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TMI Blog2024 (6) TMI 354X X X X Extracts X X X X X X X X Extracts X X X X ..... that the issue raised in ground No. 2 is identical to the issue raised in ground No.3 of appeal for Assessment Year 2012-13. There is no change in facts, hence, the submissions made in Assessment Year 2012-13 would equally hold good for the present appeal. 5. Shri Anoop Hiwase representing the Department vehemently defended the impugned order, however, he fairly stated that the issue raised in ground No.2 is similar to the one raised by the assessee in Assessment Year 2012-13. 6. We find that the action of Transfer Pricing Officer (TPO) in charging interest on share application money pending allotment by re-characterizing investment as loan is recurring. In assesee's appeal ITA No.932/Mum/2017 for Assessment Year 2012-13 similar issue was decided by us vide separate order of even date, in favour of assessee by following the earlier order of Tribunal in assessee's own case. For the sake of brevity the findings are not reproduced herein again. Both sides are unanimous in stating that the facts in the impugned assessment year are identical except the amount of interest. It is observed that the companies in which investments are made are also same i.e. Agila Specialization Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The grace period of five days have been allowed for the employers to remit the contributions as the system of calculation of wages of the employees and their corresponding dues under the three schemes (Employees' Provident Fund Scheme 1952, Employees' Pension Scheme 1995 & Employees' Deposit Linked Insurance Scheme 1976) were done manually and its remittances in the bank required additional time in the earlier manual setup. 3. In the present era, employers compute the wages and EPF liabilities electronically (in most of the cases on real time basis) and file Electronic Challan-cum-Return (ECR). The remittances are also being deposited through Internet Banking. This has reduced the process and time taken in calculation of PF dues and its remittances in the bank. Accordingly, it has been decided that concession of grace period of 5 days available to the employers for depositing the contribution & other dues is withdrawn herewith. This decision shall apply from February, 2016 (contributions for month of January, 2016 and payable in the month of February, 2016)." A perusal of the aforesaid communication reveals that the grace period of five days was allowed to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ogether for adjudication. 11. The ld. Counsel for the assessee at the outset submitted that during the period relevant to the Assessment Year under appeal, the assessee has not earned any income exempt from tax, hence, no disallowance u/s. 14A is warranted. The ld. Counsel for the assessee further submitted that the assessee has made suo-moto disallowance of Rs. 5,04,577/-. The Assessing Officer applied Rule 8D and made further disallowance of Rs. 17,30,77,993/-. Since, no exempt income was earned no disallowance u/s. 14A of the Act including suo-moto disallowance was required to be made. Once no disallowance u/s. 14A of the Act is made there is no question of considering it for the purpose of computing Book Profits u/s. 115JB of the Act. 11.1 The ld. Counsel for the assessee submitted that for deciding additional ground of appeal no fresh documents are to be filed. The additional grounds of appeal are legal in nature, and can be decided on the basis of documents already on record. 12. Per contra, ld. Departmental Representative vehemently opposed admission of additional grounds of appeal at this belated stage. The ld. Departmental Representative strongly supported the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... autionary measure and requested that the same should be reduced while determining the taxable income as there was no exempt income derived by the assessee. The co-ordinate Bench of the Tribunal after following the decision rendered by Hon'ble Bombay High Court in case of CIT vs. Prithvi Brokers and Shareholders Pvt. Ltd. 349 ITR 336 (Bom.) held that "no disallowance under section 14A of the Act could be made when there is no exempt income." Operative part of the findings returned by the co-ordinate Bench of the Tribunal in case of Orix Auto Infrastructure Services Ltd. (supra) by returning following findings: "3.2. We find that assessee had made suomoto disallowance under Rule 8D(2)(iii) of Rs. 33,62,493/- and had indeed pleaded before the lower authorities that the same should be reduced while determining taxable income as there was no exempt income derived by the assessee. We find that this request was rejected by the lower authorities. 3.2.1. We find that assessee is entitled to make a claim before the ld. AO or before the ld. CIT(A) even though it had made certain erroneous disallowance in the return of income. Reliance in this regard is placed on the decision of the Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with respect to disallowance under section 14A. Consequently ground Nos.6 & 7 and additional ground No.1 are allowed." Since, facts in the impugned assessment year are identical, following the decision of Co-ordinate Bench we allow additional ground of appeal No.1 and 2 as well. 14.2 In the result, ground No.4 and 5 of appeal and additional ground of appeal No.1 and 2 are allowed. 15. In ground No.6 of appeal, the assessee has assailed disallowance of business promotion expenditure. The ld. Counsel for the assessee stated at Bar that he is not pressing this ground of appeal. In view of above statement made by ld. Counsel for the assessee, ground No.6 of appeal is dismissed as not pressed. 16. In ground No.7 of appeal, the assessee has assailed short credit of tax deducted at source. We deem it appropriate to restore this issue back to the file of Assessing Officer to verify the records and allow TDS credit, in accordance with law. The Assessing Officer before deciding the issue shall grant reasonable opportunity to the assessee to make submissions. 17. In ground No.8 and 9 of appeal, the assessee has assailed levy of interest u/s. 234B and 234C of the Act, respectively. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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