TaxTMI 
TaxTMI 
2021 (5) TMI 501
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....5 raised by the assessee in both the appeals are general in nature and does not require any specific adjudication. 3. The Ground No.4 raised by the assessee for both the years was stated to be not pressed by the ld. AR at the time of hearing before us for which necessary endorsement was made by him in our files. Accordingly, the Ground No.4 is dismissed as not pressed for both the years. 4. The Ground Nos. 2 and 3 raised by the assessee are with regard to disallowance made u/s.14A of the Act r.w.r. 8D(2)(iii) of the Rules for both the years. In this regard the appeal for the A.Y.2014-15 has taken as the lead year as far as this ground is concerned and the decision rendered thereon would apply with equal force for A.Y.2015-16 also in view of identical facts except with variance in figures. 4.1. We have heard rival submissions and perused the materials available on record. We find that assessee is engaged in the business of cement, mining, marine and specialist engineering and construction activities. The assessee undertakes constructions of dams, bridges, ports, airports, highway constructions, billing works etc., These contracts also include Government contracts through te....
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....7.45 FY 2013-14 484.92 Total 4023.58 Inverstment in ITD Cem Ind JV-Date of Formation - 11.10.2008 Profits during the following years- INR (in lakhs) FY 2008-09 119.58 FY 2009-10 656.85 FY 2010-11 578.56 FY 2011-12 403.87 FY 2012-13 12.31 FY 2013-14 (1,111.83) Total 658.34 Inverstment in MAYTAS CONSORTIUM JV-Date of Formation - 09.09.2008 Profits during the following years- INR (in lakhs) FY 2012-13 11.51 FY 2013-14 269.02 Total 280.53 4.3. From the above table, it could be seen that assessee had not made any physical investment in joint ventures and the figures represent in the investment schedule is nothing but the share of profit from joint ventures over all the years and hence, the entire computation mechanism provided in Rule 8D(2) of the Rules fails as the substance of the transaction would prevail over its form. Though the assessee had shown that the accumulated share of profits from joint ventures under the head 'investment', it is effectively a current account transaction or loans given to the joint ventures by the assessee and the same does not partake the chara....
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....d in that case also before the Tribunal. We find that this Tribunal had indeed admitted the said additional ground by understanding the justification given by the assessee that the additional ground was raised in the light of decision of the Hon'ble Supreme Court in the case of Union of India vs. Tata Tea Company Ltd., reported in 85 Taxmann.com 346 on 20/09/2017 wherein it was decided that the tax u/s.115 O of the Act is a tax on dividend. The operative portion of the said decision of the Co-ordinate Bench of this Tribunal in IT(TP)A No.720/Mum/2012 dated 11/11/2019 is reproduced hereunder:- "27. Now, turning to the additional ground, for admission thereof, it has been contended by the ld. Counsel for the assessee that the additional ground could not be raised either at the time of filing of the return of income on 15th October, 2010, or during proceedings before the lower authorities (which culminated in passing of the Final Assessment order on 29th December, 2014), because during that period, the law that tax under section 115-O was a tax on the distributed profits of the company and not on dividend, as laid down by the Hon'ble Bombay High Court in the case of 'Godr....
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....arding the existence or non- existence of the PE is not on record, the additional ground is not maintainable; and that the procedure for making a claim, as provided in Article 10(3) of Indo-Netherland Treaty, is also not on record herein. 29. Insofar as regards the argument of the ld. DR that since the additional ground raised does not arise from the orders of the lower authorities, the same cannot be admitted, this argument deserves to be rejected in view of the decisions of the Hon'ble Supreme Court in the cases of 'National Thermal Power Co. Ltd. v. CIT', 229 ITR 383 (SC) and 'Jute Corporation of India Ltd. Vs. CIT', 187 ITR 688 (SC), and the Full Bench decision of the Hon'ble Bombay High Court in the case of 'Ahmedabad Electricity Co. Ltd. Vs. CIT', 199 ITR 351 (Bom.). In fact, as rightly submitted on behalf of the assessee, this is the settled position of law, as has been held by the Hon'ble Bombay High Court in the case of 'Ultratech Cement Ltd. Vs. ACIT', 81 taxmann.com 74. It remains undisputed that this issue could not be raised either at the time of filing of the return of income on 15 th October, 2010, or during proceedings before the lower authoriti....
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....f the claim made by the assessee, and are not necessary to decide the admissibility of the same. Further, proving the compliance of the provisions of Article 10(6) of the Treaty, by which Article, the claim of the assessee under Article 10(2) can be denied by the Revenue, is not necessary to decide the admissibility of the additional ground raised by the assessee. 31. With respect to the submission of the ld. DR that the procedure for making a claim, as prescribed in Article 10(3) of the DTAA, is not on record and hence, it requires factual investigation, we are of the view that the same does not, in any manner, relate to the assessee, or VODMC BV, or the project office, and hence, it cannot be regarded as a fact that needs to be examined for the purposes of admission and/or adjudication of the assessee's claim. In any case, as dwelt upon hereinabove, the assessee was prevented from raising the additional ground before the lower authorities, due to a reason beyond the control of the assessee, as considered above. This fact, by itself, is, in our opinion, sufficient to allow it to be raised at this stage. So, even if, arguendo, the objections of the Department were to b....