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Dcit, Ludhiana v/s M/s. Malwa Cotton Spinning Mills

    ITA No. 431 to 433/CHD of 2017

    Decided On, 07 September 2018

    At, Income Tax Appellate Tribunal Chandigarh

    By, THE HONOURABLE MR. SANJAY GARG
    By, JUDICIAL MEMBER & THE HONOURABLE MS. ANNAPURNA GUPTA
    By, ACCOUNTANT MEMBER

    For the Appellant: Geetinder Maan, Sr.DR, For the Respondent: M.L. Joshi, Advocate.



Judgment Text

Sanjay Garg, Judicial Member:

1. The captioned appeals are preferred by the Revenue against the separate orders dated 16.4.2013, 21.4.2014 & 8.4.2015 for assessment years 2010-11 to 2012-13 respectively of Commissioner of Income Tax (Appeals)-4, Ludhiana [hereinafter referred to as CIT(A)].

2. Since the facts and issue involved in all these appeals are identical, hence, these were heard together and are being disposed of by this common order. ITA No. 431/Chd/2017 for assessment year 2010-11 is taken as a lead case.

3. The Revenue in this appeal has taken the following grounds of appeal:-

1. Whether on the facts and circumstances and in law, the learned Commissioner of Income Tax (Appeals) was justified in deleting the addition of Rs. 29,27,987/- made by the Assessing Officer under section 36(l)(va) of the Income-tax Act. 1961 and in not appreciating the fact that section 36(1 )(va) is related to employees' contribution and section 43B is related to employer's contribution and due date for crediting the employees' contribution has been clearly defined in Explanation given below section 36(l)(va) of the Act.

2. Whether on the facts and circumstances of the case, the learned Commissioner of Income Tax (Appeals) has erred in not taking into consideration the decision of the Hon'ble Gujarat High Court in the case of CIT-II vs. Gujarat State Road Transport Corporation (ITA No. 637 of 2013) and Circular No. 22/2015 dated 17-12-2015 while allowing relief to the assesses.

3. Whether on the facts and circumstances of the case, the learned CIT(A) has erred in law in deleting the addition of Rs.16,51,447/- made on account of disallowance of Bank Charges.

4. Whether on the facts and circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals) was justified in restricting the addition of Rs. 59,48,019/- to Rs. 4,99,945/- made by the Assessing Officer under section 14A of the Income Tax Act, 1961 read with Rule 8D of the Income Tax Rules, 1962 and thereby allowing relief of Rs. 54,48.074/- to the assesses.

5. That the appellant craves leave to add or amend any ground of appeal before it is finally disposed off.

4. Ground Nos. (i) & (ii): Ground Nos. (i) & (ii) of the Revenue's appeal relates to the deletion of disallowance made by the Assessing officer u/s 36(1)(va) of the Income-tax Act, 1961 (in short 'the Act') amounting to Rs. 29,27,987/-. The Assessing officer made the impugned disallowance as he found that assessee had not deposited the Employees Contribution to EPF, ESI and labour welfare fund within the prescribed due date although the payment was made before the due date of filing of the return. The Ld. CIT(A) deleted the said disallowance while relying upon the various case laws including the decision of the Hon'ble Supreme Court in the case of 'CIT Vs. Alom Extrusions Ltd.' (2009) 185 taxman 416 / 319 ITR 306 (SC).

5. After hearing the Ld. representatives of the parties, we noted that the Ld. CIT(A) inter alia has followed the decision of the Hon'ble Jurisdictional Punjab & Haryana High Court in the case of 'CIT Vs. Hernia Embroidery Mills (P) Ltd.' (2014) 98 DTR (P&H) 107 which has further followed the decision of the Hon'ble Supreme Court in the case of 'CIT Vs. Alom Extrusions Ltd.'(supra). We find no infirmity in the order of the CIT(A) on this issue and the same is, therefore, upheld.

6. Ground No.(iii). Vide ground No.(iii), the Revenue has agitated the action of the CIT(A) in deleting the addition made on account of disallowance of 'bank charges'. The Ld. counsel for the assessee has brought our attention to paras 8.1 and 8.2 of the Spinning Mills Ltd, Ludhiana impugned order, wherein, the Ld. CIT(A) has considered the explanation of the assessee that bank charges were incurred to process the Working Capital Loan Application of the assessee. These facilities were used to meet the day to day requirement of the funds for the business of the company. The Ld. CIT(A) considering the submissions and further relying upon his decision for the assessment years 2008-09 and 2009-10 on this issue, has held that the same was not a capital expenditure but was Revenue expenditure.

