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2015 (9) TMI 1104 - AT - Income TaxDisallowance being fees paid under Portfolio Management Scheme(PMS) - treated as not deductible expenditure u/s 48(1) of the I.T. Act against Short Term Capital Gain (STCG) computed by the Appellant - Held that - The issue arising before us is identical to the issue before the Tribunal in assessee s own case and following the same parity of reasoning, we uphold the order of CIT(A) in disallowing the expenditure of PMS, while computing the income from short term capital gains. - Decided against assessee. Disallowance computed under section 14A of the Act read with Rule 8D of the Act - Held that - The issue arising before us is identical to the issue before the Tribunal in Stock Holding Corporation of India Pvt. Ltd Vs. ACIT (2015 (6) TMI 640 - ITAT MUMBAI). In the facts of the present case also the AO, has failed to record the dissatisfaction that the working of the disallowance made by the assessee against the income exempt from tax, under section 14A of the Act, was incorrect. In view thereof the provision of section 14A(2) of the Act have not been correctly applied by the AO and accordingly we find no merit in the order of the authorities below in this regard.AO at the first instance must examine the disallowance made by the assessee or the claim of the assessee that no expenditure was incurred to earn the exempt income. If the Assessing Officer is not satisfied on this count after making reference to the account, then he is entitle to adopt the method as prescribed i.e. Rule 8D of the Rules. In the absence of said satisfaction being referred by the AO in the present case, we find no merit in the disallowance made by the AO under section 14A of the Act. Accordingly, we delete the disallowance - Decided in favour of assessee. Ad hoc disallowance of 5% made out of various expenses - Held that - The assessee before us has failed to bring on record any evidence to controvert the finding of the AO/CIT(A) in this regard. Accordingly, we uphold the disallowance of 5% of expenditure out of balance expenses of ₹ 22,29,005/- as expenditure having been incurred in cash and not being supported by proper vouchers and also being incurred for non business purpose. - Decided against assessee. Disallowance of depreciation on residential premises - Held that - The claim of the assessee was denied by the authorities below in the absence of the particulars of the person having not been provided by the assessee. In all fairness we are of the view that the matter needs to be looked into by the AO, in order to verify claims of the assessee. Following the principles of natural justice we may it fit deem to the restore this issue back to the file of the AO to verify the names of the employees to whom the premises have been allotted and in whose hands the perk has been offered. Reasonable opportunity of hearing shall be afforded to the assessee.- Decided in favour of assessee for statistical purposes. Unaccounted investments - Held that - The said investments are disclosed by the assessee in its balance sheet which was filed along with the return of income. In the totality of the above said facts and circumstances where the assesee had gathered the information from the Sub-registrar office, which in turn related to the purchase of two different properties by the assessee which was reflected/disclosed in its balance sheet, we find no merit in the addition made in the hands of the assessee on account of undisclosed capital gains. The CIT(A) which has given a finding that the agreement value and the AIR data tally, which has not been controverted by the Ld. DR for the Revenue. We find no merit in the plea of the Revenue in this regard. The evidence filed before the CIT(A) was the balance sheet of the assessee and the agreements which were registered by the Subregistrar, Mumbai which is a Government record. The admission of such evidence by the CIT(A) cannot be said to be in violation of Rule 46A of I.T. Rules.- Decided in favour of assessee
Issues Involved:
1. Disallowance of fees paid under Portfolio Management Scheme (PMS). 2. Disallowance under Section 14A of the I.T. Act read with Rule 8D. 3. Ad hoc disallowance of 5% of various expenses. 4. Disallowance of depreciation on residential premises used by staff. 5. Deletion of addition of Rs. 1,20,40,838 to the returned income. Issue-wise Detailed Analysis: 1. Disallowance of Fees Paid under Portfolio Management Scheme (PMS): The assessee contested the disallowance of Rs. 26,01,054/- paid as PMS fees, arguing it was directly related to the purchase and sale of shares and should be deductible while computing Short Term Capital Gains (STCG). The Tribunal referenced its previous decision in the assessee's own case for the Assessment Year 2006-07, where it was held that PMS fees could not be considered as the cost of acquisition or improvement of shares and securities, nor as expenditure incurred wholly and exclusively in connection with their sale. The Tribunal upheld the disallowance, dismissing the assessee's appeal on this ground. 2. Disallowance under Section 14A of the I.T. Act read with Rule 8D: The assessee had claimed dividend income of Rs. 43,19,310/- as exempt and self-disallowed Rs. 98,945/- under Section 14A. The AO, however, computed the disallowance at Rs. 11,23,626/- under Rule 8D, which the CIT(A) reduced to Rs. 10,24,681/-. The Tribunal found that the AO did not record any dissatisfaction with the assessee's disallowance before applying Rule 8D, as required by the Hon'ble Bombay High Court in Godrej & Boyce Manufacturing Ltd. v. CIT. Consequently, the Tribunal ruled that the AO's application of Rule 8D without recording dissatisfaction was incorrect and deleted the disallowance of Rs. 10,24,681/-, allowing the assessee's appeal on this ground. 3. Ad Hoc Disallowance of 5% of Various Expenses: The AO disallowed 5% of various expenses totaling Rs. 22,29,005/- due to the majority being claimed in cash and the potential for personal use. The CIT(A) upheld this disallowance, and the Tribunal found no evidence from the assessee to counter the findings of the AO and CIT(A). Thus, the Tribunal upheld the disallowance of Rs. 1,11,450/-, dismissing the assessee's appeal on this ground. 4. Disallowance of Depreciation on Residential Premises Used by Staff: The assessee claimed depreciation of Rs. 7,91,136/- on residential premises used by staff, which was disallowed by the AO due to lack of evidence. The CIT(A) upheld this disallowance. The Tribunal, noting the absence of evidence, remanded the matter back to the AO to verify the usage of the premises by the employees and the corresponding perks offered. This ground was allowed for statistical purposes. 5. Deletion of Addition of Rs. 1,20,40,838 to the Returned Income: The AO added Rs. 1,20,40,838/- as short-term capital gains based on AIR information about two property sales, which the assessee denied. The CIT(A) admitted additional evidence showing the transactions were purchases, not sales, and deleted the addition. The Tribunal upheld the CIT(A)'s decision, noting that the agreements and balance sheet entries corroborated the assessee's claim and that the CIT(A)'s admission of evidence was not in violation of Rule 46A. The Revenue's appeal on this ground was dismissed. Conclusion: The Tribunal partially allowed the assessee's appeal by deleting the disallowance under Section 14A and remanding the depreciation issue for verification. The Revenue's appeal was dismissed, upholding the deletion of the addition of Rs. 1,20,40,838/-.
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