{"id":135206,"date":"2010-02-11T00:00:00","date_gmt":"2010-02-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/godrej-agrovet-limited-vs-the-deputy-commissioner-of-income-on-11-february-2010"},"modified":"2018-04-11T07:17:46","modified_gmt":"2018-04-11T01:47:46","slug":"godrej-agrovet-limited-vs-the-deputy-commissioner-of-income-on-11-february-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/godrej-agrovet-limited-vs-the-deputy-commissioner-of-income-on-11-february-2010","title":{"rendered":"Godrej Agrovet Limited vs The Deputy Commissioner Of Income … on 11 February, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Godrej Agrovet Limited vs The Deputy Commissioner Of Income … on 11 February, 2010<\/div>\n
Bench: Dr. D.Y. Chandrachud, J.P. Devadhar<\/div>\n
                                                      1\n\n                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                                                    \n                                                O. O. C. J.\n\n                                 WRIT PETITION NO.200 OF 2010\n\n\n\n\n                                                                           \n    Godrej Agrovet Limited                                     ..Petitioner.\n                 Vs.\n    The Deputy Commissioner of Income Tax, 10(2),\n\n\n\n\n                                                                          \n    Mumbai and another                                         ..Respondents.\n                                           ....\n    Mr. Percy J. Pardiwala, Senior Advocate with Mr. Jitendra Jain i\/b Mr. Atul K. \n    Jasani for the Petitioner.\n    Mr. J.S. Saluja for the Respondents.\n\n\n\n\n                                                           \n                                           ....\n                                        ig         CORAM : DR. D.Y.CHANDRACHUD  &\n                                                                   J.P. DEVADHAR, JJ.\n<\/pre>\n
                                                                     11th February, 2010.\n<\/p>\n
    ORAL JUDGMENT (Per Dr. D.Y. Chandrachud, J.):\n<\/p>\n
    1.            Rule,  made returnable forthwith.   By consent of the learned counsel <\/p>\n
    and at their request the matter is taken up for hearing and final disposal.\n<\/p>\n
    2.            The   assessee   in   the   present   case   challenges   the   reopening   of <\/p>\n
    assessment   for   Assessment   Year   2003-04   in   pursuance   of   a   notice   dated   28 th <\/p>\n
    March, 2008 issued by the Deputy Commissioner of Income Tax, 10(2) Mumbai.\n<\/p>\n
    The   controversy   in   the   petition   under   Article   226   falls   in   a   narrow   compass.\n<\/p>\n
    During the course of Assessment Year  2003-04, Section 80-M of the Income Tax <\/p>\n
    Act, 1961 was on the statute book and read thus :\n<\/p>\n
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\n                                                        2<\/span><\/p>\n
                   “80M. Deduction in respect of certain inter-corporate dividends. – (1)
\n                   Where the gross total income of a domestic company, in any previous <\/p>\n
                   year, includes any income by way of dividends from another domestic
\n                   company, there shall, in accordance with and subject to the provisions
\n                   of   this  section,   be   allowed,   in  computing   the   total   income   of   such <\/p>\n
                   domestic company, a deduction of an amount equal to so much of the
\n                   amount   of   income   by   way   of   dividends   from   another   domestic
\n                   company as does not exceed the amount of dividend distributed by
\n                   the first-mentioned domestic company on or before the due date.\n<\/p><\/blockquote>\n
                   (2)   Where   any   deduction,   in   respect   of   the   amount   of   dividend
\n                   distributed by the domestic company, has been allowed under sub-
\n                   section (1) in  any previous year,  no  deduction  shall  be  allowed  in
\n                   respect of such amount in any other previous year.\n<\/p><\/blockquote>\n
                   Explanation  – For the purposes of this section, the expression “due <\/p>\n
                   date” means the date for furnishing the return of income under sub-
\n                   section (1) of section 139.”\n<\/p><\/blockquote>\n
    3.             For   the   purposes   of   these   proceedings   it   is   an   admitted   position <\/p>\n
    before the Court that the assessee received a dividend income of Rs.5,59,02,672\/-\n<\/p>\n
    The dividend income which was received by the assessee company was in respect <\/p>\n
    of   the   holdings   of   the   assessee   in   other   corporate   entities.     The   assessee   also <\/p>\n
