Safal Construction Pvt.Ltd., ... vs Assessee

IN THE INCOME TAX APPELLATE TRIBUNAL " B " BENCH, AHMEDABAD (BEFORE SHRI SHAILENDRA Kr. YADAV, J.M. & SHRI ANIL CHATURVEDI, A.M.)

I.T. A. No. 2756 /AHD/2011 (Assessment Year: 2008-09)

Safal Construction Pvt. Ltd., V/S A.C.I.T. (OSD) Circle-8, Top Floor, Sarthak Anexe, Ahmedabad Beside Fun Republic, Satellite, Ahmedabad- 380015 (Appellant) (Respondent)

PAN: AACCS 7461C

Appellant by : Shri Vijay Ranjan, A.R. Respondent by : Shri Roopchand, Sr. D.R.

(आदे श)/ORDER

Date of hearing : 27-03-2015 Date of Pronouncement : 28 -05-2015

PER SHRI ANIL CHATURVEDI,A.M.

1. This appeal filed by the Assessee is against the order of CIT(A)-I, Baroda dated 01.07.2011 for A.Y. 2007-08.

2. The relevant facts as culled out from the material on record are as under.

3. Assessee is a company stated to be engaged in the business of building contractor and developer of residential and commercial projects. Assessee filed its return of income for A.Y. 2008-09 on 29.09.2008 declaring total 2 ITA No 2756/AHD/2011 . A.Y. 2008-09 income of Rs. 2,18,86,580/-. The case was selected for scrutiny and thereafter the assessment was framed under section 143(3) vide order dated 28.11.2010 and the total income was determined at Rs. 2,23,10,110/-. Aggrieved by the order of A.O., Assessee carried the matter before ld. CIT(A) who vide order dated 28.08.2011 granted partial relief to the Assessee. Aggrieved by the aforesaid order of ld. CIT(A), Assessee is now in appeal before us and has raised the following ground;-

1. On the facts and in the circumstances of the case the departmental authorities have erred in considering it a fit case for application of section 14Aof the I. T. Act, 1961.

2. Without prejudice, on the facts and in the circumstances of the case, the departmental authorities have erred in treating assessee's share income from firms as tax exempt for the purposes of application of section 14A.

3. Without prejudice, on the and in the circumstances of the case, even the quantification directed by the CIT(A) is erroneous, particularly because the income from interest was required to be netted against expenditure for quantifying disallowance out of interest expenditure.

4. Before us, ld. A.R. submitted that though the Assessee has raised various ground, but the only effective ground is with respect to disallowance u/s. 14A.

5. During the course of assessment proceedings, A.O noticed that Assessee was partners in various partnership firms (the list of firms are listed at page 2 of the order) and it had earned share of profit of Rs. 1,64,58,615/- from those firms which was claimed as exempt u/s. 10(2A) of the Act. He also noticed that the investments of the Assessee in the aforesaid firms was to the extent of Rs. 12.95 crores and Assessee had also paid interest of Rs. 13.98 lacs. He also noticed that Assessee on one hand was paying interest and on the other hand the borrowed funds were invested from which it was receiving tax free income in partnership firms and that there was intermingling of own funds and borrowed funds and therefore disallowance u/s. 14A was warranted.

3 ITA No 2756/AHD/2011 . A.Y. 2008-09

Assessee was asked to show cause as to why no disallowance be made u/s. 14A and in response to which Assessee interalia submitted that the investments have not been made out of borrowed funds and it has not incurred any expenditure for earning partnership income. The submission of the Assessee was not found acceptable to the A.O. He thereafter following the formula prescribed under Rule 8D of the I.T. Rules, worked out the disallowance u/s. 14A at Rs. 10,98,931/-. Aggrieved by the order of A.O., Assessee carried the matter before ld. CIT(A) who granted partial relief to the Assessee by holding as under:-

3.3 Decision:

I have carefully perused the assessment order and the submissions given by the appellant. The A. O. has made the disallowance u/s. 14A by applying the Rule 8D. There are two components of disallowance. The disallowance out of interest and disallowance for administrative expenses.

