ADDL CIT RG 1(2), MUMBAI vs. MONEY MATTERS (INDIA) P.LTD, MUMBAI

order s,dated 20/11/12 and 29/11/2012 of the CIT(A)-2, Mumbai the Assessing Officer (AO)has filed appeals for the above mentioned two assessment years (AY.s).As the issues are almost identical for both the years, so,we are adjudicating both the appeals by a common order.Assessee-company is engaged in the business of trading and investing in shares and securities as well as in financial consultancy. The details of dates of filing of return, returned income, assessed income etc.,can be tabulated as under:- A.Y. ROI filed on Returned Income Assessment dt. Assessed Income 2008-09 25.09.2008 Rs.30.19 crores 29.12.2010 Rs.48.70crores 2009-10 29.9.2009 Rs.59.65 crores 29.12.2011 Rs.59.78 crores ITA/1019/Mum/2013-AY.2008-09:- 2.First Ground of appeal is about deleting the addition made by AO u/s. 68 of the Act, amounting to Rs.2.25 crores,on account of preference share capital issued. During the assessment proceedings,the AO found that the assessee had introduced funds of Rs.2.25 crores by way of issue of preference shares.He called for detail in that regard.After considering the same he observed that 5,62,500 prefernce shares were issued to Swadhinta Investments P.Ltd. @ Rs.10/- per share, that assessee had received share premium of Rs.1.68 crores @ Rs.30 per share. The AO held that the share holding pattern of Swadhinta indicated that one person was also one of the share holders of the company,that the other share holder was group concerns of the assessee-company ,that Swadhinta was a paper company through

1019&20/M/13-Money matters(08-09&09-10) which funds had been introduced by the Company.Finally,he made an addition of Rs.2.25 crores to the total income of the assessee. 2.1.Aggrieved by the order of the AO,the assessee preferred an appeal before the First Appellate Authority(FAA).It relied upon several case laws.Certain additional evidences were also filed before him.Vide its letter dated 07/09/2011,the FAA called for a remand report from the AO, who submitted same on 25/01/2012. The assessee filed rejoinder after copy of remand report was made available to it. The FAA after considering available material held that during the remand proceeding the AO had thoroughly analysed evidences , that he had given a finding that the identity, genuineness and creditworthiness of the subscribers of the preference share capital stood proof. Considering the remand report of the AO the FAA deleted the addition made by AO. 2.2.During the course of hearing before us the Departmental Representative (DR) stated that mater could be decided on merits. The Authorised Representative (AR) supported the order of the FAA. We have heard the rival submissions and perused the material before us. We find that in his remand report, the AO had held that there was no doubt of the transaction, identity of the creditor or the credit worthiness of the lenders, that the FAA had deleted the addition on the basis of remand report of AO, that he had forwarded the additional evidences to the AO.If the AO himself had admitted that the assessee had proved the genuineness of the transactions and other ingredients for not attracting the provisions of section 68 of the Act, then where was the justification for filing the appeal before the Tribunal.We do not see any factual or legal infirmity in the order of the FAA and therefore, dismiss the first Ground, raised by the AO.

3.Second ground of appeal deals with deleting the addition of Rs.14.89 crores as unexplained cash credit made u/s.68 on account of unsecured loans. During the assessment proceedings the AO added Rs.14,89,08,059/-to the total income of the assessee holding the same as unexplained cash credits.He made enquiries with various creditors and arrived at the conclusion that the disputed amount, was hit by the provisions of section 68 of the Act. Accordingly, he made the addition as stated earlier. 3.1.During the appellate proceedings the assessee filed details about the creditors and called for a remand report. After considering the same he held that all the creditors were having PAN, that the AO had listed the sources, all sources for giving loan to the assessee, that he had given a categorical finding that all the creditors except one were having sufficient funds to advance loans, that in case of remaining one creditor the assessee had filed bank statement 2

1019&20/M/13-Money matters(08-09&09-10) indicating that the money was received through banking channel, that the AO during the course of assessment proceedings could not carryout proper verification, that during remand proceedings he had given a categorical finding that the transaction in question were genuine. The FAA deleted the addition made by the AO. 3.2.The DR left the issue to the Bench and the AO supported the order of the FAA. As the order of the FAA is based on remand report of AO, therefore, we do not see any justification for disturbing the same.Upholding his order,Ground No.2 is decided against the AO.

4.Third Ground is about deleting the addition of Rs.33.43 lakhs on account of interest paid to various parties. During the year under consideration the assessee had incurred net interest expenses of Rs.2.65 crores, that same had been debited in the P&L account under the head financial charges. The AO disallowed interest expenses of Rs.33,84,562/- on the ground that the said interest payment were made to paper companies . 4.1.In the appellate proceedings it was argued that interest was paid to creditors who had advanced loans to assessee and that the transactions were not in doubt. After considering the available material the FAA held that there was no justification to disallow interest expendi - ture,that the interest was paid to creditors who’s genuineness was accepted by the AO.He directed the AO to delete the interest expenditure of 33.84 lakhs. 4.2.In the earlier paragraphs while endorsing the order of the FAA,we have held that the loan transactions were genuine.Therefore, in our opinion,there was no justification in making disallowance under the head interest expenditure for the said creditors.Third Ground stands dismissed.

5.Fourth Ground is about addition made by AO u/s. 14A r.w.Rule 8D of the Income tax Rules, 1962. During the assessment proceedings the AO found that the assessee had shown dividend income of Rs.25.75 lakhs and had claimed it as exempt, that it had made a suo moto disallowance of Rs.8.77 lakhs. He directed it to submit a note on 14A disallowance.As per the AO the assessee did not file any submission in that regard. He held that earning of exempt income would involve investment of funds and manpower cost, that a proportionate disallowance had to be worked out. He made disallowance of Rs.19.19 lakhs and Rs.11.99 lakhs under the heads interest disallowance and average investments respectively. As the assessee had, on its own, made a disallowance of Rs.8,77,054/-, so, he made a disallowance of Rs.1.04crores to the income of the assessee .

