2018 (4) TMI 932 - AT - Income Tax

Addition being the difference in receipts as per the Profit and Loss Account and as per AS-26 - Held that - As seen from the case of M/s. A.F. Ferguson & Co. v. JCIT 2015 (1) TMI 306 - ITAT MUMBAI as held that in the absence of any material brought by the Revenue that the assessee has received amount more than the professional fee which has been declared by him in the Profit and Loss Account additions solely based on AIR information are not sustainable. In the case on hand also addition was made solely based on the AIR information without bringing any cogent evidence on record to suggest that the assessee received income from the said parties especially when the assessee is denying any transactions with those parties. In the circumstances, we reverse the order of the Ld.CIT(A) and direct the Assessing Officer to delete the addition made on account of alleged difference in income. Addition u/s 14A - Held that - Proposition that there should not be any disallowance u/s. 14A when the investment was made in subsidiaries as a strategic investment is no more good law in view of the decision of the Hon ble Supreme Court in the case of Maxopp Investment Ltd. v. CIT 2018 (3) TMI 805 - SUPREME COURT OF INDIA . Thus, this argument does not hold and liable to be rejected - this matter has to go back to the Assessing Officer for verification of accounts and for decision, keeping in view the Hon ble Jurisdictional High Court in the case of CIT v. Reliance Utilities and Power Ltd. (2009 (1) TMI 4 - BOMBAY HIGH COURT), HDFC Bank 2014 (8) TMI 119 - BOMBAY HIGH COURT and ACIT v. Vireet Investments Private Limited 2017 (6) TMI 1124 - ITAT DELHI thus, we restore this matter to the file of the Assessing Officer and to decide the issue keeping in view the decisions and after verification of the accounts of the assessee. Addition on account of expenditure in respect of programs and film rights by treating the purchase cost of programs and film rights as intangible assets and allowing deprecation @25% on the same - Held that - This issue has been decided in favour of the assessee by the Coordinate Bench in the assessee s own case for the Assessment Year 2008-09 2015 (8) TMI 612 - ITAT MUMBAI wherein addition/disallowance was deleted by the Tribunal.

Summary

Issues Involved:
1. Addition of ?14,13,908/- due to discrepancy in receipts as per the Profit and Loss Account and AS-26.
2. Disallowance of expenses under Section 14A of the Income Tax Act.
3. Deletion of addition made by the Assessing Officer on account of expenditure in respect of programs and film rights.

Issue-wise Detailed Analysis:

1. Addition of ?14,13,908/- due to discrepancy in receipts as per the Profit and Loss Account and AS-26:
The Assessing Officer (AO) found a discrepancy of ?14,13,908/- between the receipts reported in the assessee's Profit and Loss Account and those reflected in AS-26. The assessee claimed that these transactions did not occur and were not related to them. However, the AO treated this amount as income since the assessee had claimed TDS on these transactions. The Commissioner of Income Tax (Appeals) [CIT(A)] upheld this addition. The assessee argued that they had mistakenly claimed TDS on these amounts and requested its withdrawal. The Tribunal noted that the AO failed to verify the transactions with the concerned parties or issue notices under Section 133(6) despite the assessee’s denial of these transactions. The Tribunal referenced similar cases, emphasizing that additions based solely on AIR information without corroborative evidence are unsustainable. Consequently, the Tribunal reversed the CIT(A)’s order, directing the AO to delete the addition and withdraw the corresponding TDS.

2. Disallowance of expenses under Section 14A of the Income Tax Act:
The AO disallowed expenses under Section 14A, applying Rule 8D, which included ?6,31,221/- as interest and ?7,20,899/- as administrative expenses. The assessee contended that the investments in question were made from internal accruals and not borrowed funds, citing previous assessments where similar disallowances were deleted. The Tribunal noted that the issue had been previously decided in the assessee's favor for earlier assessment years, referencing the decision of the Hon’ble Jurisdictional High Court in CIT v. Reliance Utilities and Power Ltd., which presumes that investments are made from own funds if both own and borrowed funds are available. The Tribunal remanded the matter back to the AO for verification, directing that no disallowance should be made if sufficient own funds are available and to recompute disallowance under Rule 8D2(iii) as per the Special Bench decision in ACIT v. Vireet Investments Private Limited.

3. Deletion of addition made by the Assessing Officer on account of expenditure in respect of programs and film rights:
The AO treated the purchase cost of programs and film rights as intangible assets, allowing depreciation at 25%. The CIT(A) deleted this addition, which was upheld by the Tribunal. The Tribunal referenced its earlier decision in the assessee's case for the Assessment Year 2008-09, where it was held that news items do not have enduring value and should be expensed, and TV programs and film rights, treated as inventory, should be amortized over their useful life. The Tribunal emphasized that the AO’s invocation of Section 32(ii) was without sustainable reasoning and that the assessee’s consistent method of accounting was previously accepted by the Revenue. The Tribunal rejected the Revenue’s argument regarding the applicability of AS-26 to TV programs and film rights, affirming the CIT(A)’s order.

Conclusion:
The Tribunal allowed the assessee’s appeal regarding the addition of ?14,13,908/- and directed the AO to withdraw the corresponding TDS. The disallowance under Section 14A was remanded back to the AO for reconsideration based on the availability of own funds. The deletion of the addition related to programs and film rights was upheld, following the consistent method of accounting and previous Tribunal decisions. Both appeals were partly allowed as indicated.