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2015 (7) TMI 798 - ITAT MUMBAIComputation of income from House property - whether on the basis of standard rent / municipal value where as both the properties at Ghatkopar, Mumbai and Deolali, Nasik are not governed by Rent Control Act and no standard rent has been fixed for these properties by any Controller as directed by CIT(A) - Held that:- AO had determined the ALV without any basis.The FAA has given a categorical finding in that regard and has held that no investigation had been done to ascertain the actual fair rent of the property.The FAA has relied upon the judgment of Hon’ble Apex Court delivered in the case of Sheila Kaushik (1981 (8) TMI 1 - SUPREME Court).She has also referred to the decisions of the Tribunal in the cases of Ashwin Adekar [2008 (7) TMI 616 - ITAT MUMBAI] and Park Paper Industries Ltd.(2008 (8) TMI 599 - ITAT MUMBAI ).We find that in the case of Sheila Kaushik the issue has been decided in favour of the assessee and it has been held that in case of the properties not let out ALV had to be based on standard rent.The decisions of the Tribunal relied upon by the FAA support the decision of the FAA.Therefore,we are of the opinion that her order does not suffer from any legal infirmity.Upholding her order, - Decided against revenue. Share transactions - CIT(A) giving direction that wherever assessee has held shares for more than one month that may be treated as short term capital gain and if the holding period is less than one month then it should be treated as business income - Held that:- As decided in assess's own case [2011 (11) TMI 452 - ITAT MUMBAI] if the Department has accepted that some of the shares were purchased and held by the assessee as investment allowing the claim of the assessee for long term capital gain arising from sale thereof, there is no justification for them to contend that the assessee had purchased and held other shares as stock in trade merely because they were sold within a period of one year especially when other facts relevant thereto are almost similar. Further, intention of the assessee at the time of purchase of shares is relevant. See Gopal Purohit (2010 (1) TMI 7 - BOMBAY HIGH COURT ). - Decided in favour of assessee. Deletion of proportionate expenses - assessee has claimed all expenses against short term capital gain only and not a single rupee was attributed to Long Term Capital Gain which is claimed exempt U/s.10(38) of the Act. - Held that:- AO had made proportionate disallowance assuming that the expenses claimed to have been incurred against the SRCG were indirectly attributable to LTCG also. But he has not explained as to what was the basis for arriving at the above conclusions. The AO had without making any enquiry about the nature of expenses and the number of transactions of LTCG made an addition of ₹ 8,61,667/- . We find that the FAA had deleted the disallowance as she was of the opinion that adhoc disallowance should not be made.In our opinion, considering the facts and circumstances of the case the order of the FAA does not suffer from any legal infirmity.- Decided in favour of assessee. Disallowance u/s 14A - CIT(A) giving direction to re-examine and compute 14A disallowance - Held that:- AO had invoked the provisions of Rule 8D, the AY under appeal is 2007-08, that as per Hon’ble Jurisdictional High Court in Godrej & Boyce Manufacturing Company Ltd. Vs. DCIT (2010 (8) TMI 77 - BOMBAY HIGH COURT) Rule 8D was not applicable for the year under consideration. Therefore,in our opinion the AO was not correct in applying Rule 8D. Secondly, the FAA has restored back the matter to the file of the AO to re-examine the issue. In our opinion the interest of Revenue was not adversely affected by the direction of the FAA. In our opinion there is no need to interfere with her order- Decided in favour of assessee.
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