Alliance Infrastructure Projects Pvt. Ltd vs. DCIT (ITAT Bangalore)

DATE: September 12, 2014 (Date of pronouncement)
DATE: October 17, 2014 (Date of publication)
AY: 2009-2010 & 2010-11
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S. 14A & Rule 8D disallowance cannot be made if there is no exempt income. Cheminvest Ltd. vs. ITO 121 ITD 318 (Ahd) (SB) is not good law.

There is no dispute that the assessee had no exempt income during both the years involved. No doubt as mentioned by the DR, the Special Bench of this Tribunal in the case of Cheminvest Ltd. vs. ITO 121 ITD 318, had held that disallowance under section 14A could be made even in an year in which no exempt income was earned or received by the assessee. This decision of Special Bench of the Tribunal has been, in our opinion, impliedly overruled by various decisions of different High Courts, namely, CIT vs Shivam Motors P. Ltd. (All HC), CIT vs. Corrtech Energy Pvt. Ltd (Guj HC), CIT vs. Winsome Textile Industries Ltd 319 1TR 204 (P&H), CIT Vs.Delite Enterprises (Bom HC) & CIT vs. Lakhani Marketing (P&H HC). Therefore, unless and until there is receipt of exempted income for the concerned assessment years, s. 14A of the Act cannot be invoked.

Note: The same view is taken in Holcim India P. Ltd (Delhi HC) & ACIT vs. M. Baskaran (ITAT Chennai). In Baskaran, Circular No.5/2014 dated 11.2.2014 is referred. In Sundaram Asset Management (ITAT Chennai) it was held that s. 14A does not apply if the gains on transfer are taxable.

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