We do not find any infirmity in the order of the CIT(A) on this issue also and the same is accordingly upheld.

7. Ground No. (iv): The Revenue vide ground No. (iv) has agitated the action of the CIT(A) in restricting the addition of Rs. 59,48,019/- to Rs. 4,99,945/- made by the Assessing officer u/s 14A of the I.T.Act read with Rule 8D of the Income Tax rules. The Ld. Counsel for the assessee has invited our attention to para No. 10 of the impugned order of the CIT(A), wherein, the Ld. CIT(A) after considering the submissions of the assessee has given a categorical finding that the assessee had used his own funds for making investments in the shares of the sister concern. The Ld. CIT(A) considering the submissions held that no interest disallowance under Rule 8D (2)(ii) was warranted, however, he upheld the disallowance on account of administrative expenditure u/s 8D(2)(iii) of the Income Tax Rules.

8. After going through the impugned order of the CIT(A), we do not find any infirmity in the same. Even otherwise, the Ld. Counsel Spinning Mills Ltd, Ludhiana for the assessee has submitted that the total disallowance made during the year u/s 14A read with rule 8D(2)(iii) has exceeded the total dividend income earned by the assessee during the year. Considering the above submissions, the decision of the Hon'ble Jurisdictional High Court in the case of ' CI T, Far id ab ad Vs. Lak han i Mark eting In c.' 226 Taxman 45 (P&H) and o f th e Hon'b le D elh i High Cou r t in th e case o f ' Cheminvest Ltd Vs. ITO' (2015) 378 ITR 33 (Delhi) are squarely applicable, wherein, it has been held that the disallowance under section 14A cannot exceed the total exempt income earned by the assessee during the year.

In view of this, we do not find any infirmity in the order of the CIT(A) on this issue and the same is upheld.

9. Ground No. (v) is general in nature and does not require and adjudication.

In view of the above, this appeal of the Revenue is hereb y dismissed.

10. The Revenue in this appeal has taken the following grounds of appeals.

(i) Whether on the facts and circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals) was justified in restricting the addition of Rs. 63,51,915/- to Rs. 4,99,945/- made by the Assessing Officer under section 14A of the Income Tax Act, 1961 read with Rule 8D of the Income Tax Rules, 1962 and thereby allowing relief of Rs. 58,52,000/- to the assessee.

(ii) Whether on the facts and circumstances of the case the ld CIT(A) was justified in deleting the addition of Rs. 59,06,076/- made by the Assessing officer under section 36(1)(iii) of the Act and not appreciating the action of the Assessing officer of allocating the interest of Rs. 59,06,706/- to the cost of shares under section 48(ii) of the act.

(iii) Whether on the facts and circumstances and in law, the learned Commissioner of Income Tax (Appeals) was justified in deleting the addition of Rs. 59,14,030/-- made by the Assessing Officer under section 36(l)(va) of the Income-tax Act. 1961 and in not appreciating the fact that section 36(1 )(va) is related to employees' contribution and section 43B is related to employer's contribution and due date for crediting the employees' contribution has been clearly defined in Explanation given below section 36(l)(va) of the Act.

(iv) Whether on the facts and circumstances of the case, the learned Commissioner of Income Tax (Appeals) has erred in not taking into consideration the decision of the Hon'ble Gujarat High Court in the case of CIT-II vs. Gujarat State Road Transport Corporation (ITA No. 637 of 2013) and Circular No. 22/2015 dated 17-12-2015 while allowing relief to the assesses.

(v) Whether on the facts and circumstances of the case, the learned CIT(A) has erred in law in deleting the addition of Rs.34,37,969/- made on account of disallowance of Bank Charges.

(vi) Whether on the facts and circumstances of the case, the Ld. CIT(A) was justified in restricting the adjustment to the book profits under section 115JB to Rs. 4,45,999/- against the adjustment to the book 431 to 433/Chd/2017- Ludhiana profits made under section 115JB by the Assessing officer at Rs. 63,51,945/-

(vii) That the appellant craves leave to add or amend any ground of appeal before it is finally disposed off.

11. Ground No.(i) : The issue raised in ground No. (i) is identical to that of ground No. (iv) in ITA No. 431/Chd/2017, for assessment year 2010-11(above).

In view of our findings given above while deciding the issue taken by the Revenue vide ground No. (iv) for assessment year 2010- 11 of the said appeal, we do not find any infirmity in the order of the CIT(A) on this issue and the same is upheld.

