ACIT Vs M/s Om Metal Infraproject Ltd. (ITAT Jaipur)
Clause (iic) inserted in Explanation 1 to section 115JB by the Finance Act, 2015 is remedial and curative in nature as it was brought in the statute to provide similar benefit to the member of the AOP which was earlier applicable to the partner of the firm, therefore, it is to be reckoned as retrospective. This proposition can be viewed from another angle that, the amending Act had sought to bring parity between similar kind of situation faced by two class of assessees, where in one case, statute envisaged that if the income of the assessee is not taxable, that is, in case of partner the share income from the partnership firm, then it cannot be taxed as book profit under MAT liability. Similarly, in second case also, that is, in case of member of an AOP where no income-tax is payable on the share of a member of an AOP in certain situations in terms of section 86, should also not be brought to tax under MAT liability. The legislature by this amendment has thus removed this imparity between two classes of assessees so that mischief or prejudice caused to other class of assessees should be removed. The mischief which has been sought to be remedied is that the share income of the member of the AOP which was not taxable in terms of section 86 was getting taxed under MAT while computing the book profit. This was also never the purpose of section 115JB to tax any income or receipts which is otherwise not taxable under the Act. If the intention of legislature was always that income which is not taxable under the normal provisions of the Act should not be brought to tax under MAT also, then it has to be interpreted that such a benefit has to be given to all and where the income is otherwise not taxable under the Act cannot be brought to be taxed under MAT. Therefore, any remedy brought by an amendment to remove the disparity and curb the mischief has to be reckoned as curative in nature and hence, is to be held retrospectively. Accordingly, this issue is allowed in favour of the assessee.
Thus, it was held that the amendment was brought to remove the hardship and bring the parity of the income being share in the association of persons or body of individuals, which is otherwise not liable to tax as per the provisions of Section 86 of the Act, the same shall have etrospective application. In absence of any contrary precedent brought to our notice and to maintain the rule of consistency, we follow the decision of Mumbai Benches of the Tribunal in the case of M/s GoldgergFinance Pvt. Ltd. Vs ACIT (supra). Accordingly, we do not find any error or illegality in the order of the ld. CIT(A) qua this issue. Hence, this ground of revenue’s appeal stands dismissed.
FULL TEXT OF THE ITAT JUDGMENT
This appeal by the revenue is directed against the order dated 28/03/2018 of ld. CIT(A)-I, Jaipur for the A.Y. 2014-15. The revenue has raised following grounds of appeal:
“1. Whether on the facts and circumstances of the case and in law the Ld. CIT(A) was justified in deleting the addition on account of employees contribution to ESI & PF without appreciating the fact the issue is pending before the Hon’ble Apex Court in CIT V/s M/s SBBJ in SLP (c) No. 16249/2014?
(ii) Whether on the facts and circumstances of the case and in law the Ld. CIT(A) was justified in deleting the disallowance of Rs. 44,02,000/- u/s 14A r.w.r 8D of the I.T. Act when the assessee has not suo moto made disallowance u/s 14A and therefore the case is distinguishable from the case of M/s Maxopp Investment Ltd. V/s CIT (SC) ?
(iii) Whether on the facts and circumstances of the case and in law the CT(A) was justified in deleting the adjustment of Rs. 19,19,91,664/- made u/s 115JB with regard to the income of the JV?
(iv) Whether on the facts and circumstances of the case and in law the CIT (A) was justified in holding that clause (iic) inserted in Explanation 1 to sec. 115JB by Finance Act, 2015 is remedial and curative in nature whereas in the Act this clause is applicable from 01.04.2016 i.e. for A.Y. 201 6-17?
The appellant craves the right to amend alter or add to any of the grounds of appeal given above.”
2. Ground No. 1 of the appeal is regarding the disallowance made on account of Employees’ Contribution towards ESI and PF as the payment was not made within the prescribed time limit as per the respective Acts, which was deleted by the ld. CIT(A).
