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TMI Blog2018 (7) TMI 1849X X X X Extracts X X X X X X X X Extracts X X X X ..... 805 - SUPREME COURT OF INDIA] wherein it has categorically been held that the objective of holding the investments was immaterial and the disallowance was to be applied in all cases irrespective of the fact whether the same are held as stock-in-trade or as an investments. Therefore, keeping in view the recent judgment of Hon’ble Apex Court as cited above, we deem it fit to restore the matter back to the file of Ld. AO for re-adjudication in the light of statutory provisions as well as in the light of ratio of cited judgment of Hon’ble Supreme Court. The assessee, in turn, is directed to substantiate his claim with supporting evidences in this regard failing which Ld. AO shall be at liberty to decide the issue on the basis of material avail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Hon'ble ITAT, Mumbai in the case of ITO v/s. RBK Share Broking Pvt.Ltd. - 37 Taxmann 128 (2013), M/s. Viraj Profiles Ltd. In ITAT No.4439/Mum/2013 dated 21/10/2015 - 46 ITR(T) 626 (Mumbai - Trib.)/[2016] and in Ferani Hotels Pvt.Ltd.in ITA No.857/Mum/2013 dated 17/11/2014. The assessment for impugned AY was framed by Ld. Deputy Commissioner of Income Tax-Circle 3(3)(1), Mumbai [AO] u/s 143(3) of the Income tax Act,1961 on 29/01/2016 wherein the income of the assessee has been assessed at ₹ 379.95 Lacs under normal provisions & ₹ 363.19 Lacs for the purpose of Minimum Alternative Tax [MAT] u/s 115JB after certain additions / disallowances. As evident from the grounds of appeal, the only dispute before us is disallowance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as u/s 115JB. 3. Aggrieved, the assessee contested the same with success before Ld. CIT(A) vide impugned order dated 24/11/2016 wherein various submissions were made by the assessee which have been extracted in the impugned order. The Ld. CIT(A) relying upon its own decision in assessee's own case for AY 2012-13 deleted the impugned additions of ₹ 147 Lacs. As noted by Ld. CIT(A), the decision for AY 2012-13 relied upon the decision of this Tribunal for AY 2008-09. Aggrieved, the revenue is in further appeal before us. 4. The Ld. Departmental Representative [DR], Shri Ram Tiwari contended that the computations were to be made only as per statutory mandate as contained in Rule 8D and therefore, the action of the Ld. AO was justified. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disallowance of ₹ 165.43 Lacs against common expenditure of ₹ 471 Lacs which translated into disallowance rate of 35%, which led the Tribunal to delete the additional disallowance made by Ld. AO. 5.4 Similarly, the Tribunal's order for AY 2010-11, ITA No. 309/Mum/2014 dated 12/04/2017 records a finding that the suo-moto disallowance made by the assessee for ₹ 151.54 Lacs translated into approx. 44% of common expenditure. This rate was 35.45% in AY 2011- 12. However, no such tabulation has been placed before us for the impugned AY. In view of the stated facts, the disallowance as offered by Ld. AR @0.22% of average investment could not be accepted. 5.5 So far as the decision of Tribunal for AY 2008-09 as extracted in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in turn, is directed to substantiate his claim with supporting evidences in this regard failing which Ld. AO shall be at liberty to decide the issue on the basis of material available on record. 5.8 So far as adjustment of disallowance u/s 14A in computation of book profit u/s 115JB is concerned, we find that the matter stood squarely in assessee's favour by the cited judgment of Delhi Tribunal (Special Bench) rendered in ACIT Vs. Vireet Investment (P.) Ltd. [82 Taxmann.com 415]. Upon perusal of the same, we find that Special Bench, after considering two contrary decision of Hon'ble Delhi High Court titled as CIT Vs. Goetze (India) Ltd. [2014 361 ITR 505] & PCIT Vs. Bhushan Steel Ltd. [ITA 593/2015 dated 29/09/2015], took the view favorabl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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