9911796707
TMI Blog2020 (10) TMI 1388X X X X Extracts X X X X X X X X Extracts X X X X ..... ware had entered into the concerned Block of Assets and the utilization of said software for the purpose of assessee s business had become irrelevant for the purpose of allowing depreciation. Moreover as noted by the CIT(Appeals) in his impugned order, there was nothing brought on record by the AO to show that the said software was not used by the assessee-company for the purpose of its business. We, therefore, find no infirmity in the impugned order of the ld. CIT(Appeals) deleting the disallowance made by the Assessing Officer on account of depreciation on certain software in question and upholding the same, we dismiss Ground No. 2 of the Revenue s appeal. Treating the share trading loss and commodity derivative trading loss as speculative in nature - HELD THAT:- As regards the issue relating to the claim of the assessee regarding the loss in commodity transactions being the normal business loss, it is observed that the same is squarely covered in favour of the assessee by the decision of Asian Financial Services Limited [ 2016 (3) TMI 685 - CALCUTTA HIGH COURT] wherein it was held that Explanation to Section 73 will not be applicable to the commodity trading loss. As regards the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven in his impugned order:- Ground No.1 of this appeal is regarding the disallowance made by the A.O. u/s.14A read with 8D of Rs.1,38,48,506/-. It has been submitted by the A/R of the appellant that during the previous year they did not earn any exempted income. The appellant has relied on the decision of the Apex Court in the case of Chettinad Logistics Private Limited 95 Taxmann.com 250 (SC) for the proposition that no disallowance u/s.14A should be made when no exempt income has been earned. Further, the appellant has also relied on the decision of the jurisdictional High Court in the case of M/s Ashika Global Securities Ltd, ITAT 100 of 2014, order dated 11th June, 2018, for the proposition that no disallowance u/s.14A is warranted when no exempt income has been earned by the appellant. In this case, as submitted by the AIR, no exempt income has been earned. Respectfully following the above cited decisions of the Apex Court and the jurisdictional High Court, disallowance made by the AO of Rs.1,38,48,506/- is hereby deleted . 5. We have heard the arguments of both the sides and also perused the relevant material available on record. As agreed by the ld. Representatives of both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... depreciation on the software in the AYr.2013-14. On the same set of facts there can be no case for deviation on the stand taken by the AO in the earlier year. It has not been shown by the AO that there was any material difference in the facts in the impugned order. Depreciation has been allowed in AYr.2013-14. This year the allowance of depreciation is only consequential as the assets have already been put to use. Accordingly, the claim of the depreciation of Rs.46,05,806/- is hereby allowed . 9. We have heard the arguments of both the sides and also perused the relevant material available on record. As per the specific finding recorded by the ld. CIT(Appeals) in his impugned order, depreciation on computer software in question was allowed by the Assessing Officer himself in the assessment completed in assessee s own case for A.Y. 2013- 14 and there is nothing brought on record on behalf of the Department to rebut or controvert this finding of fact recorded by the ld. CIT(Appeals). As rightly submitted by the ld. Counsel for the assessee in this regard, when the depreciation was allowed by the Assessing Officer himself on software in question for the immediately preceding year, i.e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... treating them a speculative transaction. In this case, there is commodity trading loss of Rs.45,82,560/- and share trading loss of Rs.96,46,064/-. As regards the commodity derivative trading loss of Rs.45,82,560/-, the AR of the appellant has relied on the decision of the jurisdictional High Court in the case of Asian Financial Services Ltd 293 CTR 240 for the proposition that explanation to section 73 will not hit commodity trading loss. The Hon'ble High Court has held as under :- How can it be said that sub-sec. (5) of S. 43 is a general provision and the provision contained in S. 73 is specific in nature? On the contrary, the object of sub-s (5) of S. 43 is to define 'speculative business'. It would appear that the activities appearing in cls.(a) to (e) of proviso to s. 43(5) are not to be deemed to be speculative transactions. Therefore, this comes within the category of deemed business which is however distinct and separate from any other business. Now, the question is, whether loss arising out of such deemed business can be set off against the profit arising out of other business or business which may for clarity be called proper business. Under s.70, the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2,251/- which is much more than the business loss of Rs.20,49,919/-. Hence, purchase sale of share is not the dominant business. Therefore, respectfully following the decision of the jurisdictional High Court, in the case of Eastern Aviation Industries (Supra), the addition made by the AO of Rs.96,46,064/- is hereby deleted . 13. We have heard the arguments of both the sides and also perused the relevant material available on record. As regards the issue relating to the claim of the assessee regarding the loss in commodity transactions amounting to Rs.45,82,560/- being the normal business loss, it is observed that the same is squarely covered in favour of the assessee by the decision of the Hon ble Calcutta High Court in the case of Asian Financial Services Limited (supra), wherein it was held that Explanation to Section 73 will not be applicable to the commodity trading loss. As regards the share trading loss of Rs.96,46,064/- is concerned, it is observed that Explanation to Section 73 is held to be not applicable by the ld. CIT(Appeals) after having found that the income of the assessee from other sources was much more than its income from business. At the time of hearing before ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
