Lakshmiwadi Mines & Minerals Pvt. Ltd. , ... vs Assessee

आयकर अपीलीय अिधकरण, अिधकरण मुंबई IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES 'A' MUMBAI सव ौी आय.पी. बंसल, याियक सदःय एवं ौी चं पुजारी, लेखा सदःय के सम । BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER

ITA NO. 7542/Mum/2011 (A.Y.2008-09)

Lakshmiwadi Mines & Minerals The Dy. Commissioner of Income- Pvt. Ltd. tax -(OSD) Somaiya Bhavan, 45-47, M.G. Road Vs. Circle- 2 (2), 5th Floor, Fort Aayakar Bhavan, M.K. Road Mumbai-400 001 Mumbai-400 020. GIR No./PAN : AAACL 1756 F (Respondent) (Appellant )

ITA NO. 7850/Mum/2011 (A.Y.2008-09)

The Dy. Commissioner of Income-tax - Lakshmiwadi Mines & Minerals (OSD) Pvt. Ltd. Mumbai-20. Vs. Mumbai-1. (Appellant ) (Respondent)

Assessee by : Shri Vipul Joshi Revenue by : Shri Asghar Zain

Date of hearing : 18/02/2015 Date of pronouncement : 25/02/2015

ORDER

PER CHANDRA POOJARI, A.M:

These are cross appeals directed against the order dated 5/8/2011 passed by the ld. CIT(A) for the assessment year 2008-09. First we take up assessee's appeal in ITA No. 7542/Mum/2011 . Assessee has raised the following ground :

"1. The ld. CIT(A) erred in principle the disallowance of interest of Rs.18,37,848/-. Your appellants submit that the said disallowance is not warranted and the same be deleted."

2 ITA No.7542 & 7850/M/11

2. Facts of the issue are that the assessee earned dividend income of Rs. 7,53,460/- and claimed the same as exempt u/s. 10 of the Act Further on perusal of the Balance Sheet, the assessee's investment as on 31.3.2008 was Rs.11,91,40,827/-. Since it had earned exempt income, the provisions of section 14A r.w. rule 8D got triggered off. After confronting the appellant with the said provisions, the AO went on to work out a disallowance of Rs. 18,37,848/- .

2.1 On appeal, CIT(A) observed that, the issues arising out of application of sec. 14A and Rule 8D now stand settled by Godrej and Boyce Mfg. Ltd. vs. DCIT(2010) 43 DTR 177(Bom) in which it was decided that the provisions of Rule 8D are not ultra vires the provisions of section 14A and do not offend Article 14 of the Constitution. Further, in view of clear enunciation in the Memorandum explaining the provisions of the Finance Bill, 2006 and further clarification by CBDT vide Circular No.14 of 2006, sub section (2) of section 14A is applicable from assessment year 2007-08 onwards . The AO has worked out the disallowance in terms of Rule 8D r.w. section 14A of the Act. There is no infirmity in the said action and to that extent the order is upheld. However, in so far as the actual working of the amount disallowable, he found some merit in the contentions of the appellant. He directed the AO to look into it and make necessary modifications in the quantum disallowed after due verification and as per law. Against this the assessee is in appeal before us.

3. The ld. AR submitted that the AO has disallowed Rs. 12,55,339/- out of interest paid of Rs.27,19,306/-. He has further disallowed interest of Rs.24,88,610/- on account of investments in non-income earning advances. Thus the total amount disallowed of Rs.37,43.9491- as against the actual interest of Rs. 27,19,306/- . It is also stated that for AY 2007-08 there was no disallowance of interest u/s.14A. Since no interest was disallowed u/s.14A, it confirms that interest bearing funds were not utilized for investments earning exempt income. During this year, fresh investments were only Rs.52,78,582/- clearly from non-interest bearing funds. The ld. Counsel for the assessee stated that the assessee has an office at Mumbai and a manufacturing unit in Gandhidham. This borrowing is being used by the manufacturing unit. The only interest 3 ITA No.7542 & 7850/M/11

paid is in respect of the bank borrowing at the Gandhidham unit. As compared to this, the bank account at Mumbai from which investments are made is not a loan. It is a current account on which there is no interest. Further, the company has share capital of Rs.48,51,200, Reserves of Rs.20,48,91,228/- whereas the borrowings are only of Rs.4,66,76,032/- interest paid during the year on borrowing is Rs.2,07,76,032/- which are for earning business income in Gandhidham.

4.1 Without prejudice to the above, it is contented that if the interest is to be disallowed u/s. 14A, it may be disallowed bearing in mind that in the assessment order in the calculation of the disallowance u/s. 14A read with rule 8D the investments were considered net off the revaluation reserve i.e. at the cost of investments. Besides, the interest is to be taken after deducting the interest disallowed for the interest free advances in the assessment order from the interest actually paid after which the disallowance u/s. 14A works out to be Rs.10,42,046/-. Without prejudice, even if the actual interest paid is considered the disallowance u/s. 14A works out to be Rs.11,96,341/- as against the disallowance of Rs. 12,55,339/- made in the assessment order. The ld. DR relied on the order of CIT(A).

