. We have carefully considered the order passed in the matter of BSES Yamuna Corporation Ltd. We find that the matter is squarely covered by the ratio laid down therein and hence we find no infirmity in the order passed by the Learned CIT(A) in deleting the addition of Rs.3,86,549/- as made by the Learned AO by allowing only 15% instead of 60% as claimed by the assessee. Hence, revenue's appeal is found to be devoid of any merit and thus dismissed.
21. Ground No.6 This ground relates to deleting addition on disallowance of Rs.1,00,000/- while calculating income u/s 115JB of the Act.
22. It is the case of the assessee that the Learned AO has made the disallowance of Rs.47,23,579/- u/s 14A but while calculating book profit the amount of Rs.48,23,579/- was added. The Learned CIT(A) deleted such addition made by the Learned AO to the tune of Rs.47,23,579/- and disallowance of Rs. 1,00,000/- u/s 14A made by the appellant has been directed to be considered while calculating income u/s 115JB by the Learned AO which has been challenged before us by the Revenue. The explanation given by the Learned CIT(A) in passing such direction upon the Learned AO is according to us justified in the present facts and circumstances of the case and hence upheld.
23. In the result, revenue's appeal is dismissed.
ITA Nos.1172, 1361 & 1928/Ahd/2016 Gujarat Power Corporation Ltd.
Asst. Years -2011-12, 2011-12 & 2012-13
- 13 -
ITA No.1361/Ahd/2016 for A.Y. 2011-12 (Assessee's appeal):24. Ground No.1 This ground relates to disallowance of contribution to employee's provident fund of Rs.3,35,551/-.
25. The assessee has made the payment of employee's contribution of an amount of Rs.3,35,551/- towards Provident Fund beyond due date on certain occasions which was disallowed and added to the total income of the assessee in view of the judgment passed by the Jurisdictional High Court in the case of CIT-vs-Gujarat State Road Transport Corporation. In appeal, the same was confirmed in terms of section 36(1)(va). It is the case of the assessee that such payment was made within grace period of 5 days and therefore the assessee is entitled to get the relief under the Act. Reliance was made on the judgment passed by the Hon'ble Jurisdictional High Court in the matter of Amoli Organics (I) Ltd. reported in 41 taxmann.com 149 (Guj). In that view of the matter it was prayed by the Learned Senior Counsel appearing for the assessee that the issue be remitted to the file of the Learned AO for verification of such contention made by the assessee and to grant relief thereof. The Learned DR, however, has failed to controvert such contention made by the representative of the assessee. Hence, we set aside the issue to the file of the Learned AO for verification of the same upon considering the evidence on record and also considering the evidences which the assessee may choose to file at the time of hearing of the matter and to pass orders in accordance with law positively upon affording an opportunity of being heard to the assessee. In the result, assessee's ground of appeal is allowed for statistical purposes.
ITA Nos.1172, 1361 & 1928/Ahd/2016 Gujarat Power Corporation Ltd.
Asst. Years -2011-12, 2011-12 & 2012-13
- 14 -
26. Ground No.2 The assessee has questioned the confirmation of addition on account of interest income.
27. It appears that during the course of assessment proceeding, the assessee was asked to provide TDS reconciliation, and to clarify as to whether entire income shown in TDS certificate is reflected in the Profit and Loss account or not whereupon the assessee provided the TDS reconciliation. But upon perusal of the same it was seen that the income was not booked and/or short-booked in respect of the three parties:
a. GSFS - Rs.12,840/-
b. SBI - Rs.8,17,339/-
c. GMR Gujarat Solar Power Pvt. Ltd. - Rs.9,70,00,000/-
While explaining such mismatch of recording of income in the books of accounts of the assessee qua form 26AS, it was submitted that the assessee has booked income as per books of account and policies regularly followed by the company and regarding difference as per Annual Tax Statement (ATS) and books of account, the same was not communicated to the concerned parties. The interest income earned from the differences of GMR, GSFS and SBI was ultimately added by the Learned AO to the income of the assessee on the ground that both the parties have confirmed the correctness of payment of amount and deduction of TDS. In appeal the Learned CIT(A) restricted it to GSFS and SBI. As we find from the records as well as the orders impugned before us that in support of recording the assessee has reiterated his plea that the assessee company booked its income as per books of accounts and the policies regularly followed by the company. However, no supporting ITA Nos.1172, 1361 & 1928/Ahd/2016 Gujarat Power Corporation Ltd.