3. We have heard the ld CIT-DR as well as the ld AR of the assessee and considered the relevant material on record. At the outset we note that this issue is covered by the decision of the Hon’ble Jurisdictional High Court in the case of CIT Vs SBBJ (2014) 363 ITR 70. We further note that an identical issue was considered and decided by this Tribunal in assessee’s own case for the A.Y. 2009-10, 2010-11 and 2012-13. The Hon’ble Jurisdictional High Court vide order dated 22/9/2017 has considered this issue in para 4.2 as under:
“4.2 The issue No. 2, the same is now covered by the decision of this Court in CIT Vs State Bank of Bikaner & Jaipur (2014) 363 ITR 70 against which SLP is preferred therefore, in view of the earlier decision taken by this Court, the issue is answered in favour of the assessee subject to SLP pending before the Supreme Court.”
Accordingly in view of the earlier decision of this Tribunal as well as the decision of Hon’ble High Court in assessee’s own case, we do not find any error or illegality in the order of the ld. CIT(A) qua this issue. Hence, this ground of revenue’s appeal stands dismissed.
4. Ground No. 2 of the appeals is with regard to disallowance made U/s 14A of the Income Tax Act, 1961 (in short the Act) read with Rule 8D of the Income Tax Rules, 1962 (in short the Rules), which was deleted by the ld. CIT(A). During the course of assessment proceedings, the Assessing Officer noted that the assessee has made investment of Rs. 44.02 crores in shares and income from same is exempt. Accordingly, the Assessing Officer proposed to make disallowance U/s 14A of the Act readwith Rule 8D of the Rules. The Assessing Officer has computed the disallowance as per amended Rules 8D and equivalent to 1% of average investment amounting to Rs. 44.02 lacs.
5. The assessee challenged the action of the Assessing Officer before the ld. CIT(A) and submitted that the investment was an old investment in the sister concern of the assessee and no fresh investment was made in the year under consideration. Further the assessee has not used any borrowed fund for the purpose of investment in question and therefore, when there is no expenditure incurred by the assessee, no disallowance is called for U/s 14A of the Act. The assessee has also pleaded that there is no dividend income either accrued or received by the assessee, hence no disallowance is called for U/s 14A of the Act. The ld. CIT(A) after considering the fact that as per the assessee’s balance sheet as on 31/3/2014, the assessee was having interest free fund of Rs. 513.45 crores, which was much more than the investment. Accordingly, following the various decisions on the point, the ld. CIT(A) has deleted the disallowance made by the Assessing Officer.
6. Before us, the ld DR has submitted that the predominant purpose of investment is not relevant for the purpose of disallowance U/s 14A of the Act as held by the Hon’ble Supreme Court in the case of M/s Maxopp Investment Ltd. V/s CIT 402 ITR 640. The ld DR has submitted that the Assessing Officer has computed disallowance as per clause (ii) of Rule 8D, which provides disallowance equivalent to 1% of the average investment.
7. On the other hand, the ld AR of the assessee has submitted that the assessee’s own interest free fund comprising of share capital and reserve and surplus was Rs. 513.45 crores as on 31/3/2014 whereas no fresh investment was made by the assessee during the year under consideration for which the provisions of Section 14A of the Act can be applied. The total investment is in the subsidiary/sister concerns of the assessee and therefore, in absence of dividend accrued or received by the assessee, no disallowance can be made U/s 14A of the Act. The ld AR has relied upon the decision of Hon’ble Gujarat High Court in the case of CIT Vs Gujarat State Fertilizers & Chemicals Ltd. (2013) 217 Taxman 343 (Guj) as well as the decision of Hon’ble Bombay High Court in the case of Godrej & Boycee Manufacturing Co. Ltd. Vs. CIT 328 ITR 81, which has been upheld by the Hon’ble Supreme Court. Thus, the ld AR hassubmitted that it is settled proposition of law that there cannot be any disallowance U/s 14A of the Act when the assessee is having interest free sufficient funds and no expenditure has been incurred by the assessee in respect of the investment in question.