5. We have heard both parties and perused the material available on record. In this case CIT(A) though upheld the applicability of Sec.14A of the Income tax Act, he has given direction to AO to look into the actual amount incurred for earning exempt income and recompute the same for the purpose of disallowance. Hence, the assessee's grievance on the findings of the CIT(A) is misconceived. We do not find any infirmity in the order of the CIT(A) and the same is confirmed. This ground of the assessee is rejected.

6. In the result, ITA No.7542/Mum/11 of the assessee is dismissed.

ITA No.7850/Mum/2011 (Department's appeal): 7. In this appeal the revenue has raised the ground with regard to deletion of addition of Rs.1.25 crores received by assessee M/s. Doulos Finance Ltd. under section 4 ITA No.7542 & 7850/M/11

68 of the Act. Facts of the case are that the assessee had received a sum of Rs.1,25,00,000/- as unsecured loan from Doulus Finance Ltd.,Mumbai. The assessee could only produce photostat copy of the confirmation letter from it. Thereafter, a notice u/s. 133(6) was issued to Doulus Finance Ltd. vide which the party was required to provide the details like PAN No., proof of return of income, evidence with regard to transactions with the assessee for F.Y. 2007-08. Neither any reply was received nor any submission was filed by the above mentioned party. As the party had failed to appear or to submit any detail with regard to the financial transaction that it had with the asessee, it was given a show cause vide office letter dated 7.12.2010 as to why this amount should not be treated as unexplained credit under section 68 of the Act. In reply, the assessee again submitted the same photostat copy of confirmation and failed to provide any explanation with regard to the creditworthiness of the party i.e., Doulus . Finance Ltd. At no point of time during the assessment proceedings, the assessee submitted any details with regard to the creditworthiness and genuineness of the entity from which it took a substantial amount of loan to the tune of Rs.1,25,00,000/-. Accordingly, the amount of Rs 1,25,00,000/- was treated as unexplained credit under section 68 of the Act and was added to the total income.

8. On appeal, the ld. CIT(A) observed that there is no justification for the addition made which has been made in a rather casual manner. Even if it is admitted that the assessee filed only a photocopy of the confirmation which is factually incorrect as evident from the assessment records, the contents therein were not doubted in any manner. Moreover, the said creditor being located in Mumbai itself, the AO did not make any effort to make spot verification rather than taking adverse view merely for the fact that no response was made by the said party before completion of the assessment. It is also found that confirmations of the said party sent through post alongwith relevant details called for by the AO have been duly submitted and placed on record. There is sufficient merit in the submissions made by the assessee in the matter. All material facts on record prove the identity of the lender and also genuineness of the transaction. The transaction made through banking channels is duly reflected in the 5 ITA No.7542 & 7850/M/11

respective bank accounts. Moreover, the assessee has also returned back the said amount again through banking channels. The creditor is regularly assessed to income tax and copy of return for the relevant year as also copy of bank statement have also been submitted by it. Therefore, there is nothing to doubt its creditworthiness of the assessee. In the light of such facts, it is held that the addition has been incorrectly made and deleted the same. Against this, the revenue is in appeal before us.

9. The ld. DR submitted that an amount of Rs.1.25 crores was deposited into M/s. Doulos Finance Ltd.'s account on 7/3/2008 with Bank of India. On the same day, the exact amount of Rs.1.25 crores was transferred to assessee's bank account. There is no proper explanation regarding source of this fund. So capacity of the lendor is not proved and it is required to be enquired into. Further it is submitted that ld. CIT(A) ignored the fact that a notice u/s. 133(6) remained unanswered by the party. Therefore the assessee was given a show cause notice vide letter dated 7.12.2010 whereby he was informed about the non response from the party. In response to this the assessee again forwarded same photocopy of confirmation vide its submission dated 15/12/2010. According to the ld. DR the credit worthiness of the creditor was not proved and the same is to considered as unexplained credit in the hands of the assessee .

9.1 On the other hand the ld. AR for the assessee submitted that the assessee has filed the confirmation of the transaction before the AO vide DFL letter dated 17/11/2010 and assessee also submitted copy of confirmation of transaction and balance outstanding from the party vide letter dated 17/11/2010. Further he submitted that this amount was paid off in subsequent year and a fresh confirmation of nil balance was also filed before lower authorities. According to the ld. AR all the requirement of section 68 has been duly complied with by the assessee and the assessee is not required to rove the source of source. For this purpose he relied on the judgment of Hon'ble Supreme Court in the case of CIT vs. Orissa Corpn. Pvt. Ltd.(159 ITR 78) and submitted that the assessee has discharged the primary burden cast upon it and thereafter it is the duty of the Revenue to cause necessary enquiry if the Revenue failed to cause 6 ITA No.7542 & 7850/M/11

necessary enquiry it cannot be given second innings to carryon further enquiry. He relied upon the order of CIT(A).

