2019 (10) TMI 69

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....e impugned order 30.05.2017 (received by it on 23.06.2017) passed by the Commissioner of Income-tax Act (Appeals)-17, Mumbai (the CIT(A)), under section 253 of the Income-tax Act (the Act), on the following amongst other grounds each of which is in the alternative and without prejudice to any others: 1. The CIT(A) erred in upholding disallowance of Rs. 1,82,460 under section 14A of the Act by invoking the provisions of rule 8D(2)(iii) of the Income-tax Rules. 2. The CIT(A) erred in upholding the stand of the AO in granting depreciation of Rs. 3,61,82,551 as against the Appellant's claim of Rs. 3,70,21,132. 3. For the purposes of upholding the reduction in depreciation to be allowed, the CIT(A) erred in holding that the said issue stood covered against the Appellant by judgment of the Hon'ble Bombay High Court in its own case for assessment years 2008-09, 2009-10 and 2010-11 which is factually incorrect because for those years Tribunal has given favourable directions and Revenue has not preferred any appeal against the same before the High Court The Appellant craves leave to add to, alter, amend, delete, vary, substitute and/or rescind any....

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....ainst the assessee , by following preceding year order passed by the tribunal. The relevant extract of the tribunal order dated 31.05.2018 for AY 2012-13 is as under:- " 5. Now we turn to the 2nd ground of appeal. In the profit and loss account, the assessee has credited Rs. 22,74,670/- as dividend income and claimed the same as exempt u/s 10(34) in the computation of income. The assessee has offered Rs. 32,341/- as disallowance u/s 14A in respect of the exempt income. The Assessing Officer (AO) made a disallowance of Rs. 9,02,519/- under Rule 8D(2)(ii) and Rs. 1,92,535 under Rule 8D(2)(iii) of the Income Tax Rules, 1962. The AO thus made a disallowance of Rs. 10,62,713/- after giving credit of Rs. 32,341/- offered by the assessee. 6. In appeal, the Ld. CIT(A) restricted the disallowance to Rs. 1,60,194/- [Rs. 1,92,535/- disallowed by the AO under Rule 8D(2)(iii) minus Rs. 32,341/- offered by the assessee]. 7. We find that the ITAT 'C' Bench, Mumbai in assessee's own case for the AY 2008-09 (ITA No. 4080/Mum/2012) has upheld similar disallowance under Rule 8D(2)(iii). The Tribunal held: "However, coming to the disallowance of other direct or i....

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....wn case for the AY 2008-09 (ITA No. 4080/Mum/2012) has upheld similar disallowance under Rule 8D(2)(iii). The Tribunal held: "However, coming to the disallowance of other direct or indirect expenditure, the assessee has computed the disallowance at Rs. 24,304/- by allocating the salary paid to junior accountant. We do not agree with this computation of disallowance by the assessee. It is an undisputed fact that investment is a policy decision taken by the Board of Directors at the highest level which requires lot of consultancy from various experts. Therefore, the disallowance u/s. 14A r.w. Rule 8D(2)(iii) becomes imperative, as the disallowance have been computed by the AO as per the applicable provisions of law. We do not find any reason to interfere with the disallowance." Facts being identical, we follow the above order of the Co-ordinate Bench and uphold the order of the Ld. CIT(A)" In order to maintain consistency as laid down by Hon'ble Supreme court in the case Radhasoami Satsang v. CIT reported in (1992) 193 ITR 321(SC), we decide the issue against the assessee. For Completeness, we would like to clarify that Hon'ble Supreme Court in the case of Maxopp....

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.... Act. The AO has now taken into account depreciation which would have been allowable u/s 32 but was not claimed by the assessee while computing its written down value of the assets and income for all those years. We have observed that the issue is decided by tribunal against the assessee for immediately preceding year in ITA no. 4121/mum/2016, vide order dated 31st May, 2018 for AY 2012-13, by holding as under:- " This is an appeal filed by the assessee. The relevant assessment year is 2012-13. The appeal is directed against the order of the Commissioner of Income Tax (Appeals)-17, Mumbai *in short 'CIT(A)'+ and arises out of the assessment completed u/s 143(3) of the Income Tax Act 1961, (the 'Act'). 2. The grounds of appeals filed by the assessee read as under: 1. The CIT(A) ought to have held that the Appellant had disclaimed deduction by way of depreciation under section 32(1) of the Act in the earlier years and, therefore, the written down value on which depreciation was to be allowed for the year under consideration should have been higher to that extent. 2. **** 3. The Ld. counsel of the assessee fairly agrees that the 1st ground ....