8. We have heard the rival submissions as well as the relevant material on record. We note that the Assessing Officer has given details of investment which was considered as exempt for the purpose of disallowance U/s 14A of the Act. The Assessing Officer has given the details as opening investment and closing investment of some figure of Rs. 44.02 crores. Thus, it is admitted fact that there was no fresh investment during the year under consideration falling in the category of exempt investment. It is also not in dispute that the assessee has neither received any dividend nor any dividend accrued or due on the investmentin question which is in the sister concerns of the assessee. Thus, when no dividend was received by the assessee during the year under consideration and also no fresh investment was made during the year then no expenditure has been incurred by the assessee during the year under consideration except the interest expenditure if any for the purpose of investment. Since the investment in the sister concerns are old one,therefore, an identical issue was considered and decided by this Tribunal in assessee’s own case for the earlier assessment years including the A.Y. 2012-13 which was challenged by the revenue before the Hon’ble Jurisdictional High Court. The Hon’ble High Court vide order dated 22/8/2017 in DBIT No. 202 & 204/2017 has considered and decided this issue in para 4.3 and 4.4 as under:
“4.3. The issue No.3 is regarding 14A. Now the issue is governed by the decision of Supreme Court the case of Godrej & Boyce Manufacturing Company Limited vs. Deputy Commissioner of Income Tax, Mumbai & Anr. reported in 394 ITR 449 wherein it has been held as under:-
“36. Section 14A as originally enacted by the Finance Act of 2001 with effect from 1.4.1962 is in the same form and language as currently appearing in Sub-section (1) of Section 14A of the Act. Sections 14A (2) and (3) of the Act were introduced by the Finance Act of 2006 with effect from 1.4.2007. The finding of the Bombay High Court in the impugned order that Subsections (2) and (3) of Section 14A is retrospective has been challenged by the Revenue in another appeal which is presently pending before this Court. The said question, therefore, need not and cannot be gone into. Nevertheless, irrespective of the aforesaid question, what cannot be denied is that the requirement for attracting the provisions of Section 14A(1) of the Act is proof of the fact that the expenditure sought to be disallowed/deducted had actually been incurred in earning the dividend income. Insofar as the Appellant-Assessee is concerned, the issues stand concluded in its favour in respect of the Assessment Years 1998-1999, 1999-2000 and 2001-2002. Earlier to the introduction of Subsections (2) and (3) of Section 14A of the Act, such a determination was required to be made by the Assessing Officer in his best judgment. In all the aforesaid assessment years referred to above it was held that the Revenue had failed to establish any nexus between the expenditure disallowed and the earning of the dividend income in question. In the appeals arising out of the assessments made for some of the assessment years the aforesaid question was specifically looked into from the standpoint of the requirements of the provisions of Subsections (2) and (3) of Section 14A of the Act which had by then been brought into force. It is on such consideration that findings have been recorded that the expenditure in question bore no relation to the earning of the dividend income and hence the Assessee was entitled to the benefit of full exemption claimed on account of dividend income.
We do not see how in the aforesaid fact situation a different view could have been taken for the Assessment Year 2002-2003. Subsections (2) and (3) of Section 14A of the Act read with Rule 8D of the Rules merely prescribe a formula for determination of expenditure incurred in relation to income which does not form part of the total income under the Act in a situation where the Assessing Officer is not satisfied with the claim of the Assessee. Whether such determination is to be made on application of the formula prescribed under Rule 8D or in the best judgment of the Assessing Officer, what the law postulates is the requirement of a satisfaction in the Assessing Officer that having regard to the accounts of the Assessee, as placed before him, it is not possible to generate the requisite satisfaction with regard to the correctness of the claim of the Assessee. It is only thereafter that the provisions of Section 14A(2) and (3) read with Rule 8D of the Rules or a best judgment determination, as earlier prevailing, would become applicable.
