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TMI Blog2015 (6) TMI 278X X X X Extracts X X X X X X X X Extracts X X X X ..... on. Since the brokerage and value of shares both form a component part of the debt, the requirements of section 36(2)(i) are fulfilled where a part thereof is taken into account in computing the income of the assessee. Further, it is not disputed that the assessee has written off the debts as bad in its books of account. Under these set of facts, we notice that the assessee complied with the provisions of sections 36(1)(vii) as well as 36(2)(i). Hence, by following the decision of Jurisdictional High Court rendered in the case of SHREYAS S. MORAKHIA (2012 (3) TMI 103 - BOMBAY HIGH COURT), we uphold the order of the ld.CIT(A) on this issue.- Decided in favour of assessee. Computer and software development expenditure - capital or revenue expenditure - Held that:- Since the break-up details of the expenditure are not available on record, we are of the view that this issue requires fresh examination at the end of the AO. Accordingly, we set aside the order of ld. CIT(A) on this issue and restore the same to the file of AO with a direction to examine the same in the light of the decision of ITAT in the case of AMWAY India Enterprises (2008 (2) TMI 454 - ITAT DELHI-C ) by duly consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .e., purchase and sale of shares on the very same day would only show that the assessee has not intended to purchase them as an investor. Hence, we are of the view that the ld.CIT(A) was justified in confirming the assessment of STCG as business income of the assessee. - Decided against assessee. - I.T.A. No.3325/Mum/2011, I.T.A. No.4371/Mum/2011 - - - Dated:- 5-6-2015 - S/SHRI B.R.BASKARAN AND AMIT SHUKLA, JJ. For the Appellant : Shri Nishit Gandhi For the Respondent : Shri Asghar Zain V P ORDER PER B.R. BASKARAN (AM) These cross-appeals are directed against the order dated 10.3.2011 passed by the Ld.CIT (A)-11, Mumbai and they relate to the assessment year 2007-08. 2. Briefly stated facts of the case are that the assessee is engaged in the business of Share Broking and Other Related Financial Services. The assessment for the year under consideration was completed by the AO making various disallowances. In the appeals filed before the ld.CIT(A), the First Appellate Authority allowed the appeal of the assessee in part. Aggrieved by his order, both the parties have filed these appeals appeal before us. 3. First we shall take up the appeal filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 006-07 has been deleted by the Mumbai Bench of the Tribunal in assessee s own case. 4.1 At the time of hearing, the ld.AR pointed out that the decision rendered by the Special Bench of the Mumbai Tribunal in the case of SHREYAS S. MORAKHIA (supra) has since been approved by the Hon ble Bombay High Court in its decision reported in [2012] 342 ITR 285 (Bom). The Hon ble High Court held that the value of the shares transacted by the assessee as a stock broker on behalf of its client is very much a part of the debt as is the brokerage which is charged by the assessee on the transaction. Since the brokerage and value of shares both form a component part of the debt, the requirements of section 36(2)(i) are fulfilled where a part thereof is taken into account in computing the income of the assessee. Further, it is not disputed that the assessee has written off the debts as bad in its books of account. Under these set of facts, we notice that the assessee complied with the provisions of sections 36(1)(vii) as well as 36(2)(i). Hence, by following the decision of Jurisdictional High Court rendered in the case of SHREYAS S. MORAKHIA (supra), we uphold the order of the ld.CIT(A) on this i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ITO V/s VRM Share Broking (P) Ltd reported in 27 SOT 569 and GOLDCREST CAPITAL MARKETS LTD. V/s ITO [2010] 2 ITR (Trib) 355 (ITAT[Mum]) have held that Explanation to Sec 37(1) are not applicable to the penalty paid on contravention of bye-laws of the Stock Exchange. Accordingly, he allowed the claim of the assessee. The ld. AR pointed out that the coITA ordinate Bench of the Tribunal has considered an identical issue in assessee s own case for the assessment year 2005-06 passed in ITA NO.4347/Mum/2009 and 4033/Mum/2009 dated 4.6.2010. We notice that the co-ordinate Bench of the Tribunal has deleted an identical disallowance made in the assessment year 2005-06 by following the decision rendered in the case of VRM Share Broking (P) Ltd (supra). Under these set of facts, we do not find any infirmity in the decision of ld. CIT(A) on this issue. 7. Now, we shall take up the appeal filed by the assessee. The first issue contested by the assessee relates to the disallowance made under section 14A of the Act. The AO disallowed a sum of ₹ 4,65,945/- under section 14A by applying the provisions of Rule 8D. The ld.CIT(A), though agreed with the contentions of the assessee the the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im depreciation on BSE card up to 19.8.2005 only. He further held that the assessee has also failed to show that such amortization is allowable under any of the provisions of the Act. Accordingly, he upheld the order of AO. 9.2 Before us, in support of this submissions, the ld.AR placed his reliance on the decision of the Hon ble Supreme Court in the case of TECHNO SHARES AND STOCKS LTD. V/s CIT [2010] 327 ITR 323 (SC). The decision rendered by the Hon ble Supreme Court relates to the depreciation allowable on membership card of Stock exchange. The submission of the assessee is that it has already capitalised the value of BSE card at ₹ 65.75 lakhs. What is claimed now relates to the amortization of the excess payment. Hence, in our view, the decision of Hon ble Supreme Court, referred supra, is not applicable to this claim. We notice that this is the last year of claim, which means that the assessee had made similar amortisation claim in earlier years also. However, it was not shown to us by either parties that the said claim was allowed or disallowed in earlier years. Be that as it may, the ld. CIT (A) has pointed out that, after corporatisation of BSE, even the depreciat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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