MUMBAI SEZ LTD, MUMBAI v. DCIT CEN CIR 39, MUMBAI

ITA 4852/MUM/2014 | 2008-2009
Pronouncement Date: 01-03-2021 | Result: Partly Allowed

Appeal Details

RSA Number 485219914 RSA 2014
Assessee PAN AABCG2739C
Bench Mumbai
Appeal Number ITA 4852/MUM/2014
Duration Of Justice 6 year(s) 7 month(s) 7 day(s)
Appellant MUMBAI SEZ LTD, MUMBAI
Respondent DCIT CEN CIR 39, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 01-03-2021
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted B
Tribunal Order Date 01-03-2021
Assessment Year 2008-2009
Appeal Filed On 22-07-2014
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH MUMBAI BEFORE SHRI M. BALAGANESH AM AND SHRI AMARJIT SINGH JM / I .T.A. NO. 4852 /MUM/201 4 ( / ASSESSMENT YEAR: 2008 - 09 ) & / I .T.A. NO. 4853 /MUM/20 1 4 ( / ASSESSMENT YEAR: 2009 - 10 ) MUMBAI SEZ LIMITED 1 ST FLOOR JAI CENTRE 34 P. D. MELLO ROAD OPP. RED GATE MASJID MUMBAI - 400009 . / VS. DCIT CENTRAL CIRCLE - 39 AAYAKAR BHAVAN GROUND FLOOR MUMBAI - 400020. ./ ./ PAN/GIR NO. : AABCG2739C ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING : 03 / 1 2 / 20 20 / DATE OF PRONOUNCEMENT : 01 /03 / 202 1 / O R D E R PER AMARJIT SINGH J M: THE ASSESSEE HAS FILED THE ABOVE MENTIONED APPEAL S AGAINST THE DIFFERENT ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 41 MUMBAI [HEREINAFTE R REFERRE D TO AS THE CIT(A)] RELEVANT TO THE A.Y S . 2008 - 09 & 20 09 - 10 . ITA. NO.4852 /M/201 4 2. THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 31 .0 1 .201 4 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 41 ASSESSEE BY : SHRI MADHUR AGGARWAL REVENUE BY: SHRI RAHUL RAMAN (DR) ITA. NO S.4852 & 4853 / M/201 4 A.Y. 20 08 - 09 & 2009 - 10 2 MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y. 2008 - 09. 3 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - ' 1. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 41 ERRED IN CONFIRMING THE VIEW OF THE LD. ASSESSING OFFICER THAT THE BUSINESS OF APPELLANT HAD NOT YET STARTED DURING THE PREVIOUS YEAR UNDER CONSIDERATION. 2. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 41 ERRED IN UPHOLDING THE VIEW OF LD. ASSESSING OFFICER IN ASSESSING THE GROSS INTEREST INCOME UNDER THE HEAD 'INCOME FROM OTHER SOURCES'. 3. THE ID. COMMISSIONE R OF INCOME '['AX (APPEALS) - 41 ERRED IN UPHOLDING THE VIEW OF LD. ASSESSING OFFICER IN ASSESSING THE INCOME FROM MUTUAL FUNDS UNDER THE HEAD 'SHORT TERM CAPITAL GAINS'. 4. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 41 ERRED IN UPHOLDING THE VIEW OF ID. AO BY NOT ALLOWING DEDUCTION OF THE EXPENSES DEBITED TO THE PROFIT & LOSS ACCOUNT WHICH WERE INCURRED WHOLLY AND EXCLUSIVELY FOR THE BUSINESS CARRIED ON BY THE APPELLANT DURING THE PREVIOUS YEAR. 5. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 41 ERRED IN UPHOLDING THE VIEW OF LD. ASSESSING OFFICER WITHOUT PREJUDICE TO GROUND NO. 3 IN NOT ALLOWING DEDUCTION OF EXPENSES DEBITED TO THE PROFIT & LOSS ACCOUNT WHICH WHOLLY AND EXCLUSIVELY INCURRED IN RELATION TO EARNING OF INTEREST INCOME/OTHER INCOME. ITA. NO S.4852 & 4853 / M/201 4 A.Y. 20 08 - 09 & 2009 - 10 3 6. ON T HE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A) ERRED IN THE CONFIRMING ALLOWANCE OF INTEREST EXPENDITURE CLAIMED U/S 57(III) OF THE INCOME TAX ACT 1961 ONLY TO THE EXTENT OF RS. 23 84 07 417/ - AS AGAINST RS. 42 42 35 075/ - . 7 . THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 41 ERRED IN CONFIRMING THE VIEW OF LD. ASSESSING OFFICER IN DISALLOWING OF RS. 3 89 99 138/ - U/S 14A R.W.R. 8 D WITHOUT APPRECIATING THE FACTS OF THE CASE PLACED BEFORE HIM DURING APPELLATE PROCEEDINGS. 