    declared and distributed an interim dividend on 26th March, 2003 in the amount <\/p>\n
    of Rs.4.48 Crores and a final dividend on 26th  June, 2003 in the amount of Rs.\n<\/p>\n
    1.13  Crores.    The   assessee   filed     a  return  of  income   on  27 th  November,   2003 <\/p>\n
    declaring   an   income   of   Rs.1.61   Crores.     In   the   computation   of   total   income <\/p>\n
    annexed to the return, the assessee disclosed the dividend of Rs.5.59 Crores under <\/p>\n
    the head of income from other sources.  In annexure 1.3 to the return, the details <\/p>\n
    of the dividend received were provided.  Against the income the assessee claimed <\/p>\n
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\n                                                      3<\/span><\/p>\n
    a   deduction   of   Rs.5.59   Crores   under   Section   80-M   in   respect   of   the   dividend <\/p>\n
    declared and distributed.   The return was accompanied by the audited accounts <\/p>\n
    for   the   year   ending   31st  March,   2003   and   the   tax   audit   report.     The   First <\/p>\n
    Respondent issued a notice on 5th October, 2005 under Section 142(1) to which a <\/p>\n
    questionnaire   was   annexed   seeking   details   of     documents   and   explanations <\/p>\n
    including in relation to the details of expenses relating to the earning of dividend.\n<\/p>\n
    The Petitioner submitted a reply on 6th October, 2005 in justification.\n<\/p>\n
    4.<\/p>\n
                  On   20th  February,   2006   an   order   of   assessment   was   passed   under <\/p>\n
    Section 143(3) by which the total income of the assessee was determined at Rs.\n<\/p>\n
    2.77 Crores and the assessee was allowed a deduction to the extent of Rs.5.31 <\/p>\n
    Crores under Section 80-M.  Of the total dividend received in the amount of Rs.\n<\/p>\n
    5.59   Crores,   the   assessing   officer   made   a   disallowance   of   Rs.27.95   lacs,   thus <\/p>\n
    confining the deduction to an amount of Rs.5.31 Crores as noted above.   The <\/p>\n
    assessee filed an appeal before the CIT(A).   The CIT(A) by an order dated 3rd <\/p>\n
    November, 2006 restricted the disallowance of expenditure incurred for earning <\/p>\n
    dividend   income   upto   2%   of   the   dividend   income.   Both   the   assessee   and   the <\/p>\n
    revenue   carried   the   decision   of   the   CIT(A),   in   appeal   to   the   ITAT.     In   the <\/p>\n
    meantime, the First Respondent passed an order on 17th  October, 2008 to give <\/p>\n
    effect to the order of the CIT(A) by which the disallowance under Section 80-M <\/p>\n
    was restricted to Rs.11.18 lacs as against the original disallowance of Rs.27.95 <\/p>\n
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\n                                                      4<\/span><\/p>\n
    lacs.  The ITAT by its order dated 10 th September, 2009 deleted the disallowance <\/p>\n
    made with regard to the deduction claimed by the Petitioner under Section 80-M <\/p>\n
    of the Act.   Consequently, the Petitioner was held to be entitled to a deduction <\/p>\n
    without any disallowance as had been made in the order of the CIT(A).\n<\/p>\n
    5.             On   28th  March,   2008   a   notice   was   issued   to   the   Petitioner   under <\/p>\n
    Section 148 in which the assessing officer furnished the following reasons for his <\/p>\n
    belief  that the income of the Petitioner chargeable to  tax for  Assessment Year <\/p>\n
    2003-04 has escaped assessment within the meaning of Section 147. The assessee <\/p>\n
    having raised objections, the assessing officer by an order dated 16th  December, <\/p>\n
    2009 rejected the objections inter alia with the following observations:\n<\/p>\n
                   “The contention of the assessee that notice had been issued on a mere
\n                   change of opinion is not correct.  The issues involved as mentioned in <\/p>\n
                   the recorded reasons is that, the assessee claimed deduction u\/s.80M
\n                   of the Act in respect of dividend distributed by the assessee company, <\/p>\n
                   wherein   the   assessee   failed   to   pay   additional   income-tax   as   per
\n                   provisions   of   section   115-O   within   the   stipulated   time.     Since   the
\n                   assessee has not complied the provisions of section 115-O of the Act,
\n                   then the deduction u\/s.80M is not allowable to the assessee.”\n<\/p><\/blockquote>\n
    6.             Counsel appearing on behalf of the assessee has challenged the notice <\/p>\n
    under Section 148 on the following grounds :\n<\/p>\n
         Firstly, it was urged that the assessing officer has no reason to believe that <\/p>\n
         income   had   escaped   assessment.     Under   Section   80-M     the   assessee   was <\/p>\n
