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TMI Blog2019 (6) TMI 1294X X X X Extracts X X X X X X X X Extracts X X X X ..... 22.04.2004 i.e. after 31.03.2004 and hence the conditions prescribed for claiming deduction were not fulfilled by the assessee? ii. "Whether the Ld. CIT(A) was correct in law and on facts in holding that there is no condition precedent to obtain the factory license before starting industrial undertaking, without appreciating the fact that legally, production cannot commence without obtaining the license to run the factory from the Factory Inspector as per the Factory Act and Rules?" iii. "Whether the Ld. CIT(A) was correct in law and on facts in restricting the disallowance of Rs. 3,60,867/- made u/s. 14A r.w. Rule 8D to 10% of exempt income i.e. Rs. 67,950/-, holding that Rule 8D was not applicable for AY.2006-07, without appreciating that, the amendment introducing the section 14A(2) is clarificatory, and hence considered as retrospective and accordingly applicable even prior to assessment year 2008-09 and accordingly application of Rule 8D while making disallowance u/s. 14A is applicable for A.Y. 2006-07 ?" iv. "Whether of the facts and in the circumstances of the case and in law, the Ld. CIT(A) was right in restricting the disallowance made under u/s. 14A r.w.r. Rule 8D b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee, therefore, the finding of the CIT(A) is not justifiable, hence, is liable to be set aside. However, on the other hand, the Ld. Representative of the assessee has strongly relied upon the order passed by the CIT(A) in question. Before going further, we deem it necessary to advert the finding of the CIT(A) on record.:- "6 Ground No.1 to 8 relate to disallowance of deduction u/s 80-IB in respect of Unit-II amounting to Rs. 1,20,20,832/-. This issue has been taken by the appellant in AY 2005-06 in Grounds No. 2 to 7 in Appeal No. CIT(A)-3/ACIT1(3)(2)/IT-29/2016-17. This issue was discussed elaborately and the deduction is allowed in respect of Unit-II. In view of the same, Ground no. 1 to 8 are allowed." 6. On appraisal of the above mentioned finding, we noticed that the claim of the assessee has been allowed on the basis of the decision of CIT(A)-3, Mumbai for the A.Y. 2005-06. In fact, the claim of the exemption of the assessee u/s 80IB has been accepted in A.Y. 2004-05, therefore, in the said circumstances, the exemption is not liable to be declined in subsequent year and in this regard we also find support in law settled in CIT Vs. Wester Outdoor Interactive (P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... connection with the A.Y. 2006-07. The assessee earned the exempt income in sum of Rs. 3,93,753/-. The CIT(A) has restricted the expenditure to earn the exempt income to the extent of 10% dividend income which nowhere seems unjustifiable. Earlier to the period 2008-09 it was justifiable to earn the exempt income on reasonable basis unless satisfaction has been recorded by AO in the order. We also find support of law settled in case titled as CIT Vs. Essar Technology Ltd. 90 Taxmann.com 2(SC) &Godrej & Boyce 328 ITR 81 (Bom). Taking into account of all the facts and circumstances, we are of the view that the CIT(A) has decided the matter of controversy judiciously and correctly which is not liable to be interfere with at this appellate stage. Accordingly, these issues are decided in favour of the assessee against the revenue. In the result, appeal filed by the revenue is hereby dismissed. ITA. NO.1954/M/2017 9. The Revenue has filed the present appeals against the order dated 26.12.2016 passed by the Commissioner of Income Tax (Appeals)-3, Mumbai [hereinafter referred to as the "CIT(A)"] relevant to the A.Y. 2007-08. 10. The Revenue has raised the following grounds: - 1. Wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the case and in law, the Ld. CIT(A) was right in restricting the disallowance made under u/s. 14A r.w. Rule 8D by holding that investment is made by the assessee in shares and securities out of own funds, by relying on the decision of Hon'ble High Court in the case of Reliance Utilities & Power Ltd. (313 ITR 340) and thereby rejecting the application of Rule 8D?" 7. Whether on the facts and in the circumstances of the case and in Law, the Ld. CIT(A) was right in deciding the computation of disallowance made under Rule 8D to apply the ratio of decision given in different context and set of facts in Reliance Utilities & Power Ltd. (313 ITR 340) which has the impact of making the statutory rule redundant and entering into the legislative realm of re-drafting the mandatory rule made by Parliament?" 11. The facts of the present case are quite identical to the facts of the case as narrated above while deciding the case in ITA. No. 1953/M/2017, therefore, there is no need to repeat the same. However, the figure is different. ISSUE NOs.1 & 2 12. Under these issues the revenue has challenged the allowance of claim of the assessee u/s 80IB(4). These issues have already been discuss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the restriction of claim of the assessee to the extent of 10% of the exempt income in view of the provisions u/s14A r.w. Rule 8D of the Act. This issue has already been discussed and decided while deciding the appeal of revenue bearing ITA. No.1953/M/2017 for the A.Y.2006-07. The finding given in the said appeal on the issues is quite applicable to the facts of the present case also as mutatis mutandis. Accordingly, we are of the view that the finding of the CIT(A) is quite justifiable which is not liable to be interfere with at this appellate stage. ITA. NO.1955/M/2017 16. The Revenue has filed the present appeals against the order dated 26.12.2016 passed by the Commissioner of Income Tax (Appeals)-3, Mumbai [hereinafter referred to as the "CIT(A)"] relevant to the A.Y. 2008-09. 17. The Revenue has raised the following grounds: - 1. "Whether the Ld. CIT(A) was correct in law and on facts of the case in deleting the addition of Rs. 163,27,932/- made by Assessing Officer by disallowing the claim of deduction u/s. 8018(4) in respect of Unit - Il as the assessee had obtained factory licence on 22.04.2004 i.e. after 31.03.2004 and hence the conditions prescribed for claiming dedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 13,67,505/-. Since the investment is made out of its own funds available with the appellant, no disallowance u/s 14A r.w. Rule 8D(2)(ii) of the I.T. Act, 1962 is to be made. As regards, the disallowance u/r 8D(2)(iii) of the I.T. Rules, 1962 is concerned, the appellant has not pointed out any mistake in the computation, hence, the addition made is confirmed. Therefore, Ground no. 6 is partly allowed." 21. On appraisal of the above said mentioned finding, we noticed that the CIT(A) has allowed the claim of the assessee on the basis of this fact that the assessee's own fund is more than the investment. The CIT(A) has also placed reliance upon the decision in the case of CIT Vs. Reliance Utilities Power Ltd. (2009) 178 Taxmann 135 (Bom). The facts are not distinguishable at this stage. The presumption lies in favour of the assessee if the assessee have own fund more than investment than the assessee's investment would be treated from his own fund to earn the exempt income. The CIT(A) has also relied upon the decision in the case of Reliance Industries (supra), therefore, we are of the view that the finding of the CIT(A) is quite correct which is not liable to be interfere with at ..... X X X X Extracts X X X X X X X X Extracts X X X X
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