8. TH E ORDER PASSED BY THE COMMISSIONER OF INCOME - TAX (APPEALS) IS ILLEGAL HAD IN LAW ULTRA VIRES AND CONTRARY TO THE PROVISIONS OF LAW AND FACTS OF THE CASE AND WITHOUT APPRECIATING THE FACTS OF THE CASE IN THEIR PROPER PERSPECTIVE. THE ASSESSEE HAS RAISED THE FOLLOWING REVISED GROUNDS.: - 1. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 41 ERRED IN UPHOLDING THE VIEW OF THE LD. ASSESSING OFFICER WITHOUT PREJUDICE TO THE GROUNDS OF APPEAL NO. 2 IN NOT ALLOWING DEDUCTION OF EXPENSES DEBITED TO PROFIT & LO SS ACCOUNT WHICH WHOLLY AND EXCLUSIVELY INCURRED IN RELATION TO EARNING OF INTEREST INCOME/OTHER INCOME. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) ERRED IN THE CONFIRMING DISALLOWANCE OF INTEREST EXPENDITURE CLAIME D U/S 57(III) OF THE INCOME TAX ACT 1961 . 4 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME ON 27 .0 9 .20 08 DECLARING TOTAL INCO ME TO THE TUNE OF RS. 13 19 55 237 / - . NOTICES U/S 143(2) & 142(1) WERE ISSUED AND SERVED UPON THE AS SESSEE. THE ASSESSEE COMPANY WAS REGISTERED UNDER THE ITA. NO S.4852 & 4853 / M/201 4 A.Y. 20 08 - 09 & 2009 - 10 4 COMPANIES ACT 1956 WITH THE OBJECT OF ENGAGING IN THE BUSINESS OF DEVELOPMENT AND OPERATION OF INFRASTRUCTURE FACILITIES IN INDIA INCLUDING DEVELOPING OF SPECIAL ECONOMIC ZONES (SEZ). THE BUSINESS OF T HE ASSESSEE WAS TO DEVELOP AND OPERATE INFRASTRUCTURE FACILITIES IN INDIA LIKE DEVELOPMENT OF SPECIAL ECONOMIC ZONES AT NAVI MUMBAI. THE C OMPANY WAS ALSO STATED THAT IN THE SETTING UP AND DEVELOPMENT OF SEZ PROJECT AT KHOPTA IN THE STATE OF MAHARASHTRA I.E . MAHA MUMBAI SEZ. DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE WAS CONTINUED WITH THE STATUS OF ITS PROJECT OF SEZ AS IT WAS IN EARLIER YEAR WITH THE WHOLE PROJECT BEING STILL AT THE STAGE OF WORK IN PROGRESS (WIP). DURING THE YEAR UNDER CONSIDERATIO N THERE WAS IN INSIGNIFICANT INCREASE IN T HE WIP AS COMPARED TO LAST YEAR LOOKING TO THE OVERALL SIZE AND MAGNITUDE OF THE SEZ PROJECT. HOWEVER IN SCHEDULE - N DEALING WITH NOTES ON ACCOUNTS FOR THE ANNUAL REPORT THE ASSESSEE HAS PROVIDED THE STATE OF P ROJECT AND CERTAIN ACCOUNTING TREATMENT AS UNDER.: - '1. COMPANY IS ACTIVELY ENGAGED IN THE SETTING UP AND DEVELOPMENT OF SEZ PROJECT AT KHOPTA IN THE STATE OF MAHARASHTRA VIZ. MAHA MUMBAI SEZ (MMSEZ). THE MINISTRY OF COMMERCE AND INDUSTRIES GOVERNMENT OF INDIA HAD ACCORDED IN PRINCIPAL APPROVAL TO THE COMPANY TO SET UP SPECIAL ECONOMIC ZONE (SEZ) AT KHOPTA DISTRICT RAIGAD IN MAHA RASHTRA VIDE ITS LETTER DATED 8 TH AUGUST 2003 VALID FOR A PERIOD OF 3 YEARS WHICH WAS EXTENDED TILL 7TH AUGUST 2009 BY THE M INISTRY OF COMMERCE AND INDUSTRIES GOVERNMENT OF INDIA VIDE ITS LETTER DATED 11TH JUNE 2008 ITA. NO S.4852 & 4853 / M/201 4 A.Y. 20 08 - 09 & 2009 - 10 5 2. A) UNTIL MARCH 31 2007 NO PROFIT & LOSS ACCOUNT WAS PREPARED BY THE COMPANY AS ITS SPECIAL ECONOMIC ZONE PROJECTS WERE UNDER DEVELOPMENT AND THE EXPENDITURE (INCLUDING CAPITAL WORK IN PROGRESS) DURING THE DEVELOPMENT PERIOD WERE CLASSIFIED AS 'PROJECT DEVELOPMENT EXPENDITURE' PENDING ALLOCATION UNDER THE CAPITAL WORK - IN - PROGRESS HOWEVER BASED ON THE OPINION GIVEN BY THE EXPERT ADVISOR/ COMMITTEE OF THE INSTI TUTE OF CHARTERED ACCOUNTANT OF INDIA REGARDING ACCOUNTING FOR PROPERTY DEVELOPMENT EXPENDITURE AND INCOME BY DEVELOPERS AND BASED ON COMPANY'S FUTURE PLANS THE COMPANY HAS CONSIDERED SUCH PROJECT DEVELOPMENT EXPENDITURE AS INVENTORY.' 