2013 (5) TMI 443 - AT - Income Tax

Disallowance of interest, DEMAT charges, Membership Subscription out of short term capital gain - Held that - AO & CIT(A) s conclusions were derived in the context of the assessee s failure to submit the details establishing the nexus of the interest expenditure qua the capital used for purchase of the shares. Thus, it is evident that the Revenue Authorities have given their finding without going into the merit of the issue and the connection of the impugned expenditure qua the capital gains claimed by the assessee. It is, thus the disallowance so made by the AO is pre-mature, which requires one more round of examination of the facts by the AO. Considering the request of the assessee s Counsel to remand the issue to the files of the AO for fresh adjudication - grounds raised by the assessee are partly allowed for statistical purposes.

Summary

Issues:
1. Disallowance of interest, DEMAT charges, and Membership Subscription from short term capital gains.
2. Failure to issue a show cause notice before disallowing expenses.

Issue 1: Disallowance of Expenses
The appellant challenged the disallowance of interest, DEMAT charges, and Membership Subscription totaling Rs. 14,70,224 from short term capital gains. The AO disallowed the claim as the assessee failed to provide details justifying the set off against capital gains. The CIT (A) upheld the disallowance, leading to the appeal. The Tribunal noted that the Revenue Authorities did not consider that interest paid for share purchase is part of the cost of acquisition and thus deductible. As there was no evidence of examining this aspect, the Tribunal remanded the issue back to the AO for fresh consideration, following a similar decision in a related case. The Tribunal found the disallowance premature due to lack of examination of the nexus between the expenditure and capital gains, thus partly allowing the appeal for statistical purposes.

Issue 2: Failure to Issue Show Cause Notice
The appellant contended that the ACIT did not issue a show cause notice before disallowing the expenses. The Tribunal did not delve into this issue as the expenses related to interest were the primary focus. The failure to issue a show cause notice did not impact the final decision, as the Tribunal's ruling primarily addressed the disallowance of interest expenses. The issue of the show cause notice was not a deciding factor in the judgment.

In conclusion, the Tribunal partially allowed the appeal, remanding the disallowance of interest expenses back to the AO for re-examination. The failure to issue a show cause notice did not significantly impact the overall decision, as the focus was on the treatment of interest expenses in relation to short term capital gains.