         entitled,   in the computation of its total income to a deduction of an amount <\/p>\n
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\n                                                       5<\/span><\/p>\n
       equal to the income received by way of dividends subject to a ceiling of the <\/p>\n
       actual amount of   dividend distributed by the assessee on or before the due <\/p>\n
       date.  The due date under the explanation to Section 80-M will be the date for <\/p>\n
       furnishing   the   return   of   income   under   Section   139(1)   and   would   be   30 th <\/p>\n
       November, 2003.  On the admitted facts,    it was submitted that the assessee <\/p>\n
       had   distributed   both   the   interim   and   final   dividend   before   30th  November, <\/p>\n
       2003, the interim dividend having been distributed on 26th  March, 2003 and <\/p>\n
       the  final  dividend  on 26th  June,  2003.   On this basis, it was urged  that no <\/p>\n
       prudent person could have a reason to believe that the income of the assessee <\/p>\n
       had   escaped   assessment.    Secondly,    it  was  submitted   that  the  order   of  the <\/p>\n
       assessing officer reopening the assessment constitutes an interference with the <\/p>\n
       order of the CIT(A) and the ITAT by which the assessee was held entitled to a <\/p>\n
       deduction in respect of the income received by way of dividend.  Thirdly, it was <\/p>\n
       submitted   that  the   original   order   of  assessment  was in  conformity   with   the <\/p>\n
       decisions of the Tribunal in the case of Silvassa Industries1 and in the case of <\/p>\n
       Kaikobad  Byramjee   &   Sons2  dated   7th  October,   2004.     Learned     counsel <\/p>\n
       submitted that these decisions were followed and affirmed by the Tribunal on <\/p>\n
       18th July, 2007 in its decision in the case of Castle Investment and Industries <\/p>\n
       Pvt. Limited v. ITO3.   Consequently, the order of assessment was consistent <\/p>\n
       with the law laid down by the Tribunal which had not been reversed or set <\/p>\n
    1 Silvassa Industries Pvt. Ltd. v. DCIT as per ITA No.462\/M\/02 decided on 10th May, 2002.\n<\/p><\/blockquote>\n
    2 ITO v. M\/s. Kaikobad Byramjee & Sons Agency Pvt. Ltd. (ITA No.4102\/Mum\/2001).
\n    3 ITA 1713\/Mum\/2006.\n<\/p>\n
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\n                                                     6<\/span><\/p>\n
         aside.  In the circumstances, it was submitted that the assessee was entitled to <\/p>\n
         a deduction under Section 80-M for Assessment Year 2003-04 but this would <\/p>\n
         be restricted to the amount of the dividend declared upto the due date of the <\/p>\n
         filing of the return.\n<\/p>\n
    7.             Counsel   appearing   on   behalf   of   the   revenue   on   the   other   hand <\/p>\n
    submitted   that the assessee had   distributed dividend after the due date of 1 st <\/p>\n
    April, 2003 under Section 115-O and was, therefore, liable to pay additional tax <\/p>\n
    under that provision.  In the circumstances, the reopening of the assessment was <\/p>\n
    valid   and   there   was   reason   to   believe   that   the   income   of   the   assessee   for <\/p>\n
    Assessment Year 2003-04 had escaped assessment.\n<\/p>\n
    8.             Section 80-M was part of the Income Tax Act 1961 during the course <\/p>\n
    of Assessment Year 2003-04.  Section 80-M applies where the gross total income <\/p>\n
    of a domestic company   includes any income by way of dividend from another <\/p>\n
    domestic company during the previous year.   In such a case, in computing the <\/p>\n
    total   income   of   the   domestic   company   which   is   in   receipt   of   dividend   from <\/p>\n
    another company, a deduction is allowable of an amount equal to the income <\/p>\n
    received by way of dividend.   However, Section 80-M imposed a ceiling on the <\/p>\n
    extent of deduction that can be claimed by stipulating that this should not exceed <\/p>\n
    the amount of dividend distributed by the company on or before the due date.\n<\/p>\n
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\n                                                         7<\/span><\/p>\n
    The due date under the  explanation is  the date for the  furnishing of the return <\/p>\n
    of  income  under sub section (1) of Section 139.\n<\/p>\n
    9.             In   the   present   case   the   admitted     facts   are   that   (i)   The   assessee <\/p>\n
    company   had   received   a   dividend   of   Rs.5.59   Crores   during   Assessment   Year <\/p>\n
    2003-04 which was declared in the computation of total income; (ii) The assessee <\/p>\n
    had distributed an interim dividend of Rs.4.48 Crores on 26th March, 2003 and an <\/p>\n