5. DURING THE YEA R CONSIDERATION THE ASSESSEE HAS DRAWN UP PROFIT & LOSS A/C AND TOOK THE STAND THAT THE BUSINESS OF ASSESSEE HAS COMMENCED IN THIS YEAR. HENCE IT IS IMPORTANT TO DETERMINE AND ASCERTAIN AS TO WHETHER THE ASSESSEE HAS ACTUALLY COMMENCED ITS BUSINESS DURIN G THE YEAR. THE MAIN OBJECT OF THE ASSESSEE COMPANY AS PROVIDED IN THE MEMORANDUM OF ASSOCIATI ON OF MUMBAI SEZ LIMITED IS REPRODUCED AS UNDER.: - 1. TO CARRY ON THE BUSINESS OF PROMOTERS DEVELOPERS BUILDERS CREATORS OPERATORS OWNERS CONTRACTORS ORGA NIZERS OF ALL AND ANY KIND OF PORT BASED INFRASTRUCTURE FACILITIES AND SERVICES INCLUDING CITIES TOWNS ROADS PORTS AIRPORTS AIRWAYS RAILWAYS TRAMWAYS MASS RAPID TRANSPORT SYSTEMS CARGO MOVEMENT AND MANAGEMENT SYSTEMS CARGO HANDLING EQUIPMENTS W ATER SUPPLY POWER GENERATION TRANSMISSION AND DISTRIBUTION INDUSTRIAL ESTATES GREEN PARKS RELATING PORT INFRASTRUCTURAL ENVIRONMENTAL PROTECTION AND POLLUTION CONTROL TRANSPORT PUBLIC UTILITIES MUNICIPAL SERVICES - ITA. NO S.4852 & 4853 / M/201 4 A.Y. 20 08 - 09 & 2009 - 10 6 CLEARING - HOUSE - AGENCY -- AND STEVE DORING SERVICES AND CREATION OF LIKE INFRASTRUCTURE FACILITIES AND SERVICES VIZ. TELECOMMUNICATION CELL SERVICES CABLE SERVICES AND SATELLITE COMMUNICATION NETWORKING. 2. TO CARRY ON THE BUSINESS OF PROMOTERS DEVELOPERS BUILDERS CREATORS OPERATORS OWNERS CONTRACTORS AND ORGANIZERS OF RESIDENTIAL HOUSING PARKS AND COLONIES SOCIAL AMENITIES CENTERS EDUCATIONAL INSTITUTIONS VIZ SCHOOLS COLLEGES UNIVERSITY ENTERTAINMENT AND RECREATIONAL FACILITIES AMUSEMENT PARK AND RESORTS MEDICAL FACILITIES V IZ CLINICS HOSPITALS AND LABORATORIES AND MEDICAL COLLEGE IN ALL ITS BRANCHES SECURITY AND POLICING SERVICES FIRE AND LOSS PROTECTION SERVICES BANKING AND INSURANCE SERVICE AND THE LIKE ADMINISTRATIVE INFRASTRUCTURE. 3. TO PROCURE AND ADOPT PURCHASE OR IN ANY OTHER MANNER ACQUIRE ANY INTEREST RIGHT TITLE RIGHT CONCESSION LICENSE FOR BUILDING OPERATING AND FOR ANY OTHER PURPOSES IN ANY OF THE ABOVE INFRASTRUCTURAL FACILITIES AND SERVICES AND TO PROMOTE DEVELOP ACQUIRE RIGHTS CONCESSIONS TITLES OR INTEREST IN AND OPERATE IN ANY MANNER WHATSOEVER AS FREE TRADE ZONE FREE ECONOMIC ZONES EXPORT PROCESSING ZONES OR ANY OTHER ZONES TOWNS CITIES IN ACCORDANCE WITH THE GUIDELINES OF ANY AUTHORITY FOR THE TIME BEING IN FORCE AND TO SELL LEASE ON HI RE GRANTS RIGHTS TITLES INTEREST CONCESSIONS LICENSES FRANCHISES CASEMENT AND OTHERWISE DISPOSE OFF IN ANY MANNER WHATSOEVER ANY SUCH INFRASTRUCTURAL FACILITIES AND SERVICES OR ANY RIGHTS TITLES CONCESSIONS ACQUIRED THEREIN TO ANY PERSON WHETHER IN INDIA OR ABROAD. ITA. NO S.4852 & 4853 / M/201 4 A.Y. 20 08 - 09 & 2009 - 10 7 4. TO CONSTITUTE AND BE PART IN CONSTITUTION OF ANY STATUTORY BODY AREA DEVELOPMENT AUTHORITY CITY MANAGEMENT AUTHORITY MUNICIPAL AUTHORITY TOWN PLANNING AND ADMINISTRATION AUTHORITY AND SUCH OTHER AUTHORITY/AUTHORITIES AS MAY BE P ERMISSIBLE UNDER THE LAWS FOR THE TIME BEING IN FORCE IN THE COUNTRY. 5. TO ACT AS PROMOTES DEVELOPERS CREATORS OPERATORS OWNERS CONTRACTORS AND ORGANIZER AND TO CARRY ON TRADE AND COMMERCE IN ALL TYPES OF GOODS COMMODITIES AND SERVICES AND TO BUILD COMMERCIAL COMPLEXES AND MARKET YARDS SHOPPING CENTERS AND MALL ETC. 6. TO CARRY ON THE BUSINESS AS PROMOTERS DEVELOPERS CREATORS OPERATORS OWNERS CONTRACTORS ORGANIZERS OF PLANTATION HORTICULTURES SERICULTURES AGRICULTURES RECREATIONS FACILIT IES ENTERTAINMENT PARKS AMUSEMENT FACILITIES HOTELS RESORTS CLUBS CASINOS GOLF COURSES WATER PARKS SPORT COMPLEXES FOR INDOOR AND OUTDOOR GAMES HEALTH CLUB AND ANY OTHER LIKE FACILITIES FOR ENTERTAINMENT AND RECREATION. 