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5.1.Aggreived by the order of the AO, the assessee preferred an appeal before the FAA and made detailed submissions. He directed the assessee to establish the direct nexus between the non- interest bearing funds and the investment in tax exempt income. That the assessee could not file details in that regard, so, he held that tax free investments were made out of the common funds, that interest expenditure had to be worked out as per Rule 8D (2)(ii) of the Rules. Referring to the matter of Delight Enterprises (ITA/No.110 of 2009, dt.26/2/2009) of Hon'ble Bombay High Court he held that no disallowance u/s. 14A was to be made with regard to tax free investment from which no exempt income was earned during the year under appeal.Accordingly, he directed the AO to exclude the tax free investment from which no exempt income was earned from the numerators in the calculation u/r 8D (2)(ii) and 8D(2)(iii) of the Rules.He further directed the assessee to produce necessary details/ documents to calculate the disallowance. 5.2.Before us, the DR stated that matter could be decided on merits. The AR stated that assessee had not challenged the order of the FAA. We find that the FAA had not deleted the entire addition, that he had followed the judgment of Hon'ble Jurisdictional High Court and had directed he AO to recalculate the disallowance,that he had instructed assessee to file necessary details .In our opinion there is no need to disturb his finding, therefore, confirming his order we decide Ground No.4 against the AO.

6.Last Ground of appeal is related to treatment of Rs.18.87 crores i.e. as to whether the profit arising on sale of securities should be assessed under the head business income or income from Short term Capital Gain (STCG). 6.1. The AO found that the assessee had shown STCG of Rs.18,87,49,132/-,that it had shown speculation profit of Rs.10.13 crores on intra-day trading, that it had borrowed funds to the tune of Rs.9.25 crores, that the assessee was actively involved in trading of shares. Vide his show cause notice dated 20.12.2010 he asked the assessee as to why the STCG should not be treated as business income.After considering the submission of the assessee, he held that it had shown sales of shares worth Rs.154.91 crores,that it had purchased shares amounting to Rs.180.58 crores, that it was not possible to ascertain as to whether the purchases were for investment or for trading, that the claim by the assessee to treat the income under STCG was only a ploy to pay less tax as against normal rate of tax. Accordingly, he disallowed the STCG of Rs.18.87 crores and treated the same as business income from trading in shares.

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6.2.During the appellate proceedings the assessee argued that shares held as investments were separately accounted in the books of account, that the income arising on sale of such investment was shown under the head capital gains, that it had maintained two portfolios i.e., investment portfolio and business portfolio, that investment in the first category of shares was made to earn dividend and for capital appreciation, that the investment portfolio was never reflected as stock-in-trade in the audited accounts, that it would maintain separate accounts for both the activities, some of the shares held as investment were sold during the year under consideration, that the resultant gain was offered as STCG. It referred to the Cir No.4 of 2007 dt.15.6.2007 issued by the CBDT and relied upon several case laws. The FAA called for a remand report in this regard also. After considering the submissions of the assessee and the order/remand report of the AO he held that assessee was having two kinds of portfolios, that upto AY 2007-08 the AO had accepted the existence of two portfolios, that during the year under appeal the AO had taken a different view,that the intention of the s was eh deciding factor for resolving the issue, that in the books of account and B/sheet the assessee had maintained closing stock under two portfolio i.e., closing stock of trading assets and stock of investments, that the closing stock of trading in shares was valued at cost or market price whichever was lower, that the investment portfolio was valued at cost, that the assessee had maintained certain yardstick to identify the investment/stock-in-trade, that the judicial decisions derived from assessee supported the view that assessee could maintain two portfolios. The FAA referred the case of Gopal Purohit (228CTR582) and held that the assessee company had a clear demarcation to distinguish between investment and trading and held that claim made by it that the income should be assessed as STCG was justified. He directed the AO to treat the gain as of Rs.18.87 crores as STCG. 6.3.Before us, the DR stated that matter could be decided on merits. The AR supported the order of the FAA. We find that the assessee as maintaining two separate portfolios, that in the books of account closing stock was shown under two heads i.e. stock in trade and investment, that the AO had accepted the fact that assessee was having two portfolios ,that in earlier and subsequent years he had assessed the income under both the heads.Considering these facts and respectfully following the judgment of Gopal Purohit(supra),we hold that order of FAA does not suffer from any legal or factual infirmityWe decide last Ground of appeal against the AO.

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7.The AO had raised three Grounds of appeal and same deal with (i) treating the income from sale of share under the head business income /STCG, (ii)unexplained cash credit and (iii) disallowance u/s. 14A r.w.r. 8D of the rules.While deciding the appeal for the earlier year we had adjudicated identical issues. Following the same, we dismiss all the three grounds raised by the AO, as tax for both the years are almost similar.

8.Before departing,we will like to mention that we are unable to understand as to why the appeals were filed.The FAA had decided most of the issues after considering the Remand Reoprt filed by the AO.So,what was the need to file or authorise the appeal.It is clear that the Pr.CIT/CIT had authorised the appeal, without going through the order of the FAA,in a very mechanical manner.Times and again CBDT is directing the officer of field formation not to file unnecessary appeals and to reduce the litigation.The appeals before us fall in the category of unnecessary litigation.We hope that in future such appeals will not be filed to waste the time of the DR.s and the Tribunal.