2021 (10) TMI 913 - AT - Income Tax

Disallowance u/s 14A r.w.r. 8D - HELD THAT - Naturally the disallowance cannot exceed the expenditure incurred and claimed by the assessee as deductible expenditure. No other arguments are advanced and, therefore, we direct the ld. Assessing Officer to restrict the disallowance made by the ld. Assessing Officer and confirmed by the ld. CIT (Appeals) of ₹ 5,27,095/- to only ₹ 48,280/-. Accordingly, ground No. 2 of the appeal is partly allowed. Unexplained investment u/s 69 - HELD THAT - As assessee did not file any confirmation of the party from whom the shares were received, what is the object of obtaining loan from a party, what is the relationship of the security lender with the assessee, when those shares were sold and at what price, whether the assessee has earned profit and whether anything has been transferred to the security lender over and above the securities. All these details are required to be verified. Even if it is accepted that assessee was not granted proper opportunity of hearing before the lower authorities i.e. before the Assessing Officer in absence of any show-cause notice, as alleged, it cannot be said that assessee was devoid of opportunity before the ld. First appellate authority as more than 10 notices of hearing were issued and assessee kept on seeking adjournments. Therefore matter is not at all examined by the lower authorities, before us only assertions are made, evidences were not produced. Therefore, as the full facts have not been examined by the lower authorities, and assessee also might not have proper opportunity before Ld. Ao, order of Ld. CIT (A) is ex parte, we set aside the whole issue back to the file of the ld. CIT (Appeals). Speculative activities - whether Explanation to Section 73 is applicable in the case of the assessee company or not? - AO held that the assessee company is engaged in speculative activities and, therefore, the speculative loss cannot be allowed to be set off against any other income - HELD THAT - Naturally, the assessee did not appear before the ld. CIT (Appeals) and hence the issue was decided against assessee. For the reason given by us while deciding other grounds of appeal, we also set aside this ground of appeal back to the file of the ld. CIT (Appeals) with direction to the assessee to show that the assessee is not engaged in speculative activities or the Explanation to Section 73 do not apply. Thus, this ground of appeal is decided accordingly. Addition of shares taken on loan by the assessee from another person - HELD THAT - As assessee has submitted all-new documents which have never been submitted before the lower authorities. Even before us no application for admission of additional evidences were made. Even otherwise on the merits we have set aside this issue back to the file of the learned CIT - A. The assessee will have the full opportunity there to explain his case. Thus the additional submission made by the assessee does not have any impact on our decision rendered earlier in this order.

Summary

Issues:
1. Disallowance under Section 14A read with Rule 8D
2. Addition of unexplained investment
3. Applicability of Explanation to Section 73

Issue 1: Disallowance under Section 14A read with Rule 8D:
The appellant, Himalayan Dairies Pvt. Ltd., contested the disallowance of ?5,27,095 under Section 14A of the Income Tax Act. The Assessing Officer applied Rule 8D due to the absence of proper disallowance by the appellant. However, it was noted that the appellant had only claimed an expenditure of ?48,280 in its profit and loss account. Consequently, the disallowance was directed to be restricted to ?48,280, as the disallowance cannot exceed the actual expenditure claimed. The appeal on this issue was partly allowed.

Issue 2: Addition of Unexplained Investment:
The addition of ?1,21,59,988 as unexplained investment under Section 69 of the Act was contested by the appellant. The Assessing Officer made the addition as the source of shares credited in the demat account was unexplained. The appellant argued that the shares were received on loan and provided details supporting this claim. However, the lower authorities upheld the addition due to lack of proper explanation. The Tribunal set aside the issue back to the CIT (Appeals) directing the appellant to provide necessary details regarding the shares received on loan, including the lender's details, transaction specifics, and the nature of the transaction.

Issue 3: Applicability of Explanation to Section 73:
The Assessing Officer disallowed the speculative loss of ?75,429 to be set off against other income, stating that the appellant was engaged in speculative activities. The CIT (Appeals) upheld this decision due to the appellant's non-appearance. The Tribunal set aside this issue back to the CIT (Appeals), directing the appellant to demonstrate that it is not engaged in speculative activities or that the Explanation to Section 73 does not apply.

In conclusion, the Tribunal partly allowed the appeal on the first issue, directed further examination on the second issue by the CIT (Appeals), and sent back the third issue for reconsideration. The appellant was given specific directions to provide necessary details and explanations to address the concerns raised by the Assessing Officer. The Tribunal emphasized the importance of proper documentation and compliance with tax regulations in resolving the issues raised in the appeal.