6. AFTER THE CERTAIN DI SALLOWANCE THE REVISED TOTAL INCOME OF THE ASSESSEE WAS ASSESSED TO THE TUNE OF RS.42 42 35 075/ - . THE CAPITAL WORK IN PROGRESS/WIP/INVENTORY WAS REDUCED BY THE TOTAL AMOUNT OF RS.19 53 23 031/ - (RS.15045 78 130/ - ON ACCOUNT OF DISALLOWANCE OF INTEREST EX PENSES RS.3 89 99 138/ - ON ACCOUNT OF DISALLOWANCE U/S 14A AND RS.17 45 763/ - ON ACCOUNT OF DISALLOWANCE OF SOCI AL WELFARE EXPENSES). THE ASSESSEE WAS NOT SATISFIED WITH THE ASSESSMENT AND FILED THE APPEAL BEFORE CIT(A) WHO PARTLY ALLOWED THE CLAIM OF TH E ASSESSEE BUT THE ASSESSEE ITA. NO S.4852 & 4853 / M/201 4 A.Y. 20 08 - 09 & 2009 - 10 8 WAS NOT SATISFIED WITH THE GROUNDS RAISED IN THE PRESENT APPEALS MENTIONED ABOVE HENCE THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. ISSUE NO.1 7 . UNDER THIS ISSUE THE ASSESSEE HAS CHALLENGED THE FINDING OF THE AO IN WH ICH IT WAS HELD THAT THE ASSESSEE HAD NOT STARTED THE BUSINESS DURING THE PREVIOUS YEAR UNDER CONSIDERATION. AT THE VERY OUTSET THE LD. REPRESENTATIVE OF THE ASSESSEE HAS ARGUED THAT THE ISSUE IS COVERED WITH THE FINDING OF THE HONBLE ITAT IN THE ASSESSE ES OWN CASE FOR THE A.Y. 2003 - 04 BEARING ITA. NO. 804/AHD/2010 DATED 25.04.2014. THE COPY OF THE ORDER IS ON THE FILE AND THE RELEVANT FINDING IS GIVEN IN PARA NO. 5 & 5 - 1 WHICH IS REPRODUCED S UNDER.: - 5. WE HAVE HEARD BOTH THE SIDES AT SOME LENGTH. AS FAR AS THE QUESTION OF SETTING UP OF THE BUSINESS IS CONCERNED WE MAY LIKE TO MENTION AT THE OUTSET THAT IN A DECISION PRONOUNCED BY RESPECTED THIRD MEMBER ITAT PUNE BENCH IN THE CASE OF STYLER INDIA PVT. LTD. 113 ITD 55 (PUNE) WHEREIN (JM IS THE PARTY). IT WAS PRONOUNCED THAT THE ASSESSEECOMPANY BEING INCORPORATED FOR RENDERING ADVISORY AND CONSULTANCY SERVICES IN THE FIELD OF AUTOMOBILES AND HAVING A PLACE OF BUSINESS AND EMPLOYED QUALIFIED PEOPLE TO RENDER ADVICE AND HAVING CONTACTED VARIOUS CLIENTS WH O ENTERED INTO AGREEMENT WITH THE ASSESSEE THEN IT COULD BE HELD THAT THE ASSESSEE HAD SET UP ITS BUSINESS. HOWEVER IT WAS ALSO HELD THAT THE EXPENDITURE ON BUILDING WAS CAPITAL IN NATURE THEREFORE NOT ALLOWABLE. IN THE PRESENT CASE FACTS OF THE CASE H AVE REVEALED THAT THE ASSESSEE - COMPANY WAS CONSTITUTED TO DEVELOP AND ITA. NO S.4852 & 4853 / M/201 4 A.Y. 20 08 - 09 & 2009 - 10 9 OPERATE INFRASTRUCTURE FACILITIES IN INDIA TOWARDS DEVELOPMENT OF SPECIAL ECONOMIC ZONES AT POSITRA IN THE STATE OF GUJARAT. THE ASSESSEE HAD OBTAINED AN APPROVAL FROM THE GUJARAT STATE AND UNION GOVERNMENT. THE ASSESSEE HAS COMMENCED THE PROCESS OF LAND ACQUISITION FROM PRIVATE PARTIES. THE ASSESSEE HAD CONDUCTED A SURVEY AND STARTED REHABILITATION ACTIVITIES TO PERFORM THE ABOVE ACTIVITIES. THE ASSESSEE HAD RECRUITED EMPLOYEES ON RENT AL BASIS OFFICE WAS OCCUPIED ENGAGED FEW PROFESSIONALS AND CERTAIN ADMINISTRATIVE AS WELL AS EXPENDITURE WERE INCURRED. THERE WAS SOCIOPOLITICAL DEVELOPMENT IN GUJARAT; HENCE THE ASSESSEE HAS FACED SOME PROBLEM BUT THE MANAGEMENT HAD STARTED CONTEMPLATIN G AN INTEGRATED SEZ AT MUMBAI. ALTHOUGH THE GUJARAT PROJECT WAS NOT STARTED WITH FULL SWING BUT THE SETTING UP OF MAHA MUMBAI SEZ WAS IN FULL SWING. THE REQUISITE APPROVAL WAS ALSO OBTAINED FROM THE GOVERNMENT. AFTER OBTAINING THE APPROVAL FROM THE MINIST RY OF COMMERCE GOVERNMENT OF INDIA IMMEDIATELY THEREAFTER THE PROJECT WAS LAUNCHED ON 9TH AUGUST 2003. BECAUSE OF THESE FACTS WE HEREBY HOLD FOLLOWING THE DECISION OF STYLER INDIA PVT. LTD. (SUPRA) WHEREIN THIS ISSUE OF SETTING UP OF BUSINESS HAD BE EN DISCUSSED AT LENGTH THAT THE ASSESSEES BUSINESS WAS SET UP AND THE EXPENSES WERE INCURRED TO PROPAGATE THE BUSINESS OF THE ASSESSEE. IT IS WORTH TO MENTION THAT IN ONE OF THE CASE ITAT J BENCH MUMBAI PRONOUNCED IN THE CASE OF DE BEERS INDIA PROSPECTI NG PVT. LTD. BEING ITA NOS.40/MUM/2006 6560 