Regarding the disallowance out of interest, the appellant has submitted that it had sufficient interest free funds and the A. O. has not established any nexus between the funds invested for earning the interest free income and the interest bearing funds borrowed by the appellant. The submission of the appellant is not acceptable. The appellant has borrowed interest bearing funds on which an interest of Rs. 13,98,382/- has been paid. The A. O. has given a finding that there was an intermingling of own funds and borrowed funds. The appellant has also cited various case laws in which he has submitted that if the nexus between incurring expenses and earning of exempt income is not established, no disallowance can be made. I have carefully perused all the judgments cited by the appellant. These judgments are prior to A. Y. 2008-09. Rule 8D has been made effective from A. Y. 08-09. From A. Y. 08-09 a formula has been prescribed for working out the disallowance under section 14A which takes care of all the possible circumstances related to borrowed funds. Therefore, considering all the facts and circumstances and in view of the findings given by the A. O. the argument given by the appellant is not acceptable. It is held that the A. O. has correctly applied the provisions of Section 14A r. w. Rule 8D.

The appellant has also submitted that the administrative expenditure incurred during the current year was purely for the purpose of assessee's main business and hence no disallowance of any administrative expenses should be made on presumption of incurrence. The submission of the appellant is not acceptable as the appellant is a partner in many firms which are involved in the business of construction. The directors of the company and other employees must be spending sufficient time and energy in running day to day business of these firms and also monitoring the business of these firms. Accordingly, it cannot be said that the disallowance has been made only on the basis of presumption. Further, from A. Y. 08-09, the disallowance on account of administrative expenses is to be made by applying the formula given in Rule 8D. The formula in the rule

4 ITA No 2756/AHD/2011 . A.Y. 2008-09 has been prescribed by taking into account all the possible situation and accordingly no argument regarding non - incurrence of expenditure cannot be accepted. The A. O. has correctly computed the disallowance on account of administrative expenses. However, the disallowance is to be recomputed by the A. O. by taking the correct value of average investment as mentioned in the subsequent para.

The appellant has further submitted that the A. O. has made certain mistakes in taking various figures for calculating the disallowance of interest U/S.14A. Each objection taken by him is discussed separately for the sake of convenience. The appellant has submitted that the A. O. has made an error in taking the value of average total assets at Rs.l7,53,77,832/-. The mistake has occurred as the A. O. has taken the values of net current assets. The A. O. should have taken the value of total assets in place of net assets. The A. O. has reduced the current liabilities from the total assets in the balance sheet. The submission of the appellant is correct. The formula provides for average total assets which means the total assets at the beginning of the Financial Year and at the end of the Financial Year should be taken. Therefore, the A. O. is directed to take the value of assets as per the balance sheet in the following manner. Total assets as on 31/03/2007 - Rs. 7,54,71,828/-

Total assets as on 31/03/2008 - Rs.28,12,64,006/-

The appellant has submitted that the A. O. has also made mistake in considering the amount of investment for the purpose of Rule 8D. The appellant has submitted that the quantum of opening and closing investment taken by the A. O. include profit element received from respective partnership firm which should be excluded for the purpose The disallowance should be made taking into the account the funds actually invested by the appellant and the profit element needs to be excluded from the amount of investment. The submission of the appellant is partly correct. For working out the amount of investment, the profit of the partnership firm worked out at the end of the year i.e. on 31/03/2008 should not be taken as it is worked out on that day and has not been invested throughout the year in the activities of the firm, whereas the profit that was worked out in earlier years cannot be excluded as it is part of the investment of the firm and was employed in the business of the firm throughout the year. Therefore, only the profit that is worked out on the last day of the Financial Year can be excluded. The profit of earlier years included in the balances with the firm cannot be excluded. Therefore, the submission of the appellant is partly accepted. The A. O., is therefore, directed to exclude the profit of the A. Y. 08-09 from the investment as on 31/03/2008. Accordingly, the following figures should be taken for the investment As on 31/03/2007 Rs.3,99,35,163/-

As on 31/03/2008 Rs.9,64,75,016/-

The figure of Rs. 9,64,75,016/- has been taken as per the calculation given by the appellant which has been reproduced in his submission in the preceding paragraphs. (Ill) The appellant has further submitted that the quantum of interest expenditure which is not directly attributable to any submitted by him that the interest paid on vehicle loan, FBI, TDS and Service Tax should be excluded from the figure of interest paid during the year. The submission made by the appellant is acceptable. The A. O., is therefore, directed to exclude the following interest expenditure for the purpose of calculation under Rule 8D.

