2023 (5) TMI 577 - AT - Income Tax

Disallowance of depreciation - assessee company has made investment in windmill - HELD THAT - Tribunal has decided the identical issue in assessee s own case in AY 2011-12 2023 (5) TMI 507 - ITAT DELHI confirm the order of ld. CIT (A) regarding deletion of disallowance of depreciation on investment made on wind mills. Short deduction of TDS - payment for the services provided in the nature of technical and professional services liable for deduction u/s 194J @ 10% OR payment for work as per contract within the section 194C @ 2% - CIT (A) held that AO was not justified and the section does not cover short deduction, thus deleted the addition - HELD THAT - CIT (A) has taken correct decision which is supported by the case laws - Hence, this deletion of disallowance by the ld. CIT (A) is held to be correct. Disallowance u/s 14A - AO noted that assessee had computed some disallowance by some internal method of its own - HELD THAT - We accept the proposition that assessee s own fund are more than the investment made, hence no disallowance should be made for interest. This aspect may be verified by the AO. Another plea of the assessee is that only dividend yielding investments should be considered for computing amount of disallowance under Rule 8D (iii). We agree with this proposition also as it has the mandate of ACB INDIA LIMITED (FORMERLY M/S ARYAN COAL BENEFICATIONS (P) LTD. 2015 (4) TMI 224 - DELHI HIGH COURT and case of Vireet Investment (P) Ltd. 2017 (6) TMI 1124 - ITAT DELHI . Addition of foreign exchange loss - HELD THAT - As we agree with the submissions of assessee that the decision of Woodward Governor India (P) Ltd. 2009 (4) TMI 4 - SUPREME COURT is applicable. Facts highlighted by the ld. Counsel of the assessee also show that Woodward Governor India (P) Ltd. (supra) extensively discussed the judgment of Indian Molasses Co. P. Ltd. 1959 (5) TMI 5 - SUPREME COURT and duly distinguished the same. Another factor in favour of the assessee is that during AYs 2017-18 2018-19, assessee earned income on reinstatement of ECB and the same was duly offered to tax and the same was accepted by the assessing officer during the assessment proceedings. So, when the Revenue is accepting the gains, the same treatment should be given to the loss and we are convinced by the submissions of the ld. Counsel for the assessee. Hence, we set aside the orders of the authorities below and delete the addition.

Summary

Issues Involved:
1. Disallowance of depreciation on investment in windmills.
2. Addition on account of short deduction of TDS.
3. Disallowance under Section 14A of the Income-tax Act.
4. Addition on account of foreign exchange loss.

Summary:

1. Disallowance of Depreciation on Investment in Windmills:
The Tribunal upheld the CIT(A)'s decision to delete the disallowance of depreciation on investment made in windmills. The Tribunal referenced its own previous decision in the assessee's case for AY 2011-12, where it was established that the activity of power generation was part of the assessee's business activity as per the Memorandum of Association. The Tribunal emphasized the principle of consistency, noting that there were no new facts to justify a different treatment.

2. Addition on Account of Short Deduction of TDS:
The CIT(A) deleted the addition made by the AO on the grounds of short deduction of TDS. The AO had argued that the payment for services provided by Suzlon Energy Ltd. should have been subjected to TDS at 10% under Section 194J instead of 2% under Section 194C. The CIT(A) held that the section does not cover short deduction, only non-deduction or non-payment of TDS. The Tribunal affirmed this decision, supported by case laws indicating that short deduction does not attract disallowance under Section 40(a)(i).

3. Disallowance under Section 14A of the Income-tax Act:
The AO applied Rule 8D to compute disallowance under Section 14A, which the CIT(A) found excessive as it exceeded the exempt income. The CIT(A) limited the disallowance to the amount of exempt income, referencing the Delhi High Court decision in Joint Investment (P) Ltd. The Tribunal upheld this decision, agreeing that disallowance should not exceed exempt income. The Tribunal also accepted the assessee's argument that only dividend-yielding investments should be considered for disallowance under Rule 8D(iii), and that the assessee's own funds were sufficient for making investments, thus no interest disallowance should be made.

4. Addition on Account of Foreign Exchange Loss:
The AO disallowed the foreign exchange loss on ECB liability, which was upheld by the CIT(A), referencing the Indian Molasses Co. Pvt. Ltd. case. However, the Tribunal sided with the assessee, citing the Supreme Court's decision in Woodward Governor India (P) Ltd., which allows such losses as revenue expenditure under Section 37(1). The Tribunal noted that the Revenue had accepted gains from similar transactions in subsequent years, thus the same treatment should apply to losses. Consequently, the Tribunal deleted the addition.

Conclusion:
The Tribunal dismissed the Revenue's appeal and allowed the assessee's appeal, thereby affirming the CIT(A)'s decisions on the issues of depreciation on windmills, TDS short deduction, and Section 14A disallowance, while overturning the CIT(A)'s decision on foreign exchange loss.