10. We have heard the rival parties and perused the material available on record. In this case it is seen that from the bank account of the lender with Bank of India Ghatkopar Branch(W) an amount of Rs.125.00 lacs was deposited into their account on 7/3/2008, on the same day the same amount has been transferred to assessee/s bank account. When the AO enquired about this credit with the assessee, the assessee filed letter dated 28/11/2010 from DFL attached with a statement of account of Doulos Finance Ltd. where there was outstanding balance of Rs.125.00 lacs. The assessee also filed copy of balance sheet as on 31/3/2008 of M/s. Doulos Finance Ltd. before CIT(A). We are not able to trace balance outstanding in the name of the assessee to the tune of Rs.125.00 lacs in that balance sheet. The statement of account filed by the assessee does not contain the name of the signatory or seal of the company.

10.1 It is also noticed that during the course of assessment the AO issued noticed to Doulas Finance Ltd. on 23/11/2010 which was served on 24/11/2010 requiring to provide details like PAN, proof of return of income, evidence with regard to transaction with the assessee for Financial year 2007-08. The party failed to appear before AO. Consequent to this, show cause notice dated 7/12/2010 was issued to the assessee. Against this the assessee filed same photocopy of letter of confirmation letter before AO on 15/12/2010. However, CIT(A) gave a finding that the contents in the photocopy of the confirmation letter were not doubted by AO and also he observed that, the AO without carrying on requisite enquiry has drawn adverse inferences which is not correct. According to CIT(A) the assessee proved the identity of the parties and the genuineness of transaction. He deleted the addition. In our opinion the CIT(A) is not justified in deleting the addition when the enquiry was stopped on account of failure on part of the assessee and not because of failure on part of AO. In spite of issue of notice u/s. 133(6) there is no proper representation by M/s. Doulos Finance Ltd. and same was informed to the assessee. The assessee at that point of time instead of filing all necessary information before AO, assessee opted once again to file same Photostat 7 ITA No.7542 & 7850/M/11

copy of confirmation which is not proper. Once the AO rejected the assessee's explanation and requested the assessee to file further documents in support of the genuineness and credit worthiness of the parties, it was not open to the assessee to state that the AO failed to carry on enquiry. Even though the assessee offered explanation by way of confirmation, its inability to secure any further confirmation or documentary proof in support of source, that creditor has independent sources to lend money to assessee carries relevance. Genuineness of transaction cannot be said to have been proved by the confirmation letter filed by the assessee and thus, initial burden placed on the assessee is also not discharged. The finding of the CIT(A) that assessee has discharged the identity and capacity of the parties and genuineness of transaction is not borne out of records. In our opinion the judgment in the case of Orissa Corporation Pvt. Ltd. has no application because the facts in that case have a material effect with the credit worthiness and credibility of the creditors was not doubted in any manner. In this case inherent improbability to produce the creditor could be sufficient cause to reject the assessee's claim even if simple statement of account of creditors was filed by the assessee. Genuineness of credit cannot be accepted merely because identity is established and amount received by cheque. Being so, in our opinion it is appropriate to remit the entire issue to the file of AO, for fresh consideration, with the direction to assessee to discharge the burden cast upon it so as to prove the identity and capacity of the parties, and the genuineness of the transaction. This ground of the Revenue is partly allowed for statistical purposes.

11. In the result, revenue appeal in ITA No.7850 is partly allowed for statistical purposes and assessee's appeal in ITA No.7542/Mum/2011 is dismissed.

Order pronounced in the open court on 25/02/2015 आदे श क घोषणा खुले यायालय म# $दनांकः 25/02/2015 को क गई ।

Sd/- Sd/- (आय.पी. बंसल / I.P. BANSAL) (चं पुजारी /CHANDRA POOJARI ) याियक सदःय / JUDICIAL MEMBER लेखा सदःय / ACCOUNTANT MEMBER मुंबई Mumbai; $दनांक Dated 25/02/2015 व.िन.स./Jv, Sr. PS 8 ITA No.7542 & 7850/M/11

आदे श क ूितिल*प अमे*षत/Copy षत of the Order forwarded to : 1. अपीलाथ- / The Appellant 2. ू.यथ- / The Respondent. 3. आयकर आयु/(अपील) / The CIT(A)- 4. आयकर आयु/ / CIT 5. *वभागीय ूितिनिध, आयकर अपीलीय अिधकरण, मुंबई / DR, ITAT, Mumbai 6. गाड फाईल / Guard file.

आदे शानुसार/ ार BY ORDER, स.या*पत ूित //True Copy//

उप/सहायक उप सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपीलीय अिधकरण, अिधकरण मुंबई / ITAT, Mumbai