9911796707
TMI Blog2015 (6) TMI 794X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of the Commissioner of Income Tax (Appeals)-III, Pune dated 29.11.2011 which, in turn, has arisen from an order dated 01.12.2009 passed by the Assessing Officer u/s 143(3) of the Income Tax Act, 1961 (in short "the Act"). 2. First, we shall take-up the appeal of the assessee wherein the following Grounds of Appeal have been raised :- "1. Confirming the disallowance of the 'Provision for Leave Encashment' amounting to Rs. 5,36,234/- ascertained on the basis of actuarial valuation for the eligible employees of the Appellant Company. 2. Confirming the disallowance of the 'Expenses claimed on account of the Portfolio Management Services (PMS) fees amounting to Rs. 6,65,593/-." 3. In so far as the first Ground of Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avour of the assessee by way of the decision of the Tribunal in ITA No.17/PN/2012 and others in the case of Serum Institute of India Ltd. dated 10.04.2014 (supra), wherein the relevant discussion is as under :- "11. Grounds of appeal No.2 by the assessee reads as under : "On the facts and in the circumstances of the case and in law the Ld.CIT(A) erred in refusing to treat 'PMS' fees paid of Rs. 34,63,969/- as part of either of cost of acquisition/improvement or as 'Cost of transfer' for working Income from Capital Gain." In any event, he ought to have accepted the alternate contention of the Appellant that there was, to that extent, transfer by overriding title of consideration/income arising on such sale". 11.1 Facts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T(A) upheld the action of the AO by holding that the expenditure on account of 'PMS' fees is neither cost of acquisition of the shares in question nor cost of improvement there of nor incurred wholly and exclusively in connection with the transfer of assets and therefore the AO is justified in rejecting the claim of deduction of the fees of Rs. 34,63,969/- while computing the capital gain. 11.3 Aggrieved with such order of the CIT(A) the assessee is in appeal before us. 12. After hearing both the sides we find an identical issue had come up before the coordinate Bench of the Tribunal in the case of KRA Holding and Trading Investment Pvt. Ltd. Vs. DCIT. We find the Tribunal vide ITA No.703/PN/2012 order dated 19-09-2013 for A.Y. 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that similar stand of the CIT(A) in the assessee's own case for assessment year 2007-08 came up before the Tribunal in ITA No. 356 & 240/PN/2011 dated 25.07.2012 and after considering the divergent view of the Mumbai Bench of the Tribunal in the case of Shri Homi K. Bhabha (supra) which has been relied upon by the CIT(A), the issue has been decided in favour of the assessee. It was, therefore, contended that the issue is accordingly liable to be decided in favour of the assessee. 12. The learned CIT(DR) appearing for the Revenue has not controverted the factual matrix brought out by the learned counsel so however she has relied upon the order of the CIT(A) in support of the case of the Revenue. 13. We have carefully conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deductible against capital gains. The decision of the Pune Bench of the Tribunal in the case of KRA Holding & Trading was not followed by the Mumbai Bench in the above cited decision. The Mumbai Bench following other decisions of the coordinate Benches of the Tribunal declined to follow the decision in the case of KRA Holding & Trading (supra). It is the settled proposition of law that when two view are possible on the same issue the view which is favourable to the assessee has to be followed. [CIT vs. Vegetable Products 88 ITR 192 (SC)]. Further, in the instant case the Tribunal in assessee's own case has already taken a view in favour of the assessee. Since the AO & CIT(A) have followed the order for earlier year in the case of the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee u/s 80-IA of the Act with respect to the profits and gains of the Windmill Undertaking. The only point of difference between the assessee and the Revenue is with regard to the adoption of the 'initial assessment year' for the purposes of section 80- IA(5) of the Act. 10. On this aspect, it was a common point between the parties that similar issue was considered by the Tribunal in the assessee's own case for assessment years 2004-05 to 2006-07 vide ITA Nos.290 to 292/PN/2010 dated 28.09.2011. The Tribunal after following the judgement of the Hon'ble Madras High Court in the case of Velayudhaswamy Spinning Mills (P) Ltd. vs. ACIT, 38 DTR 57 (Madras) upheld the plea of the assessee. The CIT(A) has also allowed th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
