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TMI Blog2014 (6) TMI 1032X X X X Extracts X X X X X X X X Extracts X X X X ..... n for claim under the head Capital Gain - capital gain or business income - HELD THAT:- As decided in KRA Holding [ 2013 (9) TMI 1013 - ITAT PUNE ] e 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 assessee and since the order of CIT(A) for earlier year has been reversed by the Tribunal, therefore, unless and until the decision of the Tribunal is reversed by a higher court, the same in our opinion should be followed. In this view of the matter, we respectfully following the order of the Tribunal in assessee s own case for A.Y. 2004-05 allow the claim of the Portfolio Management fees as an allowable expenditure. We find no infi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich the Ld. Departmental Representative has no objection. Accordingly, the above ground by the assessee is dismissed as "not pressed". ITA No.2212/PN/2012 (By Revenue) : 4. Facts of the case, in brief, are that the Assessing Officer, during the course of assessment proceedings, observed that the assessee had incurred expenditure of ₹ 25,97,933/- on account of PMS fees. He observed that the income from PMS activity has been shown by the assessee as income from capital gain and part of which belonging to Long Term Capital Gain is treated as exempt and part of which was subjected to tax as Short Term Capital Gain. He observed that the assessee has disallowed the payment of PMS fees under the head "income from business". However, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a binding precedent and therefore, the same is followed for allowing the claim of the appellant. Ground No. 2 therefore, is allowed." 6. Aggrieved with such order of the CIT(A) the Revenue is in appeal before us with the following grounds : "1. On the facts and in the circumstances of the case and in law, the Ld CIT(A) erred in deciding appeal that Portfolio Management Services (PMS) fees paid against STCG is allowable expenditure u/s. 48 not following the judgments of ITAT in the case of Shri Homi Bhabha Vs. ITO (ITAT Mumbai) ITA No. 3287/Mum/2009, Shri Pradeep Kumar Haralka Vs. ACIT (ITAT Mumbai) ITA No. 4501/Mum/2010 and Devendra Motilal Kothari Vs. DCIT (2011) 50 DTR 369 (Mum). 2. On the facts and in the circumstances of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nagement Fees is an allowable expenditure from such capital gain. 8. The Ld. Departmental Representative fairly conceded that the issue stands decided in favour of the assessee by the decision of the Tribunal in the case of KRA Holding and Trading Pvt. Ltd. (Supra). 9. After hearing both the sides, we find the Pune Bench of the Tribunal in the case of KRA Holding and Trading Pvt. Ltd. (Supra) has observed as under: "9. In the appeal of the assessee, the solitary issue is with regard to the action of the CIT(A) in confirming the stand of the Assessing Officer that fees paid to ENAM Asset Management Company Pvt. Ltd. was not an allowable expenditure in computing appellant's income whether under the head 'business' or under the head 'ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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 considered the rival submissions and also the precedent in the assessee's own case by way of the order of the Tribunal dated 25.07.2012 (supra). In the said case, the Tribunal considered the allowability of expenditure incurred by way of payment of fees of ENAM Asset Management Company Pvt. Ltd. in terms of the investment agreement dated 01.01.2005, which is precisely the issue before us also. The Tribunal re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w 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 assessee and since the order of CIT(A) for earlier year has been reversed by the Tribunal, therefore, unless and until the decision of the Tribunal is reversed by a higher court, the same in our opinion should be followed. In this view of the matter, we respectfully following the order of the Tribunal in assessee's own case for A.Y. 2004-05 allow the claim of the Portfolio Management fees as an allowable expenditure. The ground raised by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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