2015 (11) TMI 1261 - AT - Income Tax

Loss incurred in share dealing - CIT(A) allowed the set off against income from brokerage and commission - Held that - As per the exception in Explanation to Section 73, if more than 50% of the Gross Total Income of the assessee consists of income chargeable under Four heads excluding income from business, then the provisions of Explanation to section 73 are not applicable. There is no infirmity in the order of CIT (A) on this aspect because the same is in line with the judgment of Hon ble Allahabad High Court rendered in the case of Narain Properties Ltd. (2012 (6) TMI 38 - ALLAHABAD HIGH COURT). Thereafter, he has given a finding of fact that income from Brokerage and Commission in the present case is income from other sources and it is more than loss incurred in share dealing. Under these facts, he held that the provisions of Explanation to section 73 are not applicable in the present case. - Decided against revenue Ad hoc disallowance of Repairs & maintenance & Power & Fuel Expenses - CIT(A) restricted part addition - Held that - as against the estimation of the A.O. that expenses of ₹ 2 Lacs under each of these two heads are not verifiable because ₹ 5 Lacs and ₹ 12 lacs are incurred in cash, the estimate of the learned CIT (A) is this that disallowance of ₹ 50,000/- under each head is reasonable. In our considered opinion, in the facts of the present case, the estimation of the AO is excessive and that of CIT (A) is reasonable and hence, on this issue also, we find no reason to interfere in the order of CIT (A). - Decided against revenue

Summary

Issues Involved:
1. Relief allowed by CIT (A) regarding set off of loss in share dealing against income from brokerage and commission.
2. Ad hoc disallowance of expenses by AO and subsequent modification by CIT (A).

Analysis:

Issue 1: Relief allowed by CIT (A) regarding set off of loss in share dealing against income from brokerage and commission:
The primary contention in this issue revolved around the relief granted by the CIT (A) concerning the set off of a loss incurred in share dealing against income from brokerage and commission. The revenue raised concerns about this relief granted by the CIT (A). The ITAT examined the arguments presented by both the revenue and the assessee. The ITAT acknowledged the CIT (A)'s decision, which was based on the exception in Explanation to Section 73. The ITAT noted that the CIT (A)'s decision was in line with the judgment of the Hon'ble Allahabad High Court in the case of Narain Properties Ltd. The ITAT further analyzed that the income from Brokerage and Commission was categorized as income from other sources and exceeded the loss incurred in share dealing. Consequently, the ITAT upheld the CIT (A)'s decision on this issue, finding no fault in the CIT (A)'s order.

Issue 2: Ad hoc disallowance of expenses by AO and subsequent modification by CIT (A):
The second issue pertained to the ad hoc disallowance of expenses made by the AO, which was later modified by the CIT (A). The AO had initially disallowed expenses of Rs. 2 lakhs under each of the heads of Repairs & Maintenance and Power & Fuel Expenses, citing lack of verifiability due to cash transactions. However, the CIT (A) reduced the disallowance to Rs. 50,000 under each head, deeming it a reasonable estimation. The ITAT reviewed the estimations made by both the AO and the CIT (A) and concluded that the AO's estimation was excessive, while the CIT (A)'s modification was deemed reasonable in the context of the case. Consequently, the ITAT found no grounds to interfere with the CIT (A)'s order on this issue.

In the final verdict, the ITAT dismissed the appeal of the revenue. Additionally, the ITAT dismissed the C.O. filed by the assessee as it merely supported the order of the CIT (A), which had already been upheld. Therefore, both the appeal of the revenue and the C.O. of the assessee were dismissed by the ITAT, affirming the decisions made by the CIT (A) in the case.