    amount of Rs.1.13 Crores on 26th June, 2003 so as to make a total amount of Rs.\n<\/p>\n
    5.61 Crores approximately; (iii) The due date for the furnishing of the return of <\/p>\n
    income under sub section (1) of Section 139 was 30th November, 2003; (iv) The <\/p>\n
    claim for deduction under Section 80-M was restricted to the amount of dividend <\/p>\n
    distributed by the assessee before the due date and (iv) In appeals leading to the <\/p>\n
    Tribunal from the order of assessment the disallowance made by the assessing <\/p>\n
    officer in respect of the expenditure incurred   in earning the dividend had been <\/p>\n
    deleted   by   the   Tribunal     and   the   assessee   was   held   to   be   entitled     to   a   full <\/p>\n
    deduction   under   Section     80-M,   restricted   to   the   amount   of   the   dividend <\/p>\n
    distributed.   The issue  before the CIT(A) and the Tribunal  related only to the <\/p>\n
    extent of the disallowance of expenditure.\n<\/p>\n
    10.            On   these   facts   as   they   stand,   it   is   impossible   to   contend   that   the <\/p>\n
    assessee was not entitled to a deduction under Section 80-M.   Significantly, the <\/p>\n
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\n                                                      8<\/span><\/p>\n
    view of the assessing officer was consistent with the decision of the Tribunal in <\/p>\n
    the   case   of  Castle   Investment  (supra).     The   judgment   in  Castle   Investment <\/p>\n
    insofar as is material held that Section 115-O(5) does not in any way restrict the <\/p>\n
    allowability   of   the   claim   under   Section   80-M.     Under   Section   80-M   what   is <\/p>\n
    claimed   as   a   deduction   is   the   dividend   received   by   the   company.     Dividends <\/p>\n
    declared, distributed or paid are not claimed as a deduction under Section 80-M <\/p>\n
    though they constitute an out flow of funds from the company.   Section 80-M <\/p>\n
    imposes a monetary restriction on the amount that may be claimed by way of a <\/p>\n
    deduction   by   providing   that   the   amount   of   claim   cannot   exceed   the   dividend <\/p>\n
    distributed by the assessee by the due date.  Though the judgment of the Tribunal <\/p>\n
    in  Castle Investment  was dated 18th  July, 2007 (the order of assessment being <\/p>\n
    dated 28th February, 2006) it is necessary to note that the decision followed the <\/p>\n
    earlier   decision   of   the   Tribunal   dated   10th  May,   2002   in   the   case   of  Silvassa <\/p>\n
    Industries and the decision dated 7th October, 2004 in M\/s. Kaikobad Byramjee <\/p>\n
    (supra).  The decision of the Tribunal in Castle Investment (supra) was affirmed <\/p>\n
    by a Division Bench of this Court on 22nd July, 2008 in ITA 1557 of 2007.\n<\/p>\n
    11.           The provisions of Section 147 of the Act empower the assessing officer <\/p>\n
    to reopen an assessment or issue a notice for reassessment provided that he has <\/p>\n
    reason   to   believe   that   income   has   escaped   assessment.     In   a   judgment   of   a <\/p>\n
    Division Bench of this Court in German Remedies v. Deputy Commissioner of <\/p>\n
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\n                                                     9<\/span><\/p>\n
    Income Tax4 delivered by one of us, Shri Justice J.P. Devadhar,  this Court held <\/p>\n
    that though the power to reopen a concluded assessment under Section 147 is <\/p>\n
    wide, the power cannot be exercised mechanically  or arbitrarily.  This  Court held <\/p>\n
    that even after the introduction of the concept of deemed escapement of income <\/p>\n
    by explanation 2 to Section 147 with effect from 1st  April, 1989 the belief that <\/p>\n
    income had escaped assessment must be a prudent belief and not a mere change <\/p>\n
    of   opinion.     This   Court   held   that   an   assessment   order   passed   after   detailed <\/p>\n
    discussion cannot be reopened within a period of four years from the end of the <\/p>\n
    relevant assessment year unless the assessing officer has reason to believe that <\/p>\n
    due to some inherent defect in the assessment the income chargeable to tax has <\/p>\n
    been under assessed or assessed to a lower rate or excessive relief is granted or <\/p>\n
    excessive loss or depreciation allowance or any other allowance under the Act has <\/p>\n
    been computed.   In the subsequent judgment of the Supreme Court in  CIT   v.\n<\/p>\n
    Kelvinator of India Ltd.5  the Supreme Court has held that wide as the power <\/p>\n
    under Section 147 is after 1st April, 1989 a mere change of opinion cannot justify <\/p>\n
    the reopening of an assessment and there must be tangible material before the <\/p>\n