In the present case, we do not find any mention of the reasons which had prevailed upon the Assessing Officer, while dealing with the Assessment Year 2002-2003, to hold that the claims of the Assessee that no expenditure was incurred to earn the dividend income cannot be accepted and why the orders of the Tribunal for the earlier Assessment Years were not acceptable to the Assessing Officer, particularly, in the absence of any new fact or change of circumstances. Neither any basis has been disclosed establishing a reasonable nexus between the expenditure disallowed and the dividend income received. That any part of the borrowings of the Assessee had been diverted to earn tax free income despite the availability of surplus or interest free funds available (Rs. 270.51 crores as on 1.4.2001 and Rs. 280.64 crores as on 31.3.2002) remains unproved by any material whatsoever. While it is true that the principle of res judicata would not apply to assessment proceedings under the Act, the need for consistency and certainty and existence of strong and compelling reasons for a departure from a settled position has to be spelt out which conspicuously is absent in the present case. In this regard we may remind ourselves of what has been observed by this Court in Radhasoami Satsang v. Commissioner of Income Tax (1992) 193 ITR (SC) 321 [At Page 329].
We are aware of the fact that strictly speaking res judicata does not apply to income tax proceedings. Again, each assessment year being a unit, what is decided in one year may not apply in the following year but where a fundamental aspect permeating through the different assessment years has been found as a fact one way or the other and parties have allowed that position to be sustained by not challenging the order, it would not be at all appropriate to allow the position to be changed in a subsequent year.”
4.4. In that view of the matter, the issue is required to be answered in favour of the assessee and against the department.”
Accordingly, when the disallowance made by the Assessing Officer in the earlier year has been deleted by this Tribunal and the decision of this Tribunal has been confirmed by the Hon’ble Jurisdictional High Court then in absence of any fresh investment or dividend received by the assessee during the year under consideration, the issue is covered by the decision of this Tribunal as well as the decision of Hon’ble Jurisdictional High Court in assessee’s own case. Hence, we do not find any error or illegality in theorder of the ld. CIT(A) qua this issue and this ground of revenue’s appeal sands dismissed.
9. Grounds No. 3 and 4 of the appeal are regarding the addition made by the Assessing Officer on account of adjustment made in the book profit computed U/s 115JB of the Act in respect of share of the assessee in the income of the joint venture. The Assessing Officer noted that the assessee deducted a sum of Rs. 37,60,20,402/- as share of profit from OMIL & JSC (JV) from the profits of the assessee as per Schedule VI of the I.T. Act. The Assessing Officer was of the view that the said share in the profit of joint venture is not deductible as per the provisions ofSection 115JB of the Act. The Assessing Officer noted that as per explanation to Section 115JB, only income which is exempt as per the provisions of Section 10 of the Act and credited to the P&L account, shallbe reduced while computing the book profit. Though the amendment has been brought to the provisions of Section 115JB under clause (ii) of explanation (1), however, the said amendment is inserted by the Finance Act, 2015 w.e.f. 01/4/2016 and therefore, the same is not applicable for the year under consideration. The Assessing Officer accordingly, made an addition of the said amount of Rs. 19.19 crores.
10. The assessee challenged the action of the Assessing Officer before the ld. CIT(A) and submitted that the amendment brought in the provisions of Section 115JB by inserting Clause (iic) to explanation (1) is remedial in nature and shall have retrospective effect. The assessee relied upon the decision of Mumbai Benches of the Tribunal in the case of M/s Goldgerh Finance Pvt. Ltd. Vs ACIT, 78 taxmann.com 123. The ld. CIT(A) deleted the addition made by the Assessing Officer in the book profit by following the decision of Mumbai Benches of the Tribunal.
