2016 (11) TMI 534 - AT - Income Tax

Addition u/s 14A r.w.s Rule 8D - investment made by assessee in equity shares and bond - Held that - We find that assessee has made investment in its equity shares and tax free bonds. The assessee in its return of income suo moto has disallowed the expense of ₹ 7,82,695/- under the provision of Sec. 14A r.w.s. Rule 8D of the IT Rules. In this regard, Ld. AR before us submitted that these expenses were disallowed by mistake as all the investments in equity shares are strategic investment. In rejoinder, Ld DR has not brought anything contrary to the advanced argument made by Ld. AR with regard to strategic investment made by the assessee. We also find that various Tribunals have held that there should not be any disallowance u/s. 14A of the Act in relation to investment held by assessee as strategic investment. Therefore, we are inclined to reverse the order of Authorities Below in relation to investment in equity share which is strategic investment made by assessee. with regard to investment made in the interest free bonds of HUDCO assessee has not brought anything on record to justify that such investment was made out of its own fund. At the time of hearing, Ld. AR requested the Bench to restore the matter back to the file of AO to check whether the investment was made out of the borrowed fund or own fund of assessee. To this point, Ld. DR raised no objection if the matter is restored back to the file of AO for fresh adjudication. Considering the facts and circumstances of the case and in the interest of justice and fair play we are inclined to restore the matter back to the file of AO to adjudicate the matter afresh TDS u/s 194C - non deduction of tds on legal and consultancy expense - Held that - AR before us submitted that payees have included in their receipts charges paid by assessee to them under the head legal and consultancy charge and requested to restore the issue back to the file of AO. To this point Ld. DR raised no objection if the matter is restored back to the file of AO for fresh adjudication. With the observation as above, and for the limited purpose set out above, the matter stands restored to the file of AO.

Summary

Issues:
1. Disallowance under section 14A of the IT Act, 1961 read with Rule-8D of the IT Rules 1962.
2. Disallowance under section 40(a)(ia) of the IT Act, 1961.

Issue 1: Disallowance under section 14A of the IT Act, 1961 read with Rule-8D of the IT Rules 1962:
The appellant contested the disallowance of ?8,80,905 made by the Assessing Officer under section 14A r.w.s Rule 8D of the IT Rules, 1962. The appellant argued that no expense was incurred for earning tax-free income, and thus, no disallowance was warranted. However, the CIT(A) upheld the AO's order, stating that the tax auditor had correctly computed the disallowance under Rule 8D, which the appellant had accepted. The ITAT Kolkata, after considering the arguments, found that the investments in equity shares were strategic investments and should not be subject to disallowance under section 14A. The tribunal relied on a similar case and decided to reverse the order of the lower authorities regarding the investment in equity shares. However, regarding the investment in HUDCO bonds, the matter was remanded back to the AO for fresh adjudication to determine if the investment was made out of the appellant's own funds.

Issue 2: Disallowance under section 40(a)(ia) of the IT Act, 1961:
The appellant challenged the disallowance of ?1,02,130 on account of non-deduction of tax under section 40(a)(ia) of the IT Act. The AO disallowed legal and consultancy expenses claimed by the appellant for not deducting TDS under section 194J of the Act. The CIT(A) confirmed the AO's order. The ITAT Kolkata, upon hearing both parties, decided to remand the issue back to the AO for fresh adjudication. The AO was directed to confront any adverse material to the appellant and pass a speaking order after providing a fair opportunity of hearing.

In conclusion, the ITAT Kolkata allowed the appellant's appeal for statistical purposes, remanding both issues back to the AO for fresh adjudication.