6561 & 6562/MUM/2007 ORDER DATED 16.12.2011 HAS HELD AS UNDER: ITA. NO S.4852 & 4853 / M/201 4 A.Y. 20 08 - 09 & 2009 - 10 10 THE REASON FOR DISALLOWANCE OF THE EXPENDITURE AND PERMITTING IT TO BE CAPITALIZED BY AO IS ON THE OPINION THAT THE ASSESSEE HAS NOT COMMENCED ITS BUSINESS ACTIVITIES. COMMENCEMENT OF THE BUSINESS ACTIVITIES HAS VARIOUS FACTS. AS PERMITTED BY THE DEPARTMENT OF INDUSTRIAL POLICY AND PROMOTION THE ASSESSEE IS PERMITTED TO UNDERTAKE PROSPECTING AND MINING ACTIVITIES FOR DIAMONDS ORIGINALLY AND SUB SEQUENTLY PROSPECTING FOR OTHER MINERALS ALSO (EXCEPT COAL AND IRON ORE) FOR PRIVATE PARTICIPATION. THIS INDICATE THAT THE ASSESSEE WAS PERMITTED TO INDULGE IN MINING ACTIVITIES ONLY WITH REFERENCE TO DIAMONDS WHEREAS IT WAS NOT PERMITTED TO INVOLVE IN MIN ING ACTIVITIES FOR OTHER MINERALS. PROSPECTING IS AN ACTIVITY PRIOR TO ACTIVITY OF MINING. WITHOUT PROSPECTING AND WITHOUT EXAMINING WHETHER PARTICULAR PRECIOUS STONES/MINERALS WERE AVAILABLE IN A PARTICULAR AREA IT IS NOT POSSIBLE TO UNDERTAKE MINING AC TIVITIES . HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT VS. FRANCO TOSI INGEGNERIA (2000) 241 ITR 268 CONSIDERED THAT ASSESSEE HAS COMMENCED ITS BUSINESS FROM THE TIME IT OPENED ITS SITE OFFICE AND ALLOWED THE EXPENDITURE UNDER SECTION 37(1). IN VIEW O F THE PRINCIPLES DECIDED IN ABOVE CASES WE ARE OF THE OPINION THAT THE ASSESSEE'S ACTIVITIES OF PROSPECTING WHICH IS A PERMITTED ACTIVITY BY THE FIPB IN WHICH THE ASSESSEE HAS CONSIDERABLE EXPERTISE AND FURTHER CONSIDERING THAT VARIOUS PERMISSIONS GRANTE D BY THE GOVT. OF ANDHRA PRADESH WAS ONLY FOR RECONNAISSANCE WITH REFERENCE TO EXPLORATION OF DIAMONDS IT CAN BE CONCLUDED THAT THE ASSESSEE HAS COMMENCED ITS ITA. NO S.4852 & 4853 / M/201 4 A.Y. 20 08 - 09 & 2009 - 10 11 BUSINESS FROM THE TIME IT STARTED THE PROSPECTING ACTIVITY. IT IS ALSO SEEN FROM THE PERMISSIONS GRANTED BY THE FIPB THAT IN SOME CASES THE ASSESSEE WAS PERMITTED TO UNDERTAKE FOR PROSPECTING ONLY FOR OTHER MINERALS (EXCEPT COAL AND IRON ORE). THEREFORE PROSPECTING ACTIVITY ITSELF IS TO BE CONSIDERED AS ASSESSEE'S BUSINESS ACTIVITY. THERE IS NO DISP UTE WITH REFERENCE TO THE EXPENDITURE BEING SPENT ON PROSPECTING ACTIVITIES IN THE YEAR UNDER CONSIDERATION. ACCORDINGLY IT IS HELD THAT THE ASSESSEE HAS COMMENCED ITS BUSINESS ACTIVITIES. 5.1 CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF TH E CASE AND THE DETAILS OF THE PROJECT DEVELOPMENT EXPENDITURE AS ANNEXED TO THE BALANCE SHEET OF THE ASSESSEE WE HEREBY HOLD THAT FOR THE YEAR UNDER CONSIDERATION THE BUSINESS WAS SET UP BY THE ASSESSEE. 8. ON APPRAISAL OF THE ABOVE MENTIONED FINDING I T IS QUITE CLEAR THAT THE HONBLE ITAT HAS HELD THAT THE ASSESSEE HAS STARTED THE BUSINESS IN THE A.Y. 200 3 - 04 HENCE NO DOUBT WHEN IT HAS ALREADY BEEN HELD THAT THE ASSESSEE HAS STARTED THE BUSINESS OF A.Y.2003 - 04 THEN IN THE PRESENT ASSESSMENT YEAR BUSI NESS IS LIABLE TO BE CONSIDERED AS COMMENCED ACCORDINGLY. THIS ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE AGAINST THE REVENUE. ISSUE NO.2 9. UNDER THIS ISSUE THE ASSESSEE HAS CHALLENGED THE INTEREST INCOME WHICH HAS BEEN TREATED AS INCOME FROM THE OTHER SO URCES. THE CONTENTION OF ITA. NO S.4852 & 4853 / M/201 4 A.Y. 20 08 - 09 & 2009 - 10 12 THE LD. REPRESENTATIVE OF THE ASSESSEE IS THAT THE GROSS INTEREST INCOME IS LIABLE TO BE TREATED AS BUSINESS INCOME AND IN THIS REGARD THE ISSUE IS ALSO COVERED BY THE DECISION OF HONBLE ITAT IN THE ASSESSEES OWN CASE BEARING ITA . NO.804/AHD/2010 FOR THE A.Y. 2003 - 04 DATED 25.04.2014. T H E COPY OF THE ORDER IS ON THE FILE IN WHICH THE