11. Before us, the ld CIT-DR has submitted that when the amendment was specifically inserted w.e.f. 1/4/2016 then the same shall not have a retrospective effect or application which is not the intention of the legislature. He has relied upon the order of the Assessing Officer and submitted that the Assessing Officer has relied upon the decision of Hyderabad Benches of the Tribunal. Hence, the ld CIT-DR has contendedthat when the share in the income of the joint venture is not exempt as per the provisions of Section 10 of the Act then as per existing provisions of Section 115JB of the Act, the same amount of income being share in the joint venture cannot be excluded for the purpose of computing of book profit and MAT liability of the assessee.
12. On the other hand, the ld AR of the assessee has submitted as under:-
This is matter relating to tax payable U/s 115JB : that is called Minimum Alternative Tax on Book Profit of the Company. For the purpose of book profit, the Company has to prepare its Profit & Loss A/c as per Schedule VI of the Companies Act, 1956 and if the taxable income is less than 10% of its book profit shall be deemed the total income of assessee and tax payable by the assessee on such income shall be amount of Income Tax @ 18%. In relation to the AY 2014 -15, the Company received share of profit from a joint venture firm/ JV called OMIL-JSC-JV and in the case of thatentity which is separately assessed, the entire amount made taxable @ maximum marginal rate and company got share of profit was received after duly taxed in the said JV that the share of profit which is received by OMIL and affected full tax, was not included in the calculation of book profit of the Company nor made a part of Profit & Loss Account since it was not distributed by the JV.
That from the above amendment in Sec. 115JB it is clarified that the Share of AOP which is subjected to tax U/s 86 at maximum marginal rate, shall be excluded from the total income of the Assessee for MAT U/s 115JB. It gives strength to the view that once the tax has been paid at the maximummarginal rate, then on such income there will be no other tax (i.e. double tax), thus this amendment has clarified the provisions of 115JB. We also draw your kind attention on the object of taxability of income in India U/s 14(1) of Act 22 and U/s 86 of Act, 1961, it is specifically mentioned that for any income wherever it is found, tax is to be collected at the earliest possible stage. But the tax is not levied again on one passage of the money in the form of one sort of income. Thus, when a group of persons is taxed as the income of the group or otherwise, it would be double taxation. A member of family, firm or association is not liable to tax again in respect of share received by him out of the income of the assessable unit to which hebelongs to. That is the provision made by this clause and Sec. 86 are to prevent the state from taxation twice over (CIT Vs. Bhagwati 15 TTR 409. 414; CIT Vs. Guan Manjuri 13 ITR 55, 63; Vedathanni Vs. CIT 1 ITR 70: Kanhaiyalal Vs. CIT 9 ITR 70). As such when any income has already been subject to full rate of tax, then it cannot be taxed twice and, therefore, the share of profit from the JV was received after paying tax at maximum marginal rate, therefore, it was not considered in income even for MAT calculation also. In this case we submit that no income can be taxed twice as referred above and, therefore, there cannot be of any application of Sec. 115JB in the case of share of profits received from the JV firm.
We also submit that as per provisions of Sec. 86, the share of a member of an association of persons or body of individuals in the income of the association, Income tax shall not be payable by the assessee in respect of his share in the income of the association or body computed in the manner provided in Sec. 67A. Sec. 67A, which is reproduced here, states that if the share of the AOP members is determinate then the income is not taxed in the hands of the APO, then it will be taxed in the hands of AOP members on their share in accordance with the heads of income.
He has relied upon the decision of Hon’ble Supreme Court in the case of CIT Vs. Vatika Township P. Ltd. (2014) 367 ITR 466 (SC) as well as the decision of Mumbai benches of the Tribunal in the case of M/s Goldgerg Finance Pvt. Ltd. Vs ACIT (supra).
13. We have heard the rival submissions as well as the relevant material on record. The Assessing Officer has rejected the contention of the assessee that the share of profit from AOP/Joint Venture shall be excluded for the computation of book profit U/s 115JB of the Act. The relevant finding of the Assessing Officer are as under:
I have carefully considered the submission of the assessee and find the same not acceptable in view of the following reasons:
