2015 (7) TMI 102 - AT - Income Tax

Disallowance under Section 14A r.w.r. 8D - Held that - While dealing with the issue AO has not considered various factors and has not given any finding about them. Assessee had claimed that borrowed fund of ₹ 3.5 Crores were not used for investing in shares, that loans advanced to various persons were not connected with acquisition of shares. We find that these are crucial issues for deciding disallowance u/s. 14 A of the Act. Assesee himself has made an alternate plea that even if disallowance has to be made it has to restricted to certain amount which is much lower than the actual disallowance made by the AO. Thus matter should be restored back to AO. He is directed to make fresh calculation after considering the submissions of the assessee. - Decided in favour of assessee for statistical purposes. Rebate available u/s. 88E - Held that - In the case of Ashika Stock Broking Ltd. (2010 (11) TMI 555 - ITAT, Kolkata) it was held that once there was a net surplus from share dealing of market segment and future and option segments together and if there was a net profit therefrom the assessee was entitled for rebate of entire STT. In the case under consideration surplus from share dealing from market segment/ future and option segment is not there, but there is net income after setting off of losses. We are of the opinion that once there was overall profit for the AY under consideration, rebate under section 88E of the Act had to be allowed. Following the order of Ashika (supra) we hold that section 88E does not envisage any restriction for allowing rebate u/s.88E till positive income is filed by the an assessee. We find that while passing the assessment order the AO has not given any finding about applicability or otherwise of Section 87(2) of the Act. We are of the opinion that if the provision of said section are not coming in way to allow the rebate to the assessee, same should be allowed at the rate calculated by the assessee. For this limited purpose we remit the matter back to the file of the AO to decide the issue afresh. - Decided in favour of assessee for statistical purposes.

Summary

Issues:
1. Disallowance under Section 14A of the Income Tax Act, 1961
2. Computation of rebate under Section 88E of the Act
3. Levy of interest under Sections 234B and 234C

Issue 1: Disallowance under Section 14A of the Income Tax Act, 1961:
The Appellate Tribunal addressed the grounds of appeal challenging the disallowance under Section 14A of the Income Tax Act, 1961. The assessee, engaged in trading in derivatives and mutual funds, declared a total income of Rs. 5.94 Crores. The Assessing Officer (AO) disallowed expenses amounting to Rs. 19.34 lakhs under Section 14A read with Rule 8D as the assessee had not allocated any expenditure towards earning tax-exempt dividend income. The First Appellate Authority (FAA) partly allowed the appeal, noting the lack of separate records for expenses related to exempt income. The Tribunal found that crucial issues, such as the use of borrowed funds for investments, were not adequately considered by the AO. Therefore, the matter was remitted back to the AO for fresh calculation after considering the submissions of the assessee.

Issue 2: Computation of rebate under Section 88E of the Act:
Regarding the rebate under Section 88E of the Act, the AO calculated a rebate of Rs. 75.07 lakhs, differing from the Rs. 1.01 Crores claimed by the assessee. The FAA upheld the AO's calculation. The Tribunal considered conflicting views on whether the rebate should be calculated before or after setting off losses. It was concluded that the assessee was entitled to the full rebate of Rs. 1.01 Crores under Section 88E, and the matter was remitted back to the AO to decide the issue afresh, emphasizing the absence of findings on the applicability of Section 87(2) of the Act.

Issue 3: Levy of interest under Sections 234B and 234C:
The Tribunal noted that the FAA did not dispose of the ground concerning the levy of interest under Sections 234B and 234C. However, the judgment did not provide further details or rulings on this issue.

In conclusion, the Appellate Tribunal ITAT MUMBAI addressed the challenges raised by the assessee regarding the disallowance under Section 14A and the computation of rebate under Section 88E of the Income Tax Act, 1961. The Tribunal partially allowed the appeal on both issues, remitting the matters back to the AO for fresh calculations based on the submissions and considerations outlined in the judgment.