Income Tax Appellate Tribunal - Mumbai
Irb Infrastructure Developers Ltd ( ... vs Department Of Income Tax on 13 November, 2013
`आयकर अपील य अ धकरण "आई" यायपीठ मंब
ु ई म।
IN THE INCOME TAX APPELLATE TRIBUNAL
MUMBAI BENCH "I", MUMBAI
ी पी.एम. जगताप, लेखा सद य एवं ी ववेक वमा, या यक सद य के सम ।
BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER
AND SHRI VIVEK VARMA, JUDICIAL MEMBER
आयकर अपील सं. : 4395/मम
ु /2012
नधारण वष A.Y. 2007-2008
ITA No. : 4395/Mum/2012
(Assessment year: 2007-2008)
ACIT - 22(3), Vs M/s IRB Infrastructure
3rd Floor, Tower No. 6, Developers Ltd., (Formerly
Vashi Rly Station Complex, known as M/s DVJ Leasing &
Vashi, Navi Mumbai Finance Pvt Ltd),
IRB Complex,
Chandivali Farm,
Andheri (E),
Mumbai -400 072
PAN: AMZPS 2908 Q
अपीलाथ (Appellant) यथ (Respondent)
Appellant by : Shri O.P. Singh
Respondent by : None
सनवाई
ु क तार ख /Date of Hearing : 13-11-2013
घोषणा क तार ख /Date of Pronouncement : 22-11-2013
आ दे श
ORDER
ववेक वमा, या स:
PER VIVEK VARMA, JM:
The appeal is filed by the department against the order of CIT(A) 17, Mumbai, dated 13.04.2012, wherein, the following grounds have been taken:
"1. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) is justified in law in holding that provisions of rule 8D for the purpose of disallowance of expenses under section 14A is not applicable for this year as these provisions are not retrospective in nature and hence cannot be applied to assessment year prior to assessment year 2008-09 in view of decision of Bombay High Court in the case of Godrej and Boyce manufacturing private Limited 328 ITR 81 ignoring the fact that department has not accepted the decision of the Bombay High Court and has filed SPCIAL LEAVE PETITION before Supreme Court.
2. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) is justified in holding that Rule 8D cannot be applied in AY 2007-08, without appreciating the fact that AO has held this method as reasonable for applying in assessee's case for AY 2007-08".
2 M/s IRB Infrastructure Developers Ltd.
(Formerly known as M/s DVJ Leasing & Finance Pvt Ltd) ITA 4395/Mum/2012
2. The solitary issue pertains to the disallowance under section 14A, restricted by the CIT(A) at Rs. 11,59,234/-, against the disallowance computed by the AO at Rs. 1,33,00,000/-.
3. At the time of hearing, the case was called for, but neither any body attended the case, nor there was any prayer for adjournment. As there was no attendance on behalf of the assessee, we propose to proceed ex parte.
4. The facts in brief are that the assessee is in the business of investments, leasing, road maintenance and toll collection. In the assessment proceedings, the AO noticed that there were investments to the tune of Rs. 268.25 crores, on which, the assessee earned dividend income of Rs. 9.37 crores, which was claimed as exempt. The AO, therefore, asked the assessee, as to why disallowance under section 14A not be computed in accordance with Rule 8D, as per the ratio laid down by the Special Bench of the ITAT in the case of ITO vs Daga Capital Management (P) Ltd., reported in 117 ITD 169 (Mum-SB). He, therefore, went on to compute the disallowance under section 14A, in accordance with Rule 8D and added back Rs. 1,33,00,000/-.
5. The assessee, being aggrieved by the decision approached the CIT(A), before whom, the assessee, reiterated its submissions made before the AO and further submitted that Rule 8D, as prescribed, would be applicable from assessment year 2008-09 and onwards. Since, the impugned assessment year is 2007-08, Rule 8D would not be applicable.
6. The assessee, in continuation of its submissions before the CIT(A), submitted the bifurcation of expenses, as under:
Particulars Amount (Rs) Percentage Exempt Income 93,769,082 47% Income other than Exempt income 107,766,042 53% Total 201,535,124 Office & Administrative Expenses Amount (Rs) Disallowed/Considered Separately Donations 750,000 Amortisation of Share Issue Expenses 3,784,562 Amortisation of Debenture Issue 2,003,595 Expenses Provision for Diminution in Value of 811,839 Investments Subtotal 7,349,996 3 M/s IRB Infrastructure Developers Ltd.
