2021 (5) TMI 501 - AT - Income Tax

Disallowance u/s.14A of the Act r.w.r. 8D(2)(iii) - HELD THAT - As assessee had not made any physical investment in joint ventures and the figures represent in the investment schedule is nothing but the share of profit from joint ventures over all the years and hence, the entire computation mechanism provided in Rule 8D(2) of the Rules fails as the substance of the transaction would prevail over its form. Though the assessee had shown that the accumulated share of profits from joint ventures under the head investment , it is effectively a current account transaction or loans given to the joint ventures by the assessee and the same does not partake the character of actual investments, if any, made by the assessee in the joint venture. Hence, we hold that the entire computation mechanism of Rule 8D(2) of the Rules fails and hence, there could not be any disallowance u/s.14A of the Act that could be made in the facts and circumstances of the instant case. Levy of the dividend distribution tax on the dividend distributed / paid to Italian Thai Development Public Company Limited, Thailand - @15% in terms of Article 10 -Dividends of the Double Taxation Avoidance Agreement (DTAA) between India and Thailand instead of 16.995% levied in terms of section 115-O of the Act - HELD THAT - The assessee pleaded before us that as per Article 10 of the Double Taxation Avoidance Agreement (DTAA) between India and Thailand, the rate of dividend distribution tax to be applied is 15%. Accordingly, the ld. AR pleaded that the excess dividend distribution tax paid by the assessee 1.995% (16.995% 15%) may kindly be directed to be refunded to the assessee. As this aspect is purely a legal issue going to the root of the matter and does not involve verification of any facts, we are inclined to admit this additional ground and take up the same for adjudication in the light of the decision of NTPC Ltd. 1996 (12) TMI 7 - SUPREME COURT We deem it fit to set aside this additional ground to the file of the ld. AO to examine the same in the light of judgment of the Hon ble Supreme Court in the case of M/s. Tata Tea Company Ltd. 2017 (9) TMI 1300 - SUPREME COURT and Godrej and Boyce Manufacturing Company Ltd. 2010 (8) TMI 77 - BOMBAY HIGH COURT - The assessee is at liberty to furnish fresh evidences, if any in support of its contentions. Accordingly, the additional ground raised by the assessee is allowed for statistical purposes.

Summary

Issues Involved:

1. General grounds raised by the assessee.
2. Disallowance under Section 14A of the Income Tax Act read with Rule 8D(2)(iii).
3. Additional ground regarding the rate of Dividend Distribution Tax (DDT) under the Double Taxation Avoidance Agreement (DTAA) between India and Thailand.

Issue-wise Detailed Analysis:

1. General Grounds Raised by the Assessee:
The Ground Nos. 1 and 5 raised by the assessee in both the appeals were general in nature and did not require specific adjudication. These were thus not addressed in detail by the Tribunal.

2. Disallowance under Section 14A read with Rule 8D(2)(iii):
The assessee contested the disallowance made under Section 14A of the Income Tax Act read with Rule 8D(2)(iii) for both assessment years 2014-15 and 2015-16. The Tribunal took the appeal for A.Y. 2014-15 as the lead year for this issue. The assessee argued that no expenses were incurred for earning exempt income from joint ventures, as all related expenses were already debited in the books of the joint ventures. The assessee further contended that the investment figures reflected in the balance sheet were not actual physical investments but represented accumulated shares of profits/losses from joint ventures over the years.

The Tribunal examined the details and found that the figures under 'investments' were indeed shares of profits from joint ventures and not physical investments. Consequently, the Tribunal held that the computation mechanism under Rule 8D(2) failed in this context. Therefore, no disallowance under Section 14A could be made, and the assessee's appeal on this ground was allowed for both years.

3. Additional Ground Regarding the Rate of Dividend Distribution Tax (DDT):
The assessee raised an additional ground for A.Y. 2014-15, arguing that the Dividend Distribution Tax (DDT) should be restricted to 15% as per Article 10 of the DTAA between India and Thailand, instead of 16.995% as levied under Section 115-O of the Income Tax Act. The Tribunal admitted this additional ground, noting that it was a legal issue that did not require verification of facts.

The Tribunal referenced a similar case, Van Oord India Pvt. Ltd. vs. DCIT, where the issue was addressed in the context of the DTAA between India and the Netherlands. In that case, the Tribunal admitted the additional ground based on the Supreme Court's decision in Union of India vs. Tata Tea Company Ltd., which clarified that the tax under Section 115-O is a tax on dividend income.

Following the precedent, the Tribunal set aside the additional ground to the file of the Assessing Officer (AO) for examination in light of the Supreme Court's judgment. The AO was directed to provide the assessee with a reasonable opportunity to present fresh evidence, if any. Consequently, the additional ground was allowed for statistical purposes.

Conclusion:
The appeal for A.Y. 2014-15 was partly allowed for statistical purposes, and the appeal for A.Y. 2015-16 was also partly allowed. The Tribunal's order was pronounced on 21/04/2021 by proper mentioning in the notice board.