RAKESH S. RENIWAL,MUMBAI vs. DCIT CIR 3(1), MUMBAI

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ITA 7632/MUM/2014Status: DisposedITAT Mumbai03 August 2016AY 2009-103 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal found merit in the assessee's argument that investments not yielding dividends should be excluded when calculating average investments. The CIT(A)'s order was also found to be lacking in reasoning. Therefore, the issue was remanded back to the CIT(A) for fresh adjudication.

What were the facts?

The assessee, engaged in investment and financing, declared dividend and long-term capital gains as exempt income. The Assessing Officer (AO) disallowed Rs. 2,41,294 under Section 14A read with Rule 8D(2)(iii), considering the assessee's suo moto disallowance of Rs. 17,438 inadequate.

What were the issues?

The primary issue was the correctness of the disallowance made under Section 14A read with Rule 8D(2)(iii), specifically concerning the calculation of average investment for disallowance purposes.

Which sections of the Income-tax Act were involved?

Section 14A,Section 250(6)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “SMC” BENCH, MUMBAI

Before: SHRI D. KARUNAKARA RAO

Hearing: 21.06.2016Pronounced: 03.08.2016

सुनवाई की तायीख / Date of Hearing : 21.06.2016 घोषणा की तायीख /Date of Pronouncement : 03.08.2016 आदेश / O R D E R

PER D. KARUNAKARA RAO, AM:

1.

This appeal filed by the assessee on 23.12.2014 is against the order of the CIT (A)-7, Mumbai dated 29.9.2014 for the assessment year 2011-2012. In this appeal, assessee raised three grounds in toto and they revolve around the disallowance made u/s 14A of the Act read with Rule 8D(2)(iii) of the IT Rules, 1962.

2.

Briefly stated relevant facts of the case are that the assessee is engaged in the business of „investment and financing‟ and filed the return of income declaring the total income of Rs. 43,14,335/-. Assessment was completed u/s 143(3) of the Act and the assessed income was determined at Rs. 45,55,629/- which includes the disallowance of Rs. 2,41,294/- which is the subject matter of the present appeal. In the assessment, AO noticed that assessee earned dividend income of Rs. 47,21,736/- and long term capital gains of Rs. 8,02,853/- and the same are claimed as exempt income u/s 10 of the Act. Further, AO noticed that the assessee suo moto disallowed a sum of Rs. 17,438/- u/s 14A of the Act. After considering the submissions of the assessee in this regard, AO came to the conclusions that the suo moto disallowance made by the assessee is not in accordance with the Rule 8D(2) of the IT Rules, 1962 and worked out the disallowance at Rs. 2,41,294/- after deducting the assessee‟s disallowance of Rs. 17,438/-. Aggrieved with the said addition made by the AO, assessee carried the matter in appeal before the first appellate authority.

3.

During the proceedings before the first appellate authority, after considering the submissions of the assessee, CIT (A) restricted the disallowance to Rs. 1,45,080/- ie 0.5% of the average value of the investment. Again aggrieved with the said decision of the CIT (A), assessee is in further appeal before the Tribunal.

4.

During the proceedings before the Tribunal, none appeared on behalf of the assessee.

5.

On the other hand, Ld DR for the Revenue relied on the orders of the Revenue Authorities.

6.

I have heard Ld DR for the Revenue and perused the orders of the Revenue Authorities as well as the relevant material placed before me. The core issue before me is the correctness of the disallowance u/s 14A r.w. Rule 8D(2)(iii) of the IT Rules, 1962.. On perusal of the AO‟s order, I find, while calculating the average investment, AO included the investments which have never yielded dividends during the year under consideration. It is the case of the assessee that the investments which are not yielded any dividend income, are required to be excluded for calculating the average investments before applying the 0.5% of the average investments for calculating the disallowance under the provisions of Rule 8D(2)(iii) of the IT Rules, 1962. I find merit in the same. As such, CIT (A) has not passed a speaking order giving the reasons for calculating the average investment, before 0.5% is applied. Further, CIT (A) did not distinguish the cases relied on by the assessee. Therefore, considering the above, I am of the opinion that the issue is required to be remanded to the file of the CIT (A) for applying the law stands today and adjudicate the issue afresh after granting a reasonable opportunity of being heard to the assessee as per the set principles of natural justice. CIT (A) is also directed to pass a speaking order in accordance with the provisions of section 250(6) of the Act. Accordingly, grounds raised

by the assessee are allowed for statistical purposes.

7. In the result, appeal of the assessee is allowed for statistical purposes.

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