2013 (9) TMI 604 - AT - Income Tax

Disallowance u/s 14A rws Rule 8D - CIT upheld disallowance - Held that - investments made by the assessee in the subsidiary company are not on account of investment for earning capital gains or dividend income. Such investments have been made by the assessee to promote subsidiary company into the hotel industry. A perusal of the order of the CIT(Appeals) shows that out of total investment of ₹ 64,18,19,775/-, ₹ 63,31,25,715/- is invested in wholly owned subsidiary. This fact supports the case of the assessee that the assessee is not into the business of investment and the investments made by the assessee are on account of business expediency. Any dividend earned by the assessee from investment in subsidiary company is purely incidental. Therefore, the investment made by the assessee in its subsidiary are not to be reckoned for dis-allowance u/s. 14A r.w.r. 8D. The Assessing Officer is directed to re-compute the average value of investment under the provisions of Rule 8D after deleting investments made by the assessee in subsidiary company - Decided in favour of assessee.

Issues Involved:
1. Disallowance under Section 14A read with Rule 8D.
2. Addition of disallowance under Section 14A while computing book profits under Section 115JB.
3. Notional loss on currency swap.
4. MAT credit entitlement under Section 115JAA.
5. Carry forward of unabsorbed loss/depreciation.
6. Tax credit against TDS/TCS certificates.
7. Disallowance under Section 40(a)(i).
8. Addition towards Fringe Benefit Tax (FBT) while computing book profits under Section 115JB.

Detailed Analysis:

1. Disallowance under Section 14A read with Rule 8D:
The assessee contested the disallowance of Rs. 34,20,735/- under Section 14A read with Rule 8D, arguing that the investments were not made for earning dividends but out of business expediency and were not from borrowed funds. The Tribunal found that the investments in the subsidiary were not for earning capital gains or dividends but to promote the subsidiary in the hotel industry. The Tribunal directed the Assessing Officer to re-compute the average value of investments excluding the investments in the subsidiary, partially allowing the assessee's appeal and dismissing the Revenue's appeal.

2. Addition of disallowance under Section 14A while computing book profits under Section 115JB:
Both the assessee and the Revenue contested the inclusion of the disallowed amount under Section 14A in the computation of book profits under Section 115JB. The Tribunal upheld the CIT(Appeals)' decision, finding it well-reasoned and detailed, and dismissed the appeals of both parties on this issue.

3. Notional loss on currency swap:
The CIT(Appeals) remitted the issue of notional loss on currency swap amounting to Rs. 1,74,52,712/- back to the Assessing Officer for verification. The Tribunal confirmed this decision, directing the Assessing Officer to consider all documents provided by the assessee, and dismissed the assessee's appeal on this issue.

4. MAT credit entitlement under Section 115JAA:
The CIT(Appeals) remitted the issue of MAT credit entitlement back to the Assessing Officer for verification. The Tribunal found no error in this decision, noting that the CIT(Appeals) had remitted the issue to verify the assessee's claim and allow it as per law. The assessee's appeal on this issue was dismissed.

5. Carry forward of unabsorbed loss/depreciation:
Similar to the MAT credit entitlement, the CIT(Appeals) remitted the issue of carry forward of unabsorbed loss/depreciation back to the Assessing Officer for verification. The Tribunal upheld this decision, dismissing the assessee's appeal.

6. Tax credit against TDS/TCS certificates:
The CIT(Appeals) also remitted the issue of tax credit against TDS/TCS certificates back to the Assessing Officer for verification. The Tribunal found no error in this decision and dismissed the assessee's appeal.

7. Disallowance under Section 40(a)(i):
The Revenue contested the deletion of disallowance under Section 40(a)(i) on overseas payments amounting to Rs. 12.29 lakhs. The Tribunal upheld the CIT(Appeals)' decision, noting that the payments were for services rendered outside India and did not fall within the ambit of income accrued or arisen in India under Section 9(1). The Revenue's appeal on this issue was dismissed.

8. Addition towards Fringe Benefit Tax (FBT) while computing book profits under Section 115JB:
The Revenue contested the deletion of the addition towards FBT while computing book profits under Section 115JB. The Tribunal upheld the CIT(Appeals)' decision, agreeing with the assessee's reliance on CBDT Circular No. 8/2005 and relevant Tribunal orders. The Revenue's appeal on this issue was dismissed.

Conclusion:
The appeal of the Revenue was dismissed, and the appeal of the assessee was partly allowed.

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