2015 (9) TMI 1437 - AT - Income Tax

Tax Tribunal partially allows appeals, remands issues for re-adjudication under Income Tax Act

Dy. Commissioner of Income Tax Circle-1 (1), Panaji Versus M/s. Sesa Goa Ltd. and M/s. Sesa Sterlite Ltd. (formerly known as M/s. Sesa Goa Ltd.) Versus Addl. Commissioner of Income Tax, Range-1, Panaji

The Tribunal partly allowed both the Revenue's and the Assessee's appeals for statistical purposes. Various issues including disallowances under different ... Disallowance u/s 14A - Held that:- As it is noticed that the calculation made by the AO shows that the AO has considered all the investments which is not permissible whereas the Assessee has not provided a proper computation of the disallowance u/s 14A and the ld. CIT(A) has also not considered the calculation provided under Rule 8D, the issue of disallowance u/s 14A is restored to the file of the AO for re-adjudication in line with the decision of the co-ordinate bench of this Tribunal in the case of M/s. Sesa Resources Ltd.[2015 (8) TMI 1287 - ITAT PANAJI] Disallowance of payment of commission to foreign agents - TDS u/s 195 - disallowance u/s 40(a)(ia) or 37 - Held that:- A perusal of the order of the ld. CIT(A) shows that the AO ha not considered the provisions of Sec. 195 or Sec. 40(a)(ia) of the Act for the purpose of disallowing the commission paid to non-residents. The ld. CIT(A) has decided the issue of the commission payment to non-resident in respect of the provisions of Sec. 37, but has not decided the issue in respect of disallowance by invoking the provisions of Sec. 40(a)(ia) of the Act on account of non-deduction of TDS. A perusal of the order of the ld. CIT(A) shows that for the A.Y 2006-07 the AO has held that there was no necessity for engaging commission agents and accordingly, the commission payment was not held to be allowable as business expenditure u/s 37 of the Act. It is noticed that the ld. CIT(A) has deleted this disallowance following the decision of the co-ordinate bench of this Tribunal in the Assessee’s own case wherein the co-ordinate bench of this Tribunal [2013 (9) TMI 233 - ITAT PANAJI ] has accepted that commission is allowable u/s 37 itself. Disallowance made u/s 40(a)(ia) r.w.s. 195(1) towards payment of demurrage paid to non-resident buyers of iron ore - Held that:- The issue was now squarely covered by the decision of the co-ordinate bench of this Tribunal in the Assessee’s own case [2013 (9) TMI 233 - ITAT PANAJI ] wherein held non-resident buyer got compensation towards demurrage incurred through operation which are confined to purchase of goods, i.e. in relation to ship which it had arrange for taking delivery of goods from assessee/seller from India - Income cannot be deemed to accrue or arise in India in hands of foreign buyer and therefore it cannot be taxable in India and not liable to tax deduction at source - No disallowance can be made u/s 40(a)(ia) – Decided in favor of Assessee. Disallowance of additional depreciation in respect of the iron ore extraction - Held that:- The issue was now squarely covered by the decision of the co-ordinate bench of this Tribunal in the Assessee’s own case [2013 (9) TMI 233 - ITAT PANAJI ] wherein held Assessee must be engaged in business of manufacture or production of any article or thing and new plant and machinery must be acquired and installed - Assessee has extracted iron ore and also processed it - Case of assessee duly covered by decision of Hon'ble Supreme Court in assessee's own case reported in [2004 (11) TMI 14 - SUPREME Court] – Allowed additional depreciation – Decided in favor of Assessee. Deduction u/s 10B - Held that:- As it has been admitted that the appeal for the A.Y 2009-10 is under adjudication before the ld. CIT(A) and that fresh evidences have been found in the course of the survey conducted after the order of the Tribunal which has been followed by the ld. CIT(A), we are of the view that this issue in relation to the claim of deduction u/s 10B is liable to be restored to the file of the ld. CIT(A) for re-adjudication after granting the Assessee adequate opportunity of being heard, and we do so Disallowance of interest as non-business expenditure - Held that:- As noticed that the issue of deduction u/s 14A has been restored to the file of the AO for re-computation and it is in this computation that the ld. CIT(A) has disallowed the amount of ₹ 6 crores towards non-business expenditure. Consequently, we are of the view that the issue of disallowance of interest as non-business expenditure is liable to be restored to the file of the ld. CIT(A) for re-adjudication after granting the Assessee necessary enhancement notice and granting the Assessee adequate opportunity to substantiate its case Issues Involved:1. Disallowance under Section 14A of the Income Tax Act.2. Disallowance under Section 40(a)(ia) for payment of commission to foreign agents without TDS.3. Disallowance under Section 40(a)(ia) for payment of demurrages without TDS.4. Disallowance of additional depreciation for iron ore extraction and processing.5. Deduction under Section 10B for EOUs.6. Valuation of ore for transfer pricing under Section 80A(6).7. Enhancement of interest expenditure disallowance.Detailed Analysis:1. Disallowance under Section 14A of the Income Tax Act:The Revenue challenged the deletion of disallowance under Section 14A by the CIT(A). The Assessee argued that no direct expenditure was attributable to exempt income, and relied on a previous Tribunal decision in their favor for the preceding year. The Tribunal noted that neither the Assessee nor the AO provided a proper computation of disallowance under Rule 8D, and the CIT(A) had not considered the calculations correctly. The Tribunal restored the issue to the AO for re-adjudication in line with the decision in REI Agro Ltd.2. Disallowance under Section 40(a)(ia) for payment of commission to foreign agents without TDS:The Revenue contended that the CIT(A) erred in deleting the disallowance for non-deduction of TDS on commission payments to foreign agents. The CIT(A) had relied on the Tribunal's decision in the Assessee's own case for the previous year. However, the Tribunal noted that the CIT(A) had not considered Explanation 2 to Section 195, introduced with retrospective effect. The Tribunal restored the disallowance made by the AO under Section 40(a)(ia) for non-deduction of TDS.3. Disallowance under Section 40(a)(ia) for payment of demurrages without TDS:The Revenue's appeal on this issue was dismissed as both parties agreed that the matter was covered by the Tribunal's decision in the Assessee's favor for the previous year.4. Disallowance of additional depreciation for iron ore extraction and processing:The Revenue's appeal on this issue was also dismissed, as it was covered by the Tribunal's decision in the Assessee's favor for the previous year, following the Supreme Court's decision in the Assessee's own case.5. Deduction under Section 10B for EOUs:The Revenue argued that the CIT(A) did not consider new evidence provided by the AO. The Tribunal restored the issue to the CIT(A) for re-adjudication, noting that the appeal for the previous year was pending and the new evidence should be considered.6. Valuation of ore for transfer pricing under Section 80A(6):The Tribunal restored this issue to the CIT(A) for re-adjudication, as it was connected to the deduction under Section 10B and required consideration of new evidence.7. Enhancement of interest expenditure disallowance:The Assessee contended that the CIT(A) disallowed Rs. 6 crores of interest expenditure without issuing an enhancement notice. The Tribunal restored this issue to the CIT(A) for re-adjudication after issuing the necessary enhancement notice.Conclusion:Both the Revenue's and the Assessee's appeals were partly allowed for statistical purposes, with several issues restored to the AO and CIT(A) for re-adjudication. The Tribunal emphasized the need for proper computation and consideration of new evidence in the re-adjudication process.