    assessing officer before he proceeds to exercise his powers under Section 147.   In <\/p>\n
    the judgment of this Court in  German Remedies  this Court, while setting aside <\/p>\n
    the exercise of the power, adverted to the circumstance that the  very same issue <\/p>\n
    which was sought to be agitated by the assessing officer had been concluded by a <\/p>\n
    4 (2006) 285 ITR 26 (Bom).\n<\/p>\n
    5 (2010) 320 ITR 561 (SC).\n<\/p>\n
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\n                                                     10<\/span><\/p>\n
    judgment of the Tribunal for an earlier assessment year.  This Court deplored the <\/p>\n
    conduct of the assessing officer in refusing to follow a binding decision of the <\/p>\n
    Tribunal.  The same view has been reiterated in the judgment of a Division Bench <\/p>\n
    of   this   Court   in  Asteroids   Trading   and   Investments   P.   Ltd.   v.   Deputy <\/p>\n
    Commissioner of Income Tax6.\n<\/p>\n
    12.           The   assessing   officer,   in   his   reasons   for   reopening   the   assessment <\/p>\n
    adverts to the circumstance that the assessee paid  dividend tax after  1 st  April, <\/p>\n
    2003 under Section 115-O.  It is on this basis that the inference is drawn that the <\/p>\n
    assessee has forfeited the right to claim a deduction under Section 80-M.   The <\/p>\n
    reasons which have been recorded by the assessing officer are ex facie extraneous <\/p>\n
    to the question as to whether the assessee would be entitled to a deduction under <\/p>\n
    Section 80-M.   Section 80-M, it may be noted, forms a part of the provisions of <\/p>\n
    Chapter VI-A of the Income Tax Act, 1961.  Chapter VI-A is distributed in several <\/p>\n
    parts.  Part A deals with the general provisions and consists of  Sections 80-A and <\/p>\n
    80-B.     Part   B   deals   with     deductions   with   respect   to     certain  payments  and <\/p>\n
    comprises   of     Section   80-C   to   80-GGC.     Part   C   of   Chapter   VI-A   provides   for <\/p>\n
    deductions in respect of certain incomes.  Section 80-M as it then stood during the <\/p>\n
    course   of  assessment  year   2003-04  formed   a   part  of     Part  C   of   Chapter   VI-A.\n<\/p>\n
    Under Section 80-M the deduction is not in respect of the amount declared or <\/p>\n
    distributed by way of dividend.  The deduction that was stipulated under Section <\/p>\n
    6 [2009] 308 ITR 190 (Bom).\n<\/p>\n
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\n                                                    11<\/span><\/p>\n
    80-M was in respect of dividend received by a domestic company from another <\/p>\n
    domestic   company.     The   extent   of   the   deduction   was,   however,   subject   to   a <\/p>\n
    monetary   ceiling,   the   ceiling   being   that   the   deduction   should   not   exceed   the <\/p>\n
    amount distributed by  way of dividend on or before the due date for the filing of <\/p>\n
    a return.   The assessing officer by adverting to the provisions of Section   115-O <\/p>\n
    has proceeded to reopen the assessment on a plainly extraneous ground.\n<\/p>\n
    13.           For the  aforesaid  reasons, the assessing  officer  has clearly acted  in <\/p>\n
    excess of the  restraints on his jurisdiction to reopen an assessment in exercise of <\/p>\n
    the powers under Section 147 read with Section 148.   The assessee would be <\/p>\n
    entitled to succeed in these proceedings.   Rule is accordingly made absolute by <\/p>\n
    setting aside the notice dated 28th March, 2008.  In the circumstances of the case, <\/p>\n
    there shall be no order as to costs.\n<\/p>\n
                                                     (Dr. D.Y.Chandrachud, J.)<\/p>\n
                                                            (J.P. Devadhar, J.)<\/p>\n
                                                                        ::: Downloaded on – 09\/06\/2013 15:36:10 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Godrej Agrovet Limited vs The Deputy Commissioner Of Income … on 11 February, 2010 Bench: Dr. D.Y. Chandrachud, J.P. Devadhar 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. WRIT PETITION NO.200 OF 2010 Godrej Agrovet Limited ..Petitioner. Vs. The Deputy Commissioner of Income Tax, 10(2), Mumbai and […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-135206","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nGodrej Agrovet Limited vs The Deputy Commissioner Of Income ... on 11 February, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/godrej-agrovet-limited-vs-the-deputy-commissioner-of-income-on-11-february-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Godrej Agrovet Limited vs The Deputy Commissioner Of Income ... on 11 February, 2010 - 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