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TMI Blog2021 (8) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... of consistency in the absence of any facts. - Decided in favour of assessee. - ITA No. 2770/DEL/2018 [A.Y 2011-12] And ITA No. 2771/DEL/2018 [A.Y 2012-13] - - - Dated:- 26-7-2021 - Shri N.K. Billaiya, Accountant Member, And Shri K.N. Chary, Judicial Member For the Assessee : Shri Akhilesh Kumar, Adv For the Revenue : Shri Jagdish Singh Dahia, Sr. DR ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER, Both the above captioned appeals by the assessee are preferred against the order of the CIT(A) - Aligarh, dated 13.01.2016 pertaining to A.Ys 2011-12 and 2012-13. 2. Since common grievance is involved in both the appeals, they were heard together and are disposed of by this common order for the sake of convenience and b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich are, in fact, covered by earlier order of this Tribunal. 8. We are of the considered view that technicalities should not come in the way of imparting justice. Delay is, accordingly, condoned. 9. The common grievance in both these appeals relates to the disallowance made u/s 14A of the Income tax Act, 1961 [hereinafter referred to as 'The Act' for short] r.w.r 8D of the Income tax Rules, 1962. 10. During the course of scrutiny assessment proceedings, the Assessing Officer noticed that the assessee has received dividend from UTI Liquid Plus Fund and dividend from shares of other companies. The Assessing Officer was of the opinion that to earn exempt income, the assessee must have incurred some expenditure and accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting about the decisions for investment that too on a probabilistic view but not for exempt income more so when funds etc. itself provided sufficient services as explained by assessee before AO. Investments are admittedly out of own funds for which no addition is made. Ld. AR also took us to the order for AY 2011-12 of assessee with identical facts on the issue which is on pages 15 to 19 of paper book where ld. AO has recorded in para 4 that, '.... It is evident that there is no expenditure which is directly attributable to exempt income (dividend). However , it cannot be ruled out that certain element of indirect expenses cannot be remotely attributable to the exempt income.....'. It is also stated that disallowance is made to main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 394 ITR 449(SC) held that AO failed to record proper satisfaction. In the case of Taikisha Engineering, hon'ble court has relied on hon'ble Bombay HC decision in above case of Godrej reported in 328 ITR 81 for the proposition that that satisfaction has to be recorded with respect to accounts in terms of ss. (2)/(3) of s. 14A and the provisions does not ipso facto enable AO to apply method prescribed in rules. This satisfaction must be on an objective basis having regard to claim of assessee. Rule 8 D(1) itself start with the words, 'where the assessing officer, having regard to the accounts of the assessee.......' in the absence of proper satisfaction. 12. In the most recent case of Eicher [supra] it is held in para 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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