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2015 (10) TMI 2418 - AT - Income TaxAddition representing forefeiture of warrants u/s. 28(iv) - Held that - An identical issue was considered in M/s. Graviss Hospitality Ltd. case 2014 (12) TMI 139 - ITAT MUMBAI wherein on identical set of facts the Tribunal has held that the amount of forefeited share application money transferred to warrant forefeiture account in the capital reserve is a capital receipt only and cannot be taxed as income of the assessee either u/s. 28(iv) or u/s. 41(1) of the Act. We find that while deciding this issue the Tribunal has considered the decision of T.V. Sundaram Iyengar & Sons 1996 (9) TMI 1 - SUPREME Court - Decided in favour of assessee. Addition made u/s.14A - CIT(A) deleted the addition - Held that - We find that the facts are identical to the facts considered in earlier assessment years. We therefore direct the AO to recompute the average investments in the line of A.Yrs. 2005-06 & 2006-07. We therefore do not find any error/infirmity in the findings of the Ld. CIT(A) - Decided in favour of assessee. Disallowance of depreciation in respect of portion of value shown in the books which represented over invoicing of assets as detected during the course of survey - Held that - disallowance of depreciation made by the AO is not sustainable in law. This decision of the Tribunal was followed in A.Y. 2007-08 - Decided in favour of assessee.
Issues:
1. Deletion of addition representing forefeiture of warrants u/s. 28(iv) of the Act. 2. Deletion of addition made u/s.14A of the Act. 3. Deletion of disallowance of depreciation due to over invoicing of assets. Issue 1 - Deletion of addition representing forefeiture of warrants u/s. 28(iv) of the Act: The appeal by the Revenue challenged the deletion of the addition of Rs. 6,05,86,500 representing forefeiture of warrants u/s. 28(iv) of the Act. The Assessing Officer treated this amount as income of the assessee, but the Ld. CIT(A) disagreed. The Ld. CIT(A) held that the forefeiture of application money on warrants is a capital receipt and not chargeable to tax u/s. 28(iv) of the Act. The Tribunal, in a similar case, had previously ruled that forefeited share application money is a capital receipt and cannot be taxed as income. Therefore, the Tribunal confirmed the findings of the Ld. CIT(A) and dismissed the appeal. Issue 2 - Deletion of addition made u/s.14A of the Act: The AO disallowed expenses related to dividends under u/s.14A as the assessee had made substantial investments. The Ld. CIT(A) held that the investments were made out of own capital and funds, relying on earlier decisions. The Ld. CIT(A) directed the AO to recompute the average investments, concluding that no disallowance of interest u/s. 14A was warranted. The Tribunal found no error in the Ld. CIT(A)'s decision, dismissing the appeal on this ground. Issue 3 - Deletion of disallowance of depreciation due to over invoicing of assets: The Ld. Counsel for the assessee cited previous Tribunal decisions in the assessee's favor regarding the over invoicing of assets. The Tribunal had ruled in the assessee's favor in earlier years, and the Ld. DR agreed. Following the precedent set by the Tribunal in similar cases, the Tribunal declined to interfere with the Ld. CIT(A)'s decision to delete the disallowance of depreciation. Thus, the appeal on this ground was dismissed. In conclusion, the Tribunal upheld the Ld. CIT(A)'s decisions on all three issues, dismissing the Revenue's appeal in its entirety.
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