ACIT, PANIPAT vs. SHRI ANIL DUTT, PANIPAT

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘G’, NEW DELHI Before Sh. G. C. Gupta, Hon’ble Vice President And Sh. O.P.Kant, Accountant Member ITA No.196/Del./2009 Asstt. Year : 2005-06 Asstt. Commissioner Vs Shri Anil Dutt, of Income Tax, Circle, C/o. M/s. Vogue Fabrics, Panipat Opposite BBMB, Sewah, G.T. Road, Panipat. (APPELLANT) (RESPONDENT) PAN No. ITA No.197/Del./2009 Asstt. Year : 2005-06 Asstt. Commissioner Vs Shri Sunil Dutt, of Income Tax, Circle, C/o. M/s. Vogue Fabrics, Panipat Opposite BBMB, Sewah, G.T. Road, Panipat. (APPELLANT) (RESPONDENT) PAN No. ITA No.216/Del./2009 Asstt. Year : 2005-06 Shri Sunil Dutt, Vs Asstt. Commissioner of C/o. M/s. Vogue Income Tax, Circle, Panipat Fabrics, Opposite BBMB, Sewah, G.T. Road, Panipat. (APPELLANT) (RESPONDENT) PAN No. Appellant by : Sh. Sujit Kumar, Sr. DR Respondent by : Sh. Sandeep Supra, Adv

ITA No.196&197/Del/2009 2 Date of Hearing : 29.09.2015 Date of Pronouncement :08.10.2015 ORDER PER O.P. Kant, AM Out of these appeals, first appeal is of the Revenue, which is directed against order dated 04.11.2008 of the learned Commissioner of Income-tax (Appeals), Karnal. Second and third appeals are cross appeals of the Revenue and the assessee, which are directed against another order dated 04.11.2008 of the learned Commissioner of Income-tax (Appeals), Karnal. Both impugned orders dated 04.11.2008 are in respect of Assessment Year 2005-06. Facts and circumstances of both the cases in appeal are similar. The grounds raised by the Revenue in first and second appeals are also identical except amount involved. In view of above, these appeals are decided by a consolidated order for the sake of convenience. 2. The Revenue in ITA No. 196/Del/2009 has raised following grounds:- “1. On the facts and in the circumstances of the case, the Commissioner of Income tax (Appeals) has erred in law in allowing loss claimed as business loss on the sale of securities to the extent of Rs.31,10,110/-. 2. On the facts and in the circumstances of the case, the Commissioner of Income tax (Appeals) has erred in law in reducing the disallowance of expenses from Rs.l,33,682/- to Rs.25,000/- in view of the provisions of section 14A the Income tax Act, 1961.” 3. The Revenue in ITA No. 197/Del/2009 has raised following grounds:

ITA No.196&197/Del/2009 3 “1. On the facts and in the circumstances of the case, the Commissioner of Income tax (Appeals) has erred in law in allowing loss claimed as business loss on the sale of securities to the extent of Rs.1,22,34,535/-. 2. On the facts and in the circumstances of the case, the Commissioner of Income tax (Appeals) has erred in law in reducing the disallowance of expenses from Rs.l,33,682/- to Rs.50,000/- in view of the provisions of section 14A the Income tax Act, 1961.” 4. The assessee in ITA No. 216/Del/2009 has raised following grounds:- “l. That the Assessing Officer has erred in law & facts in disallowing business expenditure to the extent of Rs.3,99,492/- by wrongly linking it with Tax free interest income of the assessee and the Ld C.I.T (Appeals) has un-judiciously confirmed the same to the extent of Rs.50,000/-. 2. That the Assessing officer has arbitrarily & without any basis disallowed interest expenses of Rs.4,02,772/- and the Ld C.I.T (Appeals) has failed to properly consider and adjudicate the same. 3. That the Assessing officer without properly appreciating the factual position has arbitrarily increased the interest income of the assessee by Rs.9,15,192/- and the Ld C.I.T (Appeals) has erred in confirming the same.” 5. Now, first we take up the Revenue‟s appeal in ITA No.196/Del/2009. 6. The facts in brief as culled out from the orders of the lower authorities are that the assessee was engaged in sale and purchase of securities including Government securities. In the return of income filed for the previous year relevant to the assessment year, the assessee has shown taxable income of Rs.36,89,164/- along with exempted income of Rs.31,30,110/- from the dividend and Rs.38,38,304/- from interest on tax free

ITA No.196&197/Del/2009 4 bonds. The case of the assessee was selected for scrutiny. In the course of the scrutiny proceedings, the learned Assessing Officer noticed that the assessee had sold units of SBI Mutual Fund for Rs.79,10,623/- on 29.03.2005, which were purchased for Rs.1,10,00,000/- on 27.12.2004 , resulting into a loss of Rs.30,89,377/-. The assessee also earned a dividend income of Rs.31,10,110/- on these units, which was claimed exempt income u/s 10 of the Income Tax Act, 1961 (in short „the Act‟). The learned Assessing Officer (in short „AO‟) passed assessment order u/s 143(3) of the Act on 31.12.2007. In view of the provisions of section 94(7) of the Act in his order, the learned Assessing Officer disallowed loss to the extent of dividend income of Rs.31,10,110/- out of loss from purchase and sale of securities/ mutual fund and allowed the balance loss. The ld.AO also made disallowance of Rs.1,33,682/- in terms of section 14A of the Act for expenditure incurred towards earning tax-free income. 7. Aggrieved, the assessee filed an appeal before the learned Commissioner of Income-tax (Appeals) [in short „CIT(A)‟], who allowed the loss of Rs.31,10,110/- and reduced the disallowance u/s 14A of the Act from Rs.1,33,682/- to Rs.25,000/-. Aggrieved, with the above findings of the ld.CIT(A), the Revenue has preferred this appeal before us. 8. The learned Senior Departmental Representative ( in short „Sr. DR‟) relying on the order of the ld.AO