5 ITA No 2756/AHD/2011 . A.Y. 2008-09 Particulars Amount(Rs.) Interest Expenditure as per the P & L Account 13,98,382 Less:(i) Interest on vehicle Loan 2,91,148 (ii) Interest on FBT 5,467 (iii) Interest on TDS 408 (iv) Interest on Service Tax 108 Interest Expenditure to be considered for Rule 8D 11,01,251

The A.O., is therefore, directed to work out the disallowance after taking the various figures as mentioned above.

The appellant in his submission has also taken a stand that profit of the partnership firm are first taxed in the hands of the firm and thereafter divided amongst the partners according to profit sharing ratio and, therefore, the income of the partner of the firm had already suffered taxation. Accordingly, it has been claimed by the appellant that provisions of Section 14A cannot be applied for investment made in partnership firm. The submission made by the appellant is not acceptable as the partnership firm for the purpose of Income Tax Act is a separate assessable entity, partners vis-a-vis partnership firm would stand on the same footing as shareholders vis-a-vis company. Accordingly, the income charged in the hands of the partnership firm cannot be treated as being non - exempt income in the hands of the partners of such firm. Accordingly, the claim of the appellant that the provisions of Section 14A should not be applied is not accepted. The reliance is also placed on the decision of Mumbai ITAT in the case of Dharmasingh M. Popat Vs. ACIT [127 TTJ 61].

The ground of appeal is therefore partly allowed.

6. Aggrieved by the order of ld. CIT(A), Assessee is now in appeal before us.

7. Before us, ld. A.R. reiterated the submissions made before A.O and ld. CIT(A) and further submitted that Assessee was having sufficient interest funds in the form of Share Capital and Reserves and Surplus and which were far in excess of the investments and therefore no disallowance u/s. 14A was warranted in the present case. He pointed out to the copy of the audited Balance sheet and pointed that against the investment of Rs. 12.94 crores, the interest free funds in the form of Share Capital and Reserves and Surplus was to the extent of Rs. 22.25 crores. He further submitted that Assessee has not incurred any expenses for earning tax free income and therefore also no 6 ITA No 2756/AHD/2011 . A.Y. 2008-09 disallowance on account of administrative expenses was warranted. Ld. D.R. on the other hand supported the order of A.O and ld. CIT(A).

8. We have heard the rival submissions and perused the material on record. The issue in the present case is with respect to disallowance u/s. 14A. With respect to disallowance of indirect interest as per Rule 8D(2)(ii) is concerned, we find that the ld. CIT(A), after considering the submissions of the Assessee has directed the A.O to work out the disallowance as directed by him in the order. Before us, ld. A.R. could not point out any fallacy or inconsistency of law in the directions of ld. CIT(A) and therefore we find no reason to interfere as far as the disallowance on account of indirect interest is concerned. With respect to disallowance of administrative expenses as per Rule 8D(2)(iii) is concerned, before us, ld. A.R. has submitted that it has incurred no expenses for earning the income but on the other hand ld. CIT(A) is of the view that the directors and other employees of the Assessee must be spending sufficient and energy in running day to day business and monitoring the business of the firms in which the Assessee is a partner. Before us, ld. A.R. has not placed any material on record like the ledger accounts of the firm, or any other material which could justify of not incurring of expenses including administrative expenses for earning tax free income. At the same time ld. CIT(A) has also presumed the spending of time and energy by the officials of the Assessee for running of the firms from which Assessee has earned tax free income. In view of the contrary submissions of both the parties before us and in the absence of any material on record, we are of the view that this aspect needs a factual verification and finding. We therefore remit the issue to the file of A.O to give a finding on the aforesaid and decide the issue afresh. Needless to state that A.O shall 7 ITA No 2756/AHD/2011 . A.Y. 2008-09 grant adequate opportunity of hearing to the Assessee. The Assessee is also directed to co-operate by promptly furnishing all the required details called for by the A.O failing which the A.O shall be free to decide the issue on the basis of material available on record. With the aforesaid directions, this ground of Assessee is partly allowed for statistical purposes.

9. In the result, the appeal of Assessee is partly allowed for statistical purposes.

Order pronounced in Open Court on 28 - 05 - 2015.

Sd/- Sd/- (SHAILENDRA Kr. YADAV) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER Ahmedabad. TRUE COPY Rajesh

Copy of the Order forwarded to:- 1. The Appellant. 2. The Respondent. 3. The CIT (Appeals) - 4. The CIT concerned. 5. The DR., ITAT, Ahmedabad. 6. Guard File. By ORDER

Deputy/Asstt.Registrar ITAT,Ahmedabad