TaxTMI 
TaxTMI 
2017 (6) TMI 1371
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....before the Tribunal are as under : "On facts and in law, 1] The learned CIT(A) erred in confirming the disallowance of 14A amounting to Rs.2,66,79,558/- made by the learned A.O. without appreciating that the disallowance made by the learned A.O. was not justified at all. 1.1] The learned CIT(A) erred in holding that the share application money amounting to Rs.24,73,97,031/- paid by the appellant company was to be considered as part of tax free investments for determining the disallowance u/s. 14A r.w.r. 8D. 1.2] Without prejudice, the appellant company submits that if at all, the share application money paid by the appellant company is to be considered as part of the tax free investments, in that case, only the amount in respect of which shares are finally allotted to the appellant company should be considered and those amounts which are ultimately refunded back to the appellant company should not be considered as part of tax free investments. 1.3] Without prejudice, the appellant company further submits that the share application money which is paid out of interest bearing funds should only be considered for the purposes of making the d....
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....013 (supra). 4. On the other hand Shri Mukesh Jha representing the Department vehemently supported the findings of Commissioner of Income Tax (Appeals) in confirming the additions u/s. 14A r.w.r. 8D of the Act. The ld. DR to strengthen his submissions placed reliance on the decision of Hon'ble Karnataka High Court in the case of Pradeep Kar Vs. Assistant Commissioner of Income Tax reported as 319 ITR 416. The ld. DR to further fortify his submissions also draws support from CBDT Circular No. 5 dated 11-02-2014. The ld. DR submitted that the Circular clarifies that Rule 8D read with section 14A of the Act provides for disallowance of the expenditure even where taxpayer in a particular year has not earned any exempt income. 5. We have heard the submissions made by the representatives of rival sides and have perused the orders of the authorities below. The solitary issue raised in the appeal is with regard to additional disallowance made by the Assessing Officer u/s. 14A r.w.r. 8D. Undisputedly, the assessee has suo moto made disallowance of Rs.4,33,75,431/- under the provisions of section 14A r.w.r. 8D. The Assessing Officer made further disallowance under Rule 8D r.w.s. 14A in....
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.... asset class) yielding tax-free income, and neither is it capable of yielding any tax-free income. The same would, therefore, in our clear view, have to be excluded in working out the disallowance u/r. 8D. Further, though the Revenue has not disputed the sums reflected as 'share application money' in the assessee's balance-sheet, the AO, to whom the matter is to be in any case restored for working out the disallowance by excluding the same, shall, in the set aside proceedings, also examine the veracity of the assessee's claim with regard to the same being 'share application money'. This is in view of the pertinent questions raised by the Bench in its respect, to which no satisfactory answer was forthcoming during hearing, nor - to be fair to the ld. AR, could possibly be in the absence of any details on record. We state so as the 'share application money' would ordinarily only be 'public money' and, thus, except perhaps where toward shares of private limited companies, subject to stringent procedure, as is generally in place for such funds. We may further clarify that the exclusion of 'share application money', as opined by us, is not....
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....w that while working out the average value of the investments u/r 8D(2)(iii) of the Rules the share application money should not be included. We hold accordingly and dismiss ground no.(i) raised by the revenue." 32. Respectfully following the decisions of Coordinate Benches of the Tribunal cited (supra) we hold that share application money pending allotment should be excluded from the investments for the purpose of computing disallowance u/s.14A." 7. In additional ground of appeal the assessee has assailed disallowance made by the Assessing Officer u/s. 14A r.w.r. 8D in respect of investments made in group concerns on which no dividend income is received by the assessee. This issue has also been dealt with by the Co-ordinate Bench of the Tribunal in assessee's own case in assessment year 2009-10. The Tribunal decided the issue in favour of the assessee by holding as under : "26. We find merit in the above arguments of the Ld. Counsel for the assessee. It is an admitted fact that no dividend has been received by the assessee from the shares invested in the group companies which has been considered by the Assessing Officer for the purpose of computing disallowanc....
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....required to be answered in favour of the assessee and against the revenue. 23. In the context of the facts enumerated hereinbefore the court answers the question framed by holding that the expression "does not form part of the total income‟ in section 14 A of the envisages that there should be an actual receipt of income, which is not includible in the total income, during the relevant previous year for the purpose of disallowing any expenditure incurred in relation to the said income. In other words, section 14A will not apply if no exempt income is received or receivable during the relevant previous year." 29. Since in the instant case the assessee has not received any dividend on the investment made in shares of group companies, therefore, the investment made in the group companies should be excluded from the investments for the purpose of computing disallowance u/s.14A r.w. Rule 8D." 8. The ld. DR has not been able to show any material difference in the facts and circumstances in the assessment year under appeal vis-à-vis assessment year 2009-10, wherein these issues have been considered and adjudicated by the Co-ordinate Bench of the Tribunal ....