ARUN JAIN,MUMBAI vs. ASST CIT CIR 12(3), MUMBAI

Assessee by: Shri Anil Thakrar (AR) Department by: Shri Chaitanya Anjaria (DR) Date of Hearing: 30.08.2018 Date of Pronouncement: 19.09.2018 O R D E R

PER AMARJIT SINGH, JM:

1 In the facts and circumstances of the case the learned CIT (Appeals) erred in confirming addition of Rs.3,47,554/- under section 14. A r.w. Rule

8. D without considering the fact that the Assesses himself has disallowed the interest Expenditure and no ITA. No.368/M/2014 A.Y.2009-10 expenses were incurred for earning the Dividend Income.

2. In the facts and circumstances of the case the learned CIT (Appeals) erred in confirming the Addition of Rs.1,20.000/- under section 40 (a) (ia) of the Income Tax Act 1961. 3 In the facts and circumstances of the case the learned CIT (Appeals) erred in Confirming the disallowance of Rs.8,61,929/- on account of interest free Loans.

on or before the final hearing, if necessity so arises.”

3. The brief facts of the case are that the assessee filed its return of income on 30.09.2009 declaring total income to the tune of Rs.26,76,970/- for the A.Y 2009-10. The return was processed u/s 143(1) of the Act. Thereafter, the case was selected for scrutiny and statutory notices u/s 143(2) and 142(1) of the Act were issued and served upon the assessee. The assessee is engaged in the business of trading in steel, finance Derivatives. After certain disallowance, the assessment of the assessee was completed assessing the total income to the tune of Rs.41,65,450/-. The assessee filed an appeal before the CIT(A) who dismissed the appeal of the assessee, therefore, the assessee has filed the present appeal before us.

ISSUE NOS. 1 :- 4. Under this issue the assessee has challenged the confirmation of the disallowance of Rs.3,47,554/- u/s 14A r.w. Rule 8D of the Act. The Ld. Representative of the assessee has argued that the assessee’s

ITA. No.368/M/2014 A.Y.2009-10 own funds are more than the investment, therefore, no disallowance is required in view of provision u/s 14A r.w.Rule 8d of the Act. It is also argued that the assessee nowhere claimed expenses, therefore, in the said circumstances, no disallowance is required. However, on the other hand, the Ld. Representative of the Department has refuted the said contention. On appraisal of the record available on the file, we noticed that the assessee was also the proprietor of two or three concern and his own fund required verification at the end of the AO and the controversy is required to be adjudicated in view of the law settled in CIT Vs. Reliance Utilities (313 ITR 340). We also noticed that the Assessee nowhere claimed expenses in his return of income. Therefore, we are of the view that this aspect is also required to be examined at the end of AO. Both the points have not been discussed by the authority below. In the said circumstances, we set aside the finding of CIT(A) in question and restore the matter before the AO to decide the issue afresh by giving the opportunity of being heard to the Assessee in accordance with law Accordingly, we decide this issue in favour of the assessee against the revenue. ISSUE NOS. 2:- 5. This issue has not been pressed by the assessee, therefore, this issue is being decided in favour of the revenue against the assessee being not pressed.

ITA. No.368/M/2014 A.Y.2009-10 ISSUE NO 3:- 6. Under this issue the assessee has challenged the disallowance of interest to the tune of Rs.8,61,929/-. The contention of the assessee is that the assessee took the loan w.e.f. 24.08.2008, therefore, in the said circumstances the interest is liable to be calculated w.e.f. 21.08.2008 to 31.03.2009, therefore, the interest disallowance to the extent of 8,61,929/- is not justifiable and is liable to be corrected accordingly. However, on the other hand, the Ld. Representative of the Department has refuted the said contention. The assessee has reflected the loan given to M/s.Sunalco Alloys Pvt. Ltd. as non-interest bearing loan. The loan was given to the said concern on 21.08.2008 to 31.03.20089 in the books of account. The assessee did not receive any interest as on 31.03.2009. The Ld. Representative of the assessee nowhere argued in connection with that the disallowance of Rs.8,61,929/- but it is specifically argued that the interest should be calculated for the period of w.e.f. 21.08.2008 to 31.03.2009. This fact is required to be examined at the end of the AO. The interest is required to be calculated on the date when the loan has given to M/s.Sunalco Alloys P. Ltd. to upto 31.03.2009, therefore, in the said circumstances, we set aside the finding of the CIT(A) on this issue and restore this issue before the AO to decide the matter of controversy afresh to the calculate the interest w.e.f 21.08.2008 to 31.03.2009 in accordance

ITA. No.368/M/2014 A.Y.2009-10 with law. Accordingly, this issue is being decided in favour of the assessee against the revenue.