2015 (1) TMI 298 - AT - Income Tax

Disallowance u/s.14A Held that - The validity or otherwise of the assessee s claim of the expenditure incurred by it in relation to income not forming part of the total income, which is limited to direct expenditure of ₹ 1.52 lacs, is under law to be with reference to the assessee s accounts - if the assessee s accounts are not maintained activity-wise, it would presumably bear expenditure incurred both in relation to incomes forming part of, and not so, of the total income, so that that incurred, commonly for the latter, would require being estimated - an estimation toward expenditure, therefore, would have to be made, and for which the prescription of rule 8D would have to be followed - the estimation mandated by law does not provide any exception in the matter, i.e., in estimating the expenditure, which is essentially a matter of fact, so that it would in fact vary with each fact situation and, perhaps, from year to year even from the same assessee the matter is remitted back to the CIT(A) to decide the same in accordance with the law Decided in favour of assessee. Non-allowance of the set off of the LTCL against the LTCG Held that - The loss for AY 2005-06 has not been accepted by the Revenue, so that it is in appeal before the tribunal - There is as such no question of it being allowed carry forward of the same for set off against the income for the subsequent years, which could only be in terms of the specific provision of law, i.e., section 74, falling under Chapter VI of the Act - The assessee s plea of being in appeal for A.Y. 2005-06 is though not without merit - But that by itself would not give rise for a claim for the current year inas-much as the relevant order is only that for A.Y. 2005-06, i.e., as modified by the appellate order (by the first appellate authority) for that year, which continues to be the operative order/s. Depreciation on leased premises disallowed - Held that - The decision in Assistant Commissioner of Income-tax Versus Rishiroop Polymers P. Ltd. 2005 (9) TMI 587 - ITAT MUMBAI would apply in the facts and circumstances of the case - the discarding of the asset has to be in the year other than the previous year in which the asset is first brought to use - the asset has not been brought to use in any earlier year - there is no question of the same being allowed with reference to the provision - there being no user in any earlier year, the same does not qualify to be depreciable asset, for the provision of section 32(1)(iii) to apply, i.e., on it being sold, discarded, destroyed, etc.- Decided partly in favour of assessee.

Summary

Issues:
1. Disallowance u/s.14A
2. Non-allowance of set off of long term capital loss
3. Disallowance of depreciation claim on a 'leased premises'

Issue 1: Disallowance u/s.14A
The appeal contested the assessment u/s.143(3) for A.Y. 2008-09, focusing on disallowance u/s.14A. The Assessing Officer observed dividend income and LTCG claimed as tax-exempt. The assessee disallowed a sum u/s.14A, but the accounts lacked correspondence between expenses and exempt income. Rule 8D was applied to estimate indirect expenditure. The assessee argued no expenditure was incurred related to non-total income, citing the absence of portfolio management fees. The disallowance was upheld by the CIT(A) based on composite accounts. The tribunal noted the need for estimation under rule 8D and remanded the matter for further examination by the CIT(A).

Issue 2: Non-allowance of set off of long term capital loss
The dispute involved the disallowance of set off of long term capital loss for A.Y. 2005-06 against current year LTCG. The Revenue rejected the claim, pending appeal before the tribunal. The tribunal ruled that without acceptance of the loss for A.Y. 2005-06, no carry forward for set off was permissible against subsequent years' income. The appeal was dismissed based on the current operative order for A.Y. 2005-06.

Issue 3: Disallowance of depreciation claim on a 'leased premises'
The final issue pertained to disallowance of depreciation on a 'leased premises' due to property vacation. The tribunal referenced precedents to establish the necessity of ownership and usage for depreciation claims. The assessee's claim for depreciation on the vacated asset was denied as it did not satisfy the usage condition. The tribunal disagreed with the CIT(A)'s rejection of the entire expenditure claim, suggesting a need for further details examination. However, the tribunal found no basis for the claim under section 32(1)(iii) due to non-usage in any previous year, leading to the dismissal of the appeal.

In conclusion, the tribunal partly allowed the assessee's appeal for statistical purposes, addressing each issue comprehensively and providing legal interpretations based on relevant precedents and statutory provisions.