TMI Blog2016 (12) TMI 1701X X X X Extracts X X X X X X X X Extracts X X X X ..... le 8D(2) of the Rules. We agree with the said decision of the CIT (A) on this issue and therefore, the conclusions drawn by the CIT (A) are upheld. Further, Ld Counsel for the assessee submitted that for computing the average investment, the investment in stock-in-trade should excluded for the purpose of quantifying the disallowance which are required to be made under clauses (ii) and (iii) of Rule 8D(2) of the Rules. In this regard, Ld Counsel for the assessee relied on the judgment of the CIT vs. India Advantage Securities Ltd [2015 (6) TMI 140 - BOMBAY HIGH COURT]. After hearing both the parties, we find, the order of the CIT (A) on this issue is fair and reasonable Allowability of the provision of mark-to-market loss confirmed Disallowance u/s 14A read with Rule 8D(2) - Held that:- No disallowance under clause (ii) is needed if the own funds are more than the investment. Considering the same, we agree with the conclusions drawn by the CIT (A) on this issue. Similarly, referring to the relief granted by the CIT (A) in excluding the investments in stock-in-trade for the purpose of disallowance under Rule 8D(2)(ii) and (iii) of the Rules, after hearing Representatives of bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Rule is undisputed. However, it is a settled legal proposition at our level that the average investment desires exclusion of the non-dividend yielding investments in view of the decisions in the cases of (i) ACB India Limited vs. DCIT in ITA No. 615/2014 (Del. HC); (ii) M/s. Edelwiess Securities Limited vs. DCIT [ITA No. 7235/M/2011]; (iii) Coal India Limited [ITA No. 1032/Kol/2012]. Therefore, in our opinion, the assessee is entitled to relief on this argument. Accordingly, the relevant grounds raised by the assessee are required to be allowed in principle. We order accordingly and direct the AO to re-calculate the disallowance under Rule 8D(2)(iii) of the Rules. Thus, grounds raised by the assessee are allowed. 6. In the result, appeal of the assessee is allowed. 7. In the cross appeal (ITA No.7658/M/2011), the Revenue raised various issues. The first issue raised in this appeal relates to the disallowance u/s 8D(2)(ii) of the Rules. Bringing our attention to the chart filed in this regard, Ld Counsel for the assessee submitted that the CIT (A) granted relief on the issue of applicability of clause (ii) of Rule 8D(2) relating to interest disallowance. In this regard, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 20.12.2012 for the assessment year 2009-2010. In this appeal, Revenue raised 4 grounds in toto. 12. At the outset, Ld Counsel for the assessee brought our attention to the issue raised in Ground no.1 and mentioned that the ground relates to the decision of the CIT (A) on the allowability of the provisions for mark-to-market loss. This issue is identical to the Ground no.3 of the Revenue s appeal ITA No.7658/M/2011 for the AY 2008-2009, which is adjudicated in the above paras of this order. Considering the commonality of the issue, in our view, consistent to the above, the ground raised by the Revenue is required to be dismissed. We order accordingly. Thus, Ground no.1 raised by the Revenue is dismissed. 13. The issue raised in Grounds no.2 to 4 of this appeal relates to the disallowance u/s 14A read with Rule 8D(2) of the Act. Revenue is aggrieved with the relief granted by the CIT (A) considering the applicability of the clauses (ii) and (iii) of Rule 8D(2) of the Rules. In the first appellate proceedings, CIT (A) granted relief to the assessee in respect of the addition made in clause (ii) of Rule 8D(2) of the Rules, relying on the binding judgment of the Hon ble juri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordingly. 17. In the result, appeal of the assessee is allowed protanto. 18. In the Revenue s appeal (ITA No.4651/M/2014), the only issue raised relates to the decision of the CIT (A) in deleting the addition made by disallowing mark-to-market loss claimed by the assessee. This issue is identical to that of the ones raised by the Revenue vide Ground no.3 of its appeal ITA No.7658/M/2011 for the AY 2008-2009. While adjudicating the ground, we upheld the decision of the CIT (A), who relied on the binding judgments while granting relief to the assessee. Considering the commonality of the issue, our decision given therein squarely applies to the instant appeal too. Accordingly, we upheld the decision of the CIT (A) on the issue and grounds raised by the Revenue are dismissed. 19. In the result, appeal of the Revenue is dismissed. IV. Cross Appeals for the AY 2008-2009 (In the case of Edelweiss Commodities Ltd) ITA No.6611/M/2011 (By Assessee) ITA No.7662/M/2011 (By Revenue) 20. Both these cross appeals are filed against the order of the CIT (A)-7, Mumbai dated 7.7.2011. 21. In the assessee s appeal (ITA No.6611/M/2011), the only issue raised relate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue on 6.3.2013 is against the order of the CIT (A)-6, Mumbai dated 20.12.2012 for the assessment year 2009-2010. In this appeal, Revenue raised 4 grounds in toto. 28. Ground no.1 relates to the decision of the CIT (A) on the allowability of the provisions for mark-to-market loss. This issue is identical to the Ground no.3 of the Revenue s appeal ITA No.7658/M/2011 for the AY 2008-2009, which is adjudicated in the above paras of this order. Considering the commonality of the issue, in our view, consistent to the above, the ground raised by the Revenue is required to be dismissed. We order accordingly. Thus, Ground no.1 raised by the Revenue is dismissed. 29. The issue raised in Grounds no.2 to 4 of this appeal relates to the disallowance u/s 14A read with Rule 8D(2) of the Act. This issue is identical to that of the ones decided by us while adjudicating the Revenue s appeal ITA NO. 1791/M/2013 (AY 2009-2010) in the above paras of this order. Considering the commonality of the issues, our decision given therein squarely applies to the instant grounds too. Considering the same, the issue raised by the Revenue in Grounds no.2 to 4 are dismissed. 30. In result, appeal of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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