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TMI Blog2016 (12) TMI 1548X X X X Extracts X X X X X X X X Extracts X X X X ..... l. In our considered opinion since this is not a legal ground the same cannot be admitted as an additional ground at this stage. Hence, we dismiss this ground of appeal. - ITA No. 7401/MUM/2013 - - - Dated:- 14-12-2016 - SHRI R.C.SHARMA (AM) AND SHRI RAM LAL NEGI (JM) For The Appellant : Shri. Siddharth Kumar Shah For The Respondent : Shri. Suman Kumar ORDER PER RAM LAL NEGI, JM The present appeal has been filed by the assessee against order dated 29/05/2012 passed by the Ld. CIT(Appeals)-8, Mumbai, for the Asst. year 2009-10, whereby the Ld. CIT(A) dismissed the appeal filed by the assessee against assessment order dated 24/11/2011 passed u/s 143(3) of the Income Tax Act, 1961 (in short the Act ). 2. Brief facts which require necessary mention for the purpose of deciding the issues involved in this case are that the assessee company engaged in the business of brokerage in stock and shares, filed its return of income declaring the total loss of ₹ 1,26,79,145/-. During assessment proceedings the A.O noticed that the assessee had written off an amount of ₹ 1,17,65,000/-, advanced to its subsidiary company, and claimed the same as revenue e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent appeal has been filed along with an application for condonation of delay of 491 days. The Ld Counsel submitted that the delay was not wilful but has happened due to the circumstances beyond control. In fact, the assessee had preferred the first appeal against assessment order raising two grounds. However, the CIT(A) passed the impugned order deciding only second ground of appeal. Accordingly, the application was filed on 27/06/2012, to rectify the error and adjudicate the first ground of appeal also. Thereafter, another reminder dated 02/08/2012 was sent but of no avail. Hence, the assessee preferred the present appeal after expiry of limitation period. The Ld. Counsel for the assessee further submitted that since the delay was not intentional the same may be condoned in the interest of justice. The Ld. departmental representative on the other hand opposed the application. 5. We have heard the rival submissions. Sub-section 5 of section 253 of the Income Tax Act provides that the Tribunal may admit appeal or permit filing of memorandum of cross objection of respondent after expiry of relevant period of limitation referred to in sub-section 3 and 4 section 253, if the tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set, the Ld. Counsel for the assessee submitted that the assessee was not given proper opportunity of being heard hence the order is bad in law. Second ground pertains to disallowance of loan given by the assessee to its subsidiary as working capital to carry on its business. The Ld. Counsel submitted that since, the Ld. CIT(A) has not adjudicated the issue relating to the disallowance of written off of the loan in question the said issue may be restored to the file of the Ld. CIT(A) for adjudication. So far as ground No 3 of the appeal is concerned, the Ld Counsel pointed out that the Mumbai Bench of the ITAT has decided the identical issue in favour of the assessee in assessee s own case ITA No. 842/M/2012 for the A.Y. 2008-09 vide order dated 24.11.2014. Therefore, the findings of the Ld. CIT(A) on the said issue are liable to be set aside. The Ld. Counsel further submitted that ground No 4 has been taken as additional ground to treat loss on shares of 100% subsidiary company as business loss as the same has been erroneously treated as capital loss. 8. After hearing the Ld. DR, we perused the material placed before us. The first ground of appeal is general in nature and we do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... source on payment of transaction charges, no fault can be found with the assessee in not deducting the tax at source in the assessment year in question consequently disallowance made by the assessing officer under section 40(a)(ia) of the Act in respect of the transaction charges cannot be sustained. We made it clear that we have arrived at the above conclusion in the peculiar facts of the present case, where both the revenue and the assessee right from the insertion of Section 194J in the year1995 till 2005 proceeded on the footing that the assessee is not liable to deduct tax at source and in fact immediately after the assessment year in question i.e. from A.Y. 2006-07the assessee has been deducting tax at source while crediting the transaction charges to the account of the stock exchange. Thus on the facts of the present case also, we hold that no disallowance u/s 40(a)(ia) should be made in the present assessment year as the assessee was under a bona fide belief that no tax was deductible, because in the earlier years both the revenue and the assessee had accepted the position that no tax was deductible on the transaction charges. It has been stated before us by the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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