Asst. Years -2011-12, 2011-12 & 2012-13
- 15 -
documents has been placed by the assessee either before the Learned AO or before the first appellate authority showing that the amount received from GSFS and SBI was offered as income though TDS has been claimed by the assessee and hence we do not find any merit in the Learned AR's submission on this issue for deletion of such addition on the basis of the judgment passed in the matter of DCIT-vs-Yahoo India Pvt. Ltd. reported in ITA No.3800/Mum./2014 for A.Y. 2008-09. We, therefore, confirm the addition made by the authorities below and dismiss the ground of appeal of the assessee.
28. Ground No.3 This ground of appeal is consequential in nature hence no order need be passed.
ITA No.1928/Ahd/2016 for A.Y. 2012-13 (Assessee's appeal):29. Ground No.1 This ground relates to disallowance u/s 14A r.w.r. 8D to the tune of Rs.51,61,079/- under normal provision.
30. Upon verification of the Profit and Loss account for A.Y. 2011-12, it was found that the assessee has earned dividend income of Rs.1,71,72,097/- during the year under consideration which was claimed to be exempt u/s 10(34) of the Act in the statement of total income. Further that, the assessee has disallowed suo moto sum of Rs.1,00,000/- as expenses relating to the earning of such exempt income. The assessee's case is that investment on which exempt income has been earned were not made from interest bearing funds as there are no borrowings made by the company which is evident from ITA Nos.1172, 1361 & 1928/Ahd/2016 Gujarat Power Corporation Ltd.
Asst. Years -2011-12, 2011-12 & 2012-13
- 16 -
the balance sheet. Ultimately, applying section 14A r.w.r 8D the total disallowance has been worked out to Rs.51,61,079/- by the Learned AO, addition whereof was in turn confirmed by the Learned CIT(A). Hence, the instant appeal.
31. We find that this particular issue as already been dealt with by us in ITA No.1172/Ahd/2016 for A.Y. 2011-12 in Revenue's appeal whereby and whereunder such disallowance made by the authorities has been deleted by us relying upon the judgment passed by the Jurisdictional High Court in the matter of PCIT-vs-Shreno Ltd. reported in [2019] 102 Taxman.com 129 (Guj). Hence, in the absence of any changed circumstances the same shall apply mutatis mutandis. Hence, the ground of appeal preferred by the assessee is allowed.
32. Ground No.2 This ground relates to disallowance u/s 14A by applying provision of Rule 8D to the tune of Rs.51,61,079/- while calculating income under provision of section 115JB of the Act.
33. It appears that the Learned AO disallowed Rs.51,61,079/- u/s 14A of the Act by applying provision of Rule 8D while calculating income under the provision of section 115JB - MAT (disallowance as per assessment order Rs.52,61,079 = already disallowed in the return of Rs.1,00,000/-). It is the case of the assessee that the Learned AO erroneously disallowed u/s 14A by applying the provision of Rule 8D while calculating the income under provision of Section 115JB - MAT when it has been decided in number of judgments that so far as computation of adjusted book profit is concerned ITA Nos.1172, 1361 & 1928/Ahd/2016 Gujarat Power Corporation Ltd.
Asst. Years -2011-12, 2011-12 & 2012-13
- 17 -
provision of section 2 and sub section 3 of section 14A cannot be imported into clause (f). In support of his argument he has also relied upon the judgment passed by the Special Bench of ITAT at Delhi in the matter of ACIT, Circle 17(1)-vs-Vireet Investment (P.) Ltd. On the other hand, Learned DR relied upon the order passed by the authorities below.
34. Heard the respective parties, perused the relevant materials available on record. We have also carefully considered the judgment in the matter of Vireet Investment (P.) Ltd. The relevant portion whereof is as follows:
"■ The question is, whether the amount or amounts of expenditure relatable to exempt income as contemplated in clause (f) to Explanation 1 to section 115JB(2) could be arrived at by resorting to provisions of section 14A or not. The department, contention, is that the object of section 14A and clause (f) to Explanation 1 to section 115JB(2) is same and, therefore, it cannot be disputed that section 14A can be resorted to for finding out the expenditure relatable to any income which is exempt. [Para 6.2] ■ When the question arises as to the applicability of similar provisions in different parts of the statute, then it is not only legitimate but proper to read both the provisions in their context. If context is same, different meaning cannot be assigned. It is to be found out that what mischief was intended to be remedied by inserting a particular section. The intention of the legislature once is manifested in a particular section in the statute then said intention cannot be given a different meaning, if a similar provision has been incorporated in a different section in the statute. The intention of the Legislature must be found out by reading the statute as a whole. [Para 6.3] ■ Literal meaning cannot always be followed logically, because sometimes it tends to defect the obvious intention of the Legislature and results in producing a wholly unreasonable result. [Para 6.4] ■ Thus, the submission of Department is that when basic object and purpose of section 14A and clause (f) to Explanation 1 to section 115JB(2) is same, then it cannot be said that merely because section 14A has not been mentioned in ITA Nos.1172, 1361 & 1928/Ahd/2016 Gujarat Power Corporation Ltd.
Asst. Years -2011-12, 2011-12 & 2012-13
- 18 -
clause (f), it has no application. The mode of computation with same purpose cannot be differently made merely because section 115JB creates a deeming section. The object of deeming provisions is to substitute the total income computed under normal provisions by that computed under MAT provisions. Submission of department is that this cannot be extended to computation for same items under normal as well as MAT provisions. Under the provisions of section 14A, both direct and indirect expenses in relation to earning of exempt income are to be reduced. Therefore, different meaning cannot be ascribed in clause (f) and, therefore, the submission of the assessee that only directly relatable expenditure is to be reduced, cannot be accepted. [Para 6.10] ■ In view of above discussion, the computation under clause (f) of Explanation 1 to section 115JB(2), is to be made without resorting to the computation as contemplated under section 14A, read with rule 8D of the Income-tax Rules, 1962."
We find from the issue citation that in the same set of facts the computation under clause (f) of explanation 1 to section 115JB as has been done by the authorities below u/s 14A r.w.r. 8D of the Income Tax Act, 1962 is not permissible and hence such disallowance is quashed the addition is therefore deleted. This ground of appeal preferred by the assessee is thus allowed.
35. Ground No.3 This ground relates to disallowance of belated contribution to Employees Provident Fund of Rs.83,651/-.
36. It was found from the records that the Provident Fund in respect of employee's contribution was made late i.e. beyond the due date on certain occasion by the assessee details whereof is reflected in the order passed by the Learned AO. Finally relying upon the judgment passed by the Jurisdictional ITA Nos.1172, 1361 & 1928/Ahd/2016 Gujarat Power Corporation Ltd.
Asst. Years -2011-12, 2011-12 & 2012-13
- 19 -
High Court in the matter of CIT-vs-GSRTC Ltd. reported in 366 ITR 170 (Guj) in view of the provision laid down u/s 36(1)(va) of the Income Tax Act, 1961 read with section 2(24)(x), total sum of Rs.6,51,122 was disallowed since the said sum was credited by the assessee to the employee's accounts in the relevant fund after the due date prescribed in the concern Act which was confirmed by the First Appellate Authority.
37. At the time of hearing of the instant appeal, the Learned Senior Counsel appearing for the assessee fairly submitted before us that the issue has been decided by the Jurisdictional High Court in the matter of CIT-vs-GSRTC Ltd. (supra) against the assessee. Hence respectfully relying upon the ratio laid down by the said judgment we confirm such disallowance made by the authorities below. Hence, this ground of appeal preferred by the assessee is dismissed.
38. In the result, Revenue's appeal is dismissed and assessee's both appeals are partly allowed.
This Order pronounced in Open Court on 10/07/2019
Sd/- Sd/-
( PRAMOD KUMAR) ( Ms. MADHUMITA ROY )
VICE PRESIDENT JUDICIAL MEMBER
Ahmedabad; Dated 10/07/2019
PritiYadav, Sr.PS
ITA Nos.1172, 1361 & 1928/Ahd/2016
Gujarat Power Corporation Ltd.
Asst. Years -2011-12, 2011-12 & 2012-13
- 20 -
आदे श क त ल प अ े षत/Copy of the Order forwarded to :
1. अपीलाथ / The Appellant
2. यथ / The Respondent.
3. संबं धत आयकर आयु त / Concerned CIT
4. आयकर आयु त(अपील) / The CIT(A).
5. वभागीय त न ध, आयकर अपील!य अ धकरण, अहमदाबाद / DR, ITAT, Ahmedabad
6. गाड' फाईल / Guard file.
आदे शानुसार/ BY ORDER, स या पत त //True Copy// उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील य अ धकरण, अहमदाबाद / ITAT, Ahmedabad
1. Date of dictation 01.07.2019 + 09.07.2019 (Dictation Pages 22)
2. Date on which the typed draft is placed before the Dictating Member 05.07.2019 + 10.07.2019
3. Other Member.....................
4. Date on which the approved draft comes to the Sr.P.S./P.S...08.07.2019 + 10.07.2019
5. Date on which the fair order is placed before the Dictating Member for pronouncement......
6. Date on which the fair order comes back to the Sr.P.S./P.S.......
7. Date on which the file goes to the Bench Clerk.....................
8. Date on which the file goes to the Head Clerk..........................................
9. The date on which the file goes to the Assistant Registrar for signature on the order..........................
10. Date of Despatch of the Order..........................................