12. Ground No. (ii) - In respect of the ground No.(ii), the Ld. Counsel for the assessee has invited our attention to the impugned order of the CIT(A) relating to the disallowance made by the Assessing officer u/s 36(i)(iii) of Rs. 59,06,706/- which has been deleted by the Ld. CIT(A) observing that assessee had made investment in shares of its sister concern out of his own funds and that no borrowed funds were used for making such investment.

We have gone through the paras 7.2 & 7.3 of the impugned order of the CIT(A) and do not find any reason to interfere in the well-reasoned order of the CIT(A) on this issue. The findings of the CIT(A) on this issue are upheld.

13. Ground Nos. (iii) to (v) : These grounds are similar to that of the ground Nos. (i) to (iii) of the Revenue appeal for assessment year 2010-11 in in Ludhiana In view of our findings given above while deciding the issue taken by the Revenue vide ground Nos. (i) to (iii) for assessment year 2010-11 of the appeal, we do not find any infirmity in the order of the CIT(A) on this issue and the same are upheld.

14. Ground No. (vi) : This ground is squarely covered by the decision of the Special Bench (Delhi) of the Tribunal in the case of 'ACIT Vs. Vireet Investment Pvt. Ltd.' ITA No. 502/Delhi/2012 relating assessment year 2008-09 order dated 16.6.2017, wherein, the matter has been duly deliberated upon and the issue has been decided in favour of the assessee holding that adjustment to book profits cannot be made in respect of disallowance of expenditure u/s 14A of the Act under normal provisions. .

15. Ground No. (vii) is general in nature and does not require and adjudication.

In view of this, we do not find any infirmity in the order of the CIT(A) on this issue and the same is upheld ITA No. 433/Chd/2017 (A.Y.2012-13)

16. The Revenue in this appeal has taken the following grounds of appeals.

(i) Whether on the facts and circumstances and in law, the learned Commissioner of Income Tax (Appeals) was justified in deleting the addition of Rs. 1,01,91,602/- made by the Assessing Officer under section 36(l)(va) of the Income-tax Act. 1961 and in not appreciating the fact that section 36(1 )(va) is related to employees' contribution and section 43B is related to employer's contribution and due date 431 to 433/Chd/2017-

M/s Malwa Cotto;n Spinning Mills Ltd, Ludhiana for crediting the employees' contribution has been clearly defined in Explanation given below section 36(l)(va) of the Act.

(ii) Whether on the facts and circumstances of the case, the learned Commissioner of Income Tax (Appeals) has erred in not taking into consideration the decision of the Hon'ble Gujarat High Court in the case of CIT-II vs. Gujarat State Road Transport Corporation (ITA No. 637 of 2013) and Circular No. 22/2015 dated 17-12-2015 while allowing relief to the assesses.

(iii) Whether on the facts and circumstances of the case, the learned CIT(A) has erred in law in deleting the addition of Rs.26,79,668/- made on account of disallowance of Bank Charges.

(iv) Whether on the facts and circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals) was justified in restricting the addition of Rs. 83,45,479/- to Rs. 4,99,945/- made by the Assessing Officer under section 14A of the Income Tax Act, 1961 read with Rule 8D of the Income Tax Rules, 1962 and thereby allowing relief of Rs. 78,45,534/- to the assesses.

(v) Whether on the facts and circumstances of the case the Ld. CIT(A) was justified in deleting the addition of Rs. 39,13,172/- made by the Assessing officer under section 36(1)(iii) of the Act and not appreciating the action of the Assessi

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ng officer of allocating the interest of Rs. 39,13,172/- to the cost of shares under section 48(ii) of the Act. (vi) That the appellant craves leave to add or amend any ground of appeal before it is finally disposed off. 17. Ground Nos. (i) to (iv): These grounds are similar to that of the ground Nos. (i) to (iv) of the Revenue appeal for assessment year 2010-11 in in ITA No. 431/Chd/2017. In view of our findings given above while deciding the issue taken by the Revenue vide ground Nos. (i) to (iv) for assessment year 2010-11 of the appeal, we do not find any infirmity in the order of the CIT(A) on this issue and the same are upheld. 18. Ground No.(v) : In respect of the ground No.(v), the Ld. Counsel for the assessee has invited our attention to the impugned order of the CIT(A) relating to the disallowance made by the Assessing officer u/s 36(i)(iii) of Rs. 39,13,172/- which has been deleted by the Ld. CIT(A) observing that assessee had made investment in sister concern out of his own funds and that no borrowed funds were used for making such investment. 19. We have gone through the para 11.2 of the impugned order of the CIT(A) and do not find any reason to interfere in the well- reasoned order of the CIT(A) on this issue. The findings of the CIT(A) on this issue are upheld. In view of our findings given above, all the appeals of the Revenue are hereby dismissed.
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