(Formerly known as M/s DVJ Leasing & Finance Pvt Ltd) ITA 4395/Mum/2012 Subtotal of Other Expenses detailed 6,217,744 below Total as per Books 13,567,740 Particulars Common Amount (Rs) Proportionate Exp. Disallowance Rates and taxes No 57,960 -
Membership and subscription fees No 10,000 -
Books & Periodicals No 12,500 -
Conference Expenses No 450,000 -
Legal and professional expenses Part 92,552 26,388
Auditor's remuneration (including service Yes 1,346,880 626,668
tax)
Director Sitting Fees Yes 197,742
Advertisement expenses No 425,000 -
Insurance Yes 2,692,941 4,249
Printing and stationary Yes 9,133 84,544
Tender Fees No 181,708 -
Salary No 467,000 162,846
Bank Charges Yes 350,000 56,410
Miscellaneous expenses Yes 121,240
831 387
6217,745 1,159,234
Total Disallowance under section 14A 1,159,234
7. The assessee, accordingly worked out the disallowance, linked towards tax free income of Rs. 11,59,234/-.
8. This amount, as submitted by the assessee, before the CIT(A), was found to be reasonable by the CIT(A). He, therefore, restricted the disallowance to Rs. 11,59,234/-, as against Rs. 1,33,00,000/-, computed by the AO.
9. Against this order, the department is in appeal before the ITAT.
10. Before us, the DR, placed reliance on the order of the AO. However, he accepted the current legal position, as laid down by the Hon'ble Bombay High Court in the case of Godrej & Boyce Mfg. Co. Ltd. vs DCIT, reported in 328 ITR 81, wherein it has been held that disallowance is to be computed under Rule 8D from assessment year 2008-09 and onwards and that some reasonable disallowance should be made.
4 M/s IRB Infrastructure Developers Ltd.
(Formerly known as M/s DVJ Leasing & Finance Pvt Ltd) ITA 4395/Mum/2012
11. We have heard the arguments of the DR and have perused the orders of the revenue authorities. In regard to the financial expenses, it is found from the submissions of the assessee, as incorporated in the impugned order of the CIT(A), that the assessee has paid interest to the tune of Rs. 55,36,341/- out of which Rs. 53,94,940/- was paid on debentures and the balance of Rs. 1,41,401/- was paid towards unsecured loans. This clearly shows that no interest was at all attributable towards any loan taken for the purposes of investment.
12. We also find that the assessee had itself, bifurcated the expenses, which could be attributed towards the disallowance, as per the chart submitted before the CIT(A). It is, therefore, clear from the orders of the revenue authorities that there is really no infirmity in the computation of amount to be disallowed under section 14A and also, no nexus which could be drawn to link administrative expenses to the earning of dividend. Besides this, the financial expenses are also not getting linked to the earning of dividend, therefore, disallowance as computed by the assessee and accepted by the CIT(A) to be reasonable, seems to be fair. We, therefore, sustain the order of the CIT(A) and reject the grounds raised by the department.
13. In the result, the appeal filed by the department is dismissed.
Order pronounced in the open Court on 22nd November, 2013.
Sd/- Sd/-
(पी.एम. जगताप) ( ववेक वमा)
लेखा सद य याईक सद य
(P.M. JAGTAP) (VIVEK VARMA)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Mumbai, Date: 22nd November, 2013
त/Copy to:-
5 M/s IRB Infrastructure Developers
Ltd.
(Formerly known as
M/s DVJ Leasing & Finance Pvt Ltd)
ITA 4395/Mum/2012
1) अपीलाथ /The Appellant.
2) यथ /The Respondent.
3) आयकर आयु त(अपील) -17 Mumbai / The CIT (A)-17, Mumbai.
4) आयकर आयु त -8, Mumbai /The CIT -8, Mumbai,
5) वभागीय त न ध "आई" , आयकर अपील य अ धकरण, मंुबई/ The D.R. "I" Bench, Mumbai.
6) गाड फाईल Copy to Guard File.
आदे शानसार ु /By Order / / True Copy / / [ उप/सहायक पंजीकार आयकर अपील य अ धकरण, मंुबई Dy./Asstt. Registrar I.T.A.T., Mumbai *च हान व. न.स *Chavan, Sr. PS