2014 (1) TMI 1353 - AT - Income Tax

Recalculation of disallowance u/s 14A of the Act r.w. Rule 8D(ii) of the Rules ordered Held that - while making the disallowance u/s.14A of the Act, AO had not recorded the reasons for invoking the provisions of Rule 8D(ii) of the Rules also, he did not consider the net interest amount if interest has been paid and received for the same transaction then only net amount of interest has to be considered for apportionment - AO cannot ignore the interest paid/received while making disallowance under section 14A r.w Rule 8D Relying upon The Morgan Stanley India Securities Ltd. 2014 (1) TMI 1260 - ITAT MUMBAI - there could be no dispute that since the amount of interest debited to the Profit & Loss Account as on net basis the disallowance of interest should also be made only with reference to the net interest. Disallowance of expenses u/s 37(1) of the Act - Transaction charges and turnover fees Held that - FAA should have not admitted the bifurcation given by the assessee, without obtaining a report from the AO - FAA, a senior officer of the hierarchy of the department is supposed to follow the rules prescribed by the Act - He can direct the AO to submit a remand report or make further inquiries and AO is bound to follow his instructions - AO has specifically taken a ground about not given him an opportunity to verify the claim made for the first time before the FAA - Whatever was the basis of calculation of disallowance it should have been forwarded to the AO, because the AO is the appropriate authority to look in the pieces of evidences - FAA is entitled to admit new evidences and decide the matter without referring to the AO but those are extra ordinary situations the matter remitted back to the AO for fresh adjudication Decided partly in favour of Assessee.

Summary

Issues:
1. Disallowance under section 14A of the Income Tax Act.
2. Disallowance of expenses under section 37(1) of the Act.

Issue 1: Disallowance under section 14A of the Income Tax Act:
The Assessing Officer (AO) challenged the order of the CIT(A) directing the recalculation of the disallowance under section 14A of the Income Tax Act. The AO calculated the disallowance based on Rule 8D(ii) without considering the net interest amount. The First Appellate Authority (FAA) upheld the AO's decision, stating that Rule 8D was rightly invoked, and only net interest should be considered for disallowance. The FAA relied on previous tribunal orders and directed the AO to verify the net interest figure. The tribunal found that the AO failed to consider the net interest amount while making the disallowance. It emphasized that only the net amount of interest should be considered for apportionment under section 14A. Relying on precedent cases, the tribunal decided against the AO, stating that interest paid and received should be considered together for disallowance purposes.

Issue 2: Disallowance of expenses under section 37(1) of the Act:
The AO disallowed expenses claimed under section 37(1) of the Act, related to transaction charges, Stock Exchange Stamp Duty, and SEBI Turnover fees. The FAA allowed a partial relief of Rs. 4.22 lacs to the assessee after considering the details provided. The tribunal noted that the assessee admitted that a portion of the expenditure was not wholly for business purposes. The FAA accepted the bifurcation given by the assessee without obtaining a report from the AO. The tribunal disagreed with this approach, stating that the FAA should have sought a remand report before accepting the bifurcation. The tribunal found that the FAA should have given the AO an opportunity to verify the claim made before him. Therefore, the tribunal allowed ground no. 2 in part in favor of the AO, directing the matter to be restored back to the AO for fresh adjudication.

In conclusion, the tribunal partly allowed the appeal filed by the AO, emphasizing the importance of considering net interest for disallowance under section 14A and the necessity for proper verification and documentation of expenses under section 37(1) of the Act.