RELEVANT FINDING HAS BEEN GIVEN IN PARA NO. 5.2 & 5.3 WHICH IS HEREBY REPRODUCED AS UNDER.: - 5.2 AFTER HOLDING THAT THE BUSINESS WAS SET UP NOW THE NEXT QUESTION IS THAT HOW THE INTEREST EARNED AND INTEREST PAID IS TO BE COMPUTED FOR THE TAX PURPOSE. WE HAVE NOTED THAT EVEN THIS ISSUE HAS ALSO BEEN DEALT WITH BY ITAT J BENCH MUMBAI IN THE CASE OF DE BEERS INDIA PROSPECTING PVT. LTD (SUPRA) AND RELEV ANT PARAGRAPH 12 IS EXTRACTED BELOW: 12. EVEN THOUGH BOTH THE COUNSELS RELIED ON VARIOUS CASE LAW SUPPORTING THEIR RESPECTIVE STANDS WE ARE OF THE OPINION THAT THIS ISSUE HAS BECOME ACADEMIC IN NATURE AS THE INCOMES OF INTEREST WHETHER ASSESSED UNDER TH E HEAD 'BUSINESS' OR 'INCOME FROM OTHER SOURCES' THE SAME IS ELIGIBLE FOR SET OFF TO THE OTHER EXPENDITURE BEING CLAIMED UNDER THE HEAD 'BUSINESS'. CONSEQUENT TO OUR FINDING THAT THE ASSESSEE HAS COMMENCED ITS BUSINESS AND IS ELIGIBLE FOR CLAIM OF DEDUCTI ON UNDER SECTION 37(1) ON EXPENDITURE OF NON - PROSPECTING ACTIVITIES AND DEPRECIATION THEREON THE ASSESSEE IS ELIGIBLE FOR SET OFF OF THE INTEREST INCOME. SINCE THE ISSUE BECOMES ACADEMIC IN NATURE WE DO NOT INTEND TO GO INTO THE ASPECT WHETHER INCOME IS TO BE ASSESSED AS BUSINESS INCOME OR OTHER SOURCES. THERE IS VARIOUS CASE LAW ON THE ISSUE HOLDING IF THE CAPITAL FUNDS ARE KEPT IN DEPOSITS ITA. NO S.4852 & 4853 / M/201 4 A.Y. 20 08 - 09 & 2009 - 10 13 THEN THE INCOME IS TO BE ASSESSED AS INCOME FROM OTHER SOURCES AND IF THE WORKING CAPITAL FUNDS ARE KEPT THEN TO BE TREATED AS BUSINESS INCOME BUT MOST OF THE CASE LAW WAS GIVEN ON RESPECTIVE FACTS. MOST OF THE ISSUES AROSE AS DEDUCTIONS ARE BEING CLAIMED ON NON - OPERATIONAL INCOMES ALSO. IN THAT CONTEXT VARIOUS DECISIONS WERE RENDERED DEPENDING ON FACTS AND APPLICABLE LAW. THE DISCUSSION WILL BECOME ONLY ACADEMIC IN NATURE IN THIS CASE WITHOUT THERE BEING ANY CONSEQUENTIAL EFFECT AS INTEREST INCOME IS ELIGIBLE FOR SET OFF TO BUSINESS LOSS WHETHER ASSESSED AS INCOME FROM BUSINESS OR INCOME FROM OTHER SOURCES. THE ASSESS ING OFFICER IS HOWEVER DIRECTED TO ALLOW THE SET OFF OF BUSINESS LOSS AS PER THE PROVISIONS OF THE ACT. 5.3 WE ARE ALSO OF THE OPINION THAT THE ASSESSEE IS EXPECTED TO PLACE ON RECORD THE PURPOSE OF THE DEPOSIT UTILIZATION OF FUNDS AND MOST IMPORTANT FAC T IS ALSO TO BE BROUGHT ON RECORD ABOUT THE NEXUS OF INTEREST EARNED AND INTEREST PAID. WE THEREFORE HEREBY HOLD THAT THE MATTER SHOULD GO BACK TO THE STAGE OF THE AO SO THAT THE PROCUREMENT OF FUNDS ITS UTILIZATION AND THE SOURCE OF DEPOSIT HAS TO BE E XAMINED AFRESH BY THE AO SO THAT THE NEXUS CAN BE ESTABLISHED IN RESPECT OF THE INTEREST EARNED AND INTEREST PAID. WITH THESE DIRECTIONS THE GROUNDS RAISED BY THE ASSESSEE ARE PARTLY ALLOWED THAT TOO FOR STATISTICAL PURPOSE. 10. ON APPRAISAL OF THE ABOVE MENTIONED FINDING WE NOTICED THAT THE ASSESSEE WAS UNDER OBLIGATION TO PL ACE ON RECORD T HE PURPOSE OF THE DEPOSIT UTILIZATION OF FUND S AND MOST IMPORTANT FACT IS ALSO TO BE BROUGHT ON RECORD ABOUT THE NEXUS OF INTEREST EARNED AND INTEREST PAID. ACCORDING LY THE AO WAS D IRECTED TO EXAMINE THE MATERIAL AFRESH SO THAT THE NEXUS CAN BE ITA. NO S.4852 & 4853 / M/201 4 A.Y. 20 08 - 09 & 2009 - 10 14 ESTABLISHED IN RESPECT OF INTEREST EARNED AND INTEREST PAID. ACCORDINGLY WE SET ASIDE THE FINDING OF THE CIT(A) ON THIS ISSUE AND RESTORE THE ISSUE BEFORE THE AO TO DECIDE THE CONTROVERSY AFRESH IN ACCORDANCE ABOVE MENTIONED GUIDELINES. ISSUE NO.3 11. THIS ISSUE HAS NOT BEEN PRESSED BY THE LD. REPRESENTATIVE OF THE ASSESSEE THER EFORE THIS ISSUE IS BEING DECIDED IN FAVOUR OF THE REVENUE AGAINST THE ASSESSEE BEING NOT PRESSED. ISSUE NO. 4 12. UNDER THIS ISSUE THE ASSESSEE HAS CHALLENGED THE DISALLOWANC E OF DEDUCTION OF EXPENSES DEBITED TO THE PROFIT & LOSS ACCOUNT WHICH WERE INCURRED WHOLLY AND EXCLUSIVELY FOR THE BUSINESS CARRIED ON BY THE APPELLANT DURING THE PREVIOUS YEAR. SIN CE THE BUSINESS HAS BEEN COMMENCED IN THE YEAR 2003 - 04 THEN NO DOUBT THE DEDUCTION OF EXPENSES DEBITED TO THE PROFIT & LOSS ACCOUNT WHICH WERE INCURRED WHOLLY AND EXCLUSIVELY FOR THE BUSINESS CARRIED ON BY THE APPELLANT IS LIABLE TO BE ALLOWED IN ACCORDANC E WITH LAW . IN THIS RE GARD NO DOUBT THE AO IS UNDER OBLIGATION TO VERIFY THE FACTS AND TO ALLOW THE CLAIM OF THE ASSESSEE HENCE THIS ISSUE IS RESTOR E TO THE AO TO ALLOW THE CLAIM IN ACCORDANCE WITH LAW. ISSUE NO.5 13. UNDER THIS ISSUE THE ASSESSEE HAS CH ALLENGED THE DISALLOWANCE OF DEDUCTION OF EXPENSES DEBITED TO THE PROFIT & LOSS ACCOUNT WHICH WERE INCURRED WHOLLY AND EXCLUSIVELY FOR THE BUSINESS CARRIED ON BY THE APPELLANT ITA. NO S.4852 & 4853 / M/201 4 A.Y. 20 08 - 09 & 2009 - 10 15 DURING THE PREVIOUS YEAR. SINCE THE BUSINESS HAS BEEN COMMENCED IN THE YEAR 2003 - 04 THEN NO DOUBT THE DEDUCTION OF EXPENSES DEBITED TO THE PROFIT & LOSS ACCOUNT WHICH WERE INCURRED WHOLLY AND EXCLUSIVELY FOR THE BUSINESS CARRIED ON BY THE APPELLANT IS LIABLE TO BE ALLOWED IN ACCORDANCE WITH LAW . I N THIS REGARD NO DOUBT THE AO IS UND ER OBLIGATION TO VERIFY THE FACTS AND TO ALLOW THE CLAIM OF THE ASSESSEE HENCE THIS ISSUE IS RESTORE TO THE AO TO ALLOW THE CLAIM IN ACCORDANCE WITH LAW. ISSUE NO.7 15. HAVING CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIAL ON RECORD THE FACTUAL POSITIO N WHICH EMERGES IS IN THE YEAR UNDER CONSIDERATION THE ASSESSEE HAS NOT EARNED ANY EXEMPT INCOME . THAT BEING THE CASE AS PER SETTLED PRINCIPLE OF LAW NO DISALLOWANCE UNDER SECTION 14A R/W RULE 8D CAN BE MADE. IN THIS CONTEXT WE MAY REFER TO THE DECISIO N OF THE HON'BLE JURISDICTIONAL HIGH COURT IN PCIT V/S RIVIAN INTERNATIONAL PVT. LTD. ITA NO.693 OF 2015 JUDGMENT DATED 21ST NOVEMBER 2017. IN VIEW OF THE AFORESAID WE DELETE THE DISALLOWANCE MADE BY THE ASSESSING OFFICER AND SUSTAINED BY LEARNED COMMIS SIONER (APPEALS). THIS GROUND IS ALLOWED. REVISED GROUND NO. 5 16. UNDER THIS ISSUE THE ASSESSEE HAS CHALLENGED THE DISALLOWANCE OF DEDUCTION OF EXPENSES DEBITED TO THE PROFIT & LOSS ACCOUNT WHICH WERE INCURRED WHOLLY AND EXCLUSIVELY FOR THE BUSINESS CARRI ED ON BY THE APPELLANT DURING THE PREVIOUS YEAR. SINCE THE BUSINESS HAS BEEN COMMENCED IN THE YEAR 2003 - 04 THEN NO DOUBT THE DEDUCTION OF EXPENSES DEBITED TO THE PROFIT & LOSS ACCOUNT WHICH WERE INCURRED WHOLLY AND EXCLUSIVELY FOR THE BUSINESS ITA. NO S.4852 & 4853 / M/201 4 A.Y. 20 08 - 09 & 2009 - 10 16 CARRIED ON B Y THE APPELLANT IS LIABLE TO BE ALLOWED IN ACCORDANCE WITH LAW . I N THIS REGARD NO DOUBT THE AO IS UNDER OBLIGATION TO VERIFY THE FACTS AND TO ALLOW THE CLAIM OF THE ASSESSEE IN ACCORDANCE WITH LAW HENCE THIS ISSUE IS RESTORE TO THE AO TO ALLOW THE CLAIM IN ACCORDANCE WITH LAW. REVISED GROUND NO. 6 17. UNDER THIS ISSUE THE ASSESSEE HAS CHALLENGED THE ALLOWANCE OF INTEREST EXPENDITURE CLAIM U/S 57(III) OF THE I. T. ACT 1961 ONLY TO THE EXTENT OF RS.23 84 07 417/ - AS AGAINST RS.42 42 35 075/ - . T HE ASSESSEE HAS MADE AN ALTERNATIVE CLAIM OF DEDUCTION UNDER SECTION 57(III) OF THE ACT IN RESPE CT OF INTEREST EXPENDITURE OF RS.23 84 07 417 AS AGAINST RS.42 42 35 075/ - . AS DISCUSSED EARLIER INCOME EARNED FROM ICDS WAS HELD BY THE DEPARTMENTAL AUTHORITIES AS INCOME FROM OTHER SOURCE AS AGAINST BUSINESS INCOME CLAIMED BY THE ASSESSEE. THE ALTERNATIVE CLAIM MADE BY THE ASSESSEE FOR DEDUCTION OF INTEREST EXPENDITURE UNDER SECTION 57(III) OF THE ACT IN RESPECT OF SUCH INCOME WAS REJECTED ON THE GROUND THAT SUCH INTEREST EXPENDITURE HAS NO NEXUS WITH THE INTEREST EARNED ON ICDS. WHILE DECIDING GROUNDS NO.1 AND 3 OF ASSESSEES APPEAL WE HAVE HELD THAT INTEREST EARNED ON ICDS ARE TO BE TREATED AS INCOME FROM BUSINESS. CONSEQUENTLY THE INTEREST EXPENDITURE CLAIMED BY THE ASSESSEE HAS TO BE ALLOWED. THEREFORE THE ALTERNATIVE CLAIM OF DEDUCTION UNDER SECTION 57(III) OF THE ACT BECOMES REDUNDANT. SUFFICE IT TO SAY ASSESSEES CLAIM OF DEDUCTION UNDER SECTION 57(III) OF THE ACT IN RESPECT OF INTEREST EXPENDITURE HAS BEEN ALLO WED BY LEARNED COMMISSIONER (APPEALS) AND THE ISSUE HAS ATTAINED FINALITY AS NEITHER THE ASSESSEE NOR THE REVENUE HAS CONTESTED THE ORDER OF LEARNED COMMISSIONER (APPEALS). THEREFORE EVEN OTHERWISE ALSO ASSESSEES CLAIM ITA. NO S.4852 & 4853 / M/201 4 A.Y. 20 08 - 09 & 2009 - 10 17 OF DEDUCTION UNDER SECTION 57(III) OF THE ACT IS ALLOWABLE. THE GROUND IS DISPOSED OF ACCORDINGLY. ITA. NO. 4853 /M/201 4 18 . THE FACTS OF THE PRESENT CASE ARE QUITE SIMILAR TO THE FACT OF THE CASE AS NARRATED ABOVE WHILE DECIDING THE ITA. NO.4852 /M/201 4 THEREFORE THERE IS NO NEED TO REPEAT THE SAME. HOWEVER THE FIGURE IS DIFFERENT. THE MATTER OF CONTROVERSY IN CONNECTION WITH THE GROUND NOS. 1 2 4 5 6 & 7 ARE ALSO THE SAME THEREFORE THE FIN DING GIVEN ABOVE IN ITA. NO.4852 /M/201 4 IS QUITE APPLICABLE TO THESE GROUNDS AS MUTATIS MUTAND IS . GROUND NO. 8 IS IN CONNECTION WITH THE CONFIRMATION OF DISALLOWANCE OF RS.27 32 67 125/ - OUT OF INTEREST CAPITALIZED TO WORK IN PROGRESS (WIP) . ADVANCED GIVEN TO THE SISTER CONCERN FOR PURCHASE OF LAND. THE AO DISALLOWED THE INTEREST EXPENSES AND DID N OT ALLOW TO GET CAPITALIZED TO WIP. ADDITIONAL E VIDENCE WAS FILED BEFORE THE CIT(A) APPEAL WHO DID NOT ADMIT THE ADDITIONAL EVIDENCE. THE ADVANCE WAS GIVEN TO THE SISTER CONCERN WHO IS ALSO ENGAGED IN THE BUSINESS OF LAND DEVELOPMENT AND USED IT FOR BUSINE SS PURPOSE. THE LD. REPRESENTATIVE OF THE ASSESSEE HAS PLACED RELIANCE UPON THE DECISION IN THE CASE OF S.A.BUILDERS LTD. VS CIT (207) 288 ITR 1 (SC). TAKING INTO ACCOUNT ALL THE FACTS AND CIRCUMSTANCES W E SET ASIDE THE FINDING OF THE C I T(A) AND RESTORE THE ISSUE BEFO R E THE AO TO EXAMINE THE MATTER OF CONTROVERSY DENOVA . ISSUE NO. 9 & 10 19. THESE ISSUES ARE GENERAL IN NATURE WHICH NOWHERE REQUIRES ANY ADJUDICATION. ITA. NO S.4852 & 4853 / M/201 4 A.Y. 20 08 - 09 & 2009 - 10 18 A CCORDINGLY WE PARTLY ALLOWED THE C LAIM OF THE ASSESSEE . 19 . IN THE RESULT THE APPEAL S FILED BY THE ASSESSEE ARE HEREBY PARTLY ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 01 / 03 / 202 1 SD/ - SD / - ( M. BALAGANESH ) (AMARJIT SINGH / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; DATED : 01 / 03 / 20 2 1 V IJAY PAL SINGH/SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. / DR ITAT MUMBAI 6. / GUARD FILE. / BY ORDER //TRUE COPY// / /(DY./ASSTT. REGISTRAR) / ITAT MUMBAI ITA. NO S.4852 & 4853 / M/201 4 A.Y. 20 08 - 09 & 2009 - 10 19 DATE INITIALS ORIGINAL DICTATION PAD IS ENCLOSED AT THE END OF FILE YES 1. DRAFT DICTATED ON: 01.03.2021 SR. PS/PS 2. DRA FT PLACED BEFORE AUTHOR: 01.03.2021 SR. PS/PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER: JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER: JM/AM 5. APPROVED DRAFT COMES TO THE SR. PS/PS: SR. PS/PS 6. ORDER PRONOUNCED ON: 01. 0 3.2021 SR. PS/PS 7. FILE SENT TO THE BENCH CLERK: 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK: SR. PS/PS 9. DATE ON WHICH FILE GOES TO AR 10. DATE OF DISPATCH OF ORDER: