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2010 (12) TMI 821 - AT - Income TaxDisallowance - Claim for rebate u/s 88E - Securities Transaction Tax - The additional evidence filed by the assessee involved voluminous details and documents running into 226 pages and the same was required to be verified from the books of account of the assessee, we are of the view that the opportunity afforded by the ld. CIT(A) to verify the additional evidence cannot be regarded as sufficient and proper - A.O. in the facts and circumstances of the case deserves one more opportunity to verify the claim of the assessee for rebate u/s 88E from the details furnished by the assessee before the ld. CIT(A) for the first time as well as the books of account maintained by the assessee - Therefore, set aside the impugned order of the ld. CIT(A) on this issue and restore the matter back to the file of the A.O. with a direction to decide the same in the light of details and documents furnished by the assessee after necessary verification - Hence, Revenue s appeal are accordingly treated as allowed for statistical purpose. Under section 40(a)(ia) - Payments to jobbers/arbitragers - order of the ld. CIT(A) deleting the addition made by the A.O. u/s 40(a)(ia) on account of payments made by the assessee to jobbers/arbitragers sustained - Decided in favour of assessee. Under section 40(a)(ia) - V. SAT, Leaseline and transaction charges paid to stock exchange - This issue is squarely covered in favour of the assessee in the case of Kotak Securities Ltd.vs. ACIT (2011 -TMI - 206641 - Bombay High Court). relied upon by the ld. CIT(A) wherein it was held that stock exchanges do not render any managerial or technical services to its members in lieu of the payment of transaction charges etc. and since such payments are made by the member brokers mainly for the facilities provided by the stock exchange, the provisions of section 194J are not applicable so as to make the brokers liable to deduct tax at source from the said payment - It was also held that the provisions of section 40a(ia) thus are not attracted so as to make any disallowance on account of such charges - Decided in favour of assessee.
Issues Involved:
1. Disallowance of Keyman Insurance Premium. 2. Disallowance of Penalty Paid to Stock Exchange. 3. Disallowance of Admission Fees Paid to Stock Exchange. 4. Disallowance of Salary Paid to Relatives of Directors under Section 40A(2)(b). 5. Assessee's Claim for Rebate under Section 88E. 6. Addition under Section 40(a)(ia) for Payments to Jobbers/Arbitragers. 7. Disallowance under Section 40(a)(ia) for V. SAT, Leaseline, and Transaction Charges Paid to Stock Exchange. Issue-wise Detailed Analysis: 1. Disallowance of Keyman Insurance Premium: The assessee's ground relating to the disallowance of Keyman insurance premium was dismissed as not pressed by the learned counsel for the assessee. 2. Disallowance of Penalty Paid to Stock Exchange: The Tribunal noted that the issue of disallowance of penalty paid to the stock exchange was covered in favor of the assessee by several decisions, including the case of ITO vs. GDB Share and Stock Broking Services Ltd. It was held that such penalties were not in the nature of infringement of any law as envisaged in Explanation to Section 37 and were allowable as business expenses. The Tribunal deleted the disallowance made by the A.O. and confirmed by the CIT(A). 3. Disallowance of Admission Fees Paid to Stock Exchange: The Tribunal observed that the issue of disallowance of admission fees paid to the stock exchange was covered in favor of the assessee by judicial pronouncements, including the decision of the Hon'ble Delhi High Court in Nesel Holdings P. Ltd. vs. CIT. It was held that such payments did not result in an enduring benefit and were allowable as revenue expenditure. The Tribunal deleted the disallowance made by the A.O. and confirmed by the CIT(A). 4. Disallowance of Salary Paid to Relatives of Directors under Section 40A(2)(b): The A.O. disallowed the salary paid to relatives of directors on the ground that the assessee could not satisfactorily establish the services rendered by them. The CIT(A) confirmed the disallowance. The Tribunal, however, noted that the salary paid to the same relatives in subsequent years was allowed by the A.O. after verification. The Tribunal remanded the matter back to the A.O. for verification of this aspect and directed to decide the issue afresh. 5. Assessee's Claim for Rebate under Section 88E: The A.O. had reduced the rebate claimed by the assessee under Section 88E due to the lack of justification for allocation of expenses. The CIT(A) allowed the rebate based on additional evidence filed by the assessee. The Tribunal observed that the A.O. did not get sufficient opportunity to verify the additional evidence and remanded the matter back to the A.O. with a direction to verify the details and decide the issue afresh. 6. Addition under Section 40(a)(ia) for Payments to Jobbers/Arbitragers: The A.O. disallowed payments made to jobbers/arbitragers for failure to deduct tax at source under Section 194C. The CIT(A) deleted the disallowance, holding that the transactions were on a principal-to-principal basis. The Tribunal upheld the CIT(A)'s order, noting that a similar issue was decided in favor of the assessee by the co-ordinate Bench in the case of DCIT vs. Asset Alliance Securities Pvt. Ltd. The Tribunal concluded that the provisions of Section 194C were not applicable. 7. Disallowance under Section 40(a)(ia) for V. SAT, Leaseline, and Transaction Charges Paid to Stock Exchange: The A.O. disallowed these charges under Section 40(a)(ia) for non-deduction of tax at source under Section 194J. The CIT(A) deleted the disallowance, relying on the decision of the Mumbai Bench of ITAT in Kotak Securities Ltd. vs. ACIT. The Tribunal upheld the CIT(A)'s order, noting that the issue was covered in favor of the assessee by the decision in Kotak Securities Ltd., where it was held that the charges were not for technical services and hence, not liable for TDS under Section 194J. Conclusion: The appeal of the assessee was partly allowed, and the appeal of the Revenue was partly allowed for statistical purposes.
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