TaxTMI 
TaxTMI 
2021 (1) TMI 1081
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....e? (ii).Whether the Tribunal is right in law in holding that the disallowance u/s.14A should be made even though no expenditure has been incurred relating to the exempt income? (iii).Whether the Tribunal is right in law in holding that the notional interest disallowance made by the Assessing Officer is correct u/s.36(1)(iii) of the Income Tax Act, 1961? and 4.Whether that Tribunal is right in law in holding that upon the interpretation of 80IA the carbon credit is not eligible for deduction?" 3.The assessee, a private limited company, filed its return of income for the assessment under consideration (AY 2011-12) on 30.09.2011, admitting a total income of Rs. 8,16,93,770/- under normal computation and book profit of Rs. 10,26,72,726/- under Section 115JB of the Act. Subsequently, the assessee filed revised return on 29.09.2012, admitting an income of Rs. 7,85,96,160/- under normal computation and book profit of Rs. 10,26,72,726/- under Section 115JB of the Act. The return was processed under Section 143(1) of the Act. Subsequently, the case was selected for scrutiny and notice dated 28.09.2012, was issued under Section 143(2) of the Act. 4.During the scrut....
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....ipt and ought to have been excluded from the taxable income. 10.With regard to the interest disallowance, the assessee contended that their current year profit was Rs. 7,52,37,357/- and free reserves was Rs. 35,81,22,243/- and there was no necessity to divert the cash credit borrowings for making interest free loans to the subsidiary companies. 11.With regard to the disallowance under Section 14A of the Act, the assessee contended that the Assessing Officer mechanically resorted to the disallowance in a routine manner merely because, the assessee had invested in the subsidiary companies. Further, it was contended that the Assessing Officer failed to note that the assessee never incurred any expenditure directly or indirectly during the year, which was relatable to the investments. Further, no dividend or any income was earned during the year from such investment in the subsidiary companies. The CIT(A), by order dated 29.07.2016, dismissed the appeal. 12.With regard to the disallowance of proportionate interest, the CIT(A) relied upon a decision of the Hyderabad Tribunal in the case of M/s.Suryavamshi Holding Ltd., Secunderabad vs. DCIT, Circle 3(2), Hyderabad [I.T.A.No.117....
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....eived has been held to be capital receipt and thus, ought to have been excluded from the taxable income. Challenging the correctness of the order passed by the Tribunal, the assessee is before us. 20.We have elaborately heard Mr.V.S.Jayakumar, learned counsel for the appellant/assessee and Ms.V.Pushpa, learned Senior Standing Counsel for the respondent/Revenue. 21.As noticed above, with regard to the disallowance under Section 36(1)(iii), the Tribunal had remanded the matter to the Assessing Officer for fresh consideration and on such remission, the Assessing Officer has allowed the relief on the ground that the assessee has adequate interest free funds to advance amounts to sister concerns. In the light of the same, the learned counsel for the assessee submits that the assessee does not press for a decision on substantial question of law no.3. 22.The said submission is placed on record and it is held that it is not necessary for the this Court to decide substantial question of law no.3, as relief has already been granted to the assessee. 23.With regard to substantial question of law nos.1 and 2, they are both interlinked, as they pertain to the correctness of disallowa....
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....eld that the receipt should be treated as a capital receipt. In this regard, it would be beneficial to refer to the decision in the case of CIT vs. Subhash Kabini Power Corporation Ltd., [(2016) 385 ITR 0592 (Karn.)]. In the said decision, the Karnataka High Court approved the view taken by the ITAT, Hyderabad Bench, which decision was upheld by the High Court of Andhra Pradesh in the case of CIT vs. My Home Power Ltd. [(2014) 365 ITR 0082 (AP)], which was subsequently followed by the ITAT, Chennai and Jaipur Benches. The operative portion of the judgment reads as follows:- "11. The decision has been upheld by the Hon'ble Andhra Pradesh High Court. This decision has been subsequently followed by the ITAT Chennai and Jaipur Benches. There is no decision either from the Hon'ble Supreme Court or from the Hon'ble jurisdictional High Court. These decisions indicate that sale of carbon credit would result capital receipt which is not taxable. When we confronted the learned DR with regard to this position, it was contended that the position as on the day when the assessment order was passed, is to be seen and on that day these orders were not available. Therefore, the assessee....
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....e CIT is upheld, then, in law, it will affect the computation of income, ultimately because the receipt will not be taxable, it will not come under the ambit of computation of income. Simultaneously it will be excluded from the deduction u/s 80IA as well as of the total income. The result will remain as it is. It is a revenue neutral case. Therefore, in view of the ratio laid down by the Hon'ble jurisdictional High Court in the case of Gopala Gowda (Supra), the second condition for taking action u/s 263 does not exist. The assessment order is not prejudicial to the interests of the Revenue. In view of the above discussion, we allow the appeal of the assessee and quash the impugned order of the learned CIT passed u/s 263 of the Income Tax Act." The aforesaid shows that, so far as the question as to whether, the income by sale of carbon credit could be termed as capital receipt or profit, is concerned, the Tribunal has considered the decision of the Hyderabad Bench and it has further taken note of the fact that decision of the Tribunal of Hyderabad Bench was carried before the Andhra Pradesh High Court and the said decision was not interfered with. The Tribunal, in its decis....
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.... to examine this question on principle but before we do so, we must refer to the decision of this Court in Maheshwari Devi Jute Mills case since that is the decision which weighed heavily with the High Court, in fact, compelled it to negative the claim of the assessee and hold the expenditure to be on capital account. That was a converse case where the question was whether an amount received by the assessee for sale of loom hours was in the nature of capital receipt or revenue receipt. The view taken by this Court was that it was in the nature of capital receipt and hence not taxable. It was contended on behalf of the Revenue, relying on this decision, that just as the amount realised for sale of loom hours was held to be capital receipt, so also the amount paid for purchase of loom hours must be held to be of capital nature. But this argument suffers from a double fallacy. 5. In the first place it is not a universally true proposition that what may be capital receipt in the hands of the payee must necessarily be capital expenditure in relation to the payer. The fact that a certain payment constitutes income or capital receipt in the hands of the recipient is not ....
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....penditure "so long as the benefit is not so transitory as to have no endurance at all". There may be cases where expenditure, even if incurred for obtaining advantage of enduring benefit, may, nonetheless, be on revenue account and the test of enduring benefit may break down. It is not every advantage of enduring nature, acquired by an assessee that brings the case within the principle laid down in this test. What is material to consider is the nature of the advantage in a commercial sense and it is only where the advantage is in the capital field that the expenditure would be disallowable on an application of this test. If the advantage consists merely in facilitating the assessee's trading operations or enabling the management and conduct of the assessee's business to be carried on more efficiently or more profitably while leaving the fixed capital untouched, the expenditure would be on revenue account, even though the advantage may endure for an indefinite future. The test of enduring benefit is therefore not a certain or conclusive test and it cannot be applied blindly and mechanically without regard to the particular facts and circumstances of a given case. But even if this te....
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....e clearly not one of universal application. But even if we were to apply this test, it would not be possible to characterise the amount paid for purchase of loom hours as capital expenditure, because acquisition of additional loom hours does not add at all to the fixed capital of the assessee. The permanent structure of which the income is to be the produce or fruit remains the same; it is not enlarged. We are not sure whether loom hours can be regarded as part of circulating capital like labour, raw material, power etc., but it is clear beyond doubt that they are not part of fixed capital and hence even the application of this test does not compel the conclusion that the payment for purchase of loom hours was in the nature of capital expenditure." After making the aforesaid observation, at paragraph No. 10, the Apex Court, on the basis of the facts of the said case concluded as under: "Similarly, if payment has to be made for securing additional power every week, such payment would also be part of the cost of operating the profit-making structure and hence in the nature of revenue expenditure, even though the effect of acquiring additional power would be to augme....
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....ent case, one may say that no substantial question of law would arise for consideration." 29.The Hon'ble Division Bench of this Court in the case of PCIT vs. Arun Textiles Pvt. Ltd., [T.C.A.No.606 of 2016, dated 29.08.2016], after referring to the decision in My Home Power Ltd., (supra), dismissed the appeal filed by the Revenue and confirmed the order passed by the ITAT holding that sale of carbon credits has to be considered as capital receipt and accordingly, it is not taxable. 30.The argument of Ms.V.Pushpa, learned Senior Standing Counsel is by referring to the substantial questions of law framed by the assessee and it is submitted that if the receipts from sale of carbon credit has to be treated as a capital receipt, then the assessee could not have claimed it as a deduction under Section 80IA of the Act and if the substantial question of law as framed by the assessee is to be answered, it should be answered against the assessee. 31.In our considered view, there is a slightly different approach that needs to be adopted, as this Court exercises power under Section 260A of the Act, while deciding the substantial question of law. The assessee is required to place al....
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....artmental authorities. All questions whether of law or of fact which relate to the assessment of the assessee may be raised before the Tribunal. If' for reasons recorded by the departmental authorities in rejecting a contention raised by the assessee, grant of relief to him on another ground is justified, it would be open to the departmental authorities and the Tribunal, and indeed they would be under a duty to grant that relief. The right of the assessee to relief is not restricted to the plea raised by him." 34.After referring to the above decisions, it was pointed out that the Appellate Tribunal is competent to pass such orders on the appeal, as it thinks fit and it would be the duty of the Tribunal to decide all questions on fact and law before it, even though it was not raised by the departmental authorities. After referring to the powers of the Tribunal and that of this Court and the Hon'ble Supreme Court, it was pointed out that based on the cardinal principle, which has been incorporated as a veritable constitutional provision, that no tax can be levied or collected save under authority of law. 35.It was further pointed out that the task of an Appellate Author....
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...., it was held that the Appellate Authorities perform precisely the same functions, as the assessing authority. The above decision and the findings rendered are a clear answer to the arguments raised before us by the Revenue contending that substantial question of law no.4, as framed has to be decided against the assessee. We, thus, have no hesitation to hold that the Tribunal failed to exercise its power in a proper prospective as a final fact finding authority and examining as to whether there is any adjustment required to be made in the assessee's tax liability qua the various decisions of the Court, which have held that receipt on account of sale of carbon credit is capital in nature. 38.In the instant case, the assessee while preferring appeal before the CIT(A), has specifically raised a contention that the receipts from sale of carbon credit is a capital receipt and cannot be included in the taxable income. Though this ground raised by the assessee before the CIT(A) has been recorded in the order, the CIT(A) did not take a decision on the same. Similar ground was raised by the assessee before the Tribunal, which was not considered by the Tribunal, though the Tribunal....