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TMI Blog2016 (4) TMI 657X X X X Extracts X X X X X X X X Extracts X X X X ..... in the profit and loss account which reflected the derivative transactions of the assessee. In the factual matrix of the case, as laid out above, we concur with the averments of the AO without examination of the assessee’s accounts and recording that he is not satisfied with the assessee’s claim, proceeded on the factually erroneous conclusion that no expenditure was debited in respect of the earning of the assessee’s exempt dividend income, to make the disallowance u/s 14A r.w. Rule 8D; which was not warranted. We agree with the plea of the assessee that since it had already claimed expenditure incurred (supra) for earning the exempt dividend income of ₹ 75,150/-, the further disallowance of ₹ 34,292/- made by the Assessing Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 34,292/- ii) Holding Short term Capital gains to be business income ₹ 3,44,303/- 2.2 Aggrieved by the order of assessment dt. 30/11/2010 for Asst. year 2008-09, the assessee preferred an appeal before the CIT(Appeals)-23, Mumbai. The Ld. CIT(A) dismissed the assessee s appeal vide the impugned order dt. 04/03/2013. 3. The assessee, being aggrieved by the order of the CIT(Appeals)-23, Mumbai dt. 04/03/2013 for Asst. year 2008-09 has preferred this appeal before the Tribunal raising the following grounds:- 1. The Commissioner of Income-tax (Appeals)-23, Mumbai (hereinafter referred to as the CIT(A)) erred in upholding the action of the Assistant Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al and decided the same. 4. Ground No: 3 4.1 At the outset of the hearing, the Ld.AR for the assessee submitted that the assessee is not pressing this ground in this appeal. In view of this ground no. 3 being not pressed, the same is rendered infructuous and is accordingly dismissed. 5. Ground No. 1- Disallowance u/s u/s 14A r.w. Rule 8D(2)(iii) ₹ 34,292/- 5.1.1 In this ground, the assessee assails the impugned order contending that in the factual matrix of the case, the Ld. CIT(A) ought not to have upheld the action of the Assessing Officer ( A.O ) in disallowing the amount of ₹ 34,292/- on account of expenditure incurred for earning dividend income of ₹ 75,150/- as the disallowance made, was not i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the earning of the aforesaid exempt dividend income. The Ld. AR submitted that it is the aforesaid factually erroneous observation of the authorities below that led to the unwarranted disallowance of ₹ 34,292/- made u/s 14A r.w. Rule 8D(2)(iii), which ought to be deleted. 5.2 Per contra, the Ld. DR for revenue supported the orders of the authorities below. 5.3.1 We have heard the rival contentions and perused and carefully considered the material on record. The facts as emanate from the record are that the assessee earned dividend income of ₹ 75,150/- which was exempt u/s 10(34) of the Act. As can be seen from the impugned order, the assessee had in fact submitted before the Ld.CIT(A) that she credited the exempt divid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld the action of the Assessing Officer in holding the capital gains of ₹ 3,41,303/- on sale of short term capital assets(i.e.STCG.) as business income on account of share trading activity. In this regard, the Ld. AR submitted that the very same issue was considered by the co-ordinate bench of this Tribunal in the assessee s own case for Asst. year 2006-07 and held in favour of the assessee. In its order in ITA No. 2133/Mum/2010 dt. 19/09/2014 the Tribunal after considering the issue at paras 6 to 11 thereof, at para 12 has held and directed the Assessing Officer to assessee the gain on sale/purchase of shares at STCG. only and not as business income. The Ld. AR also submitted that the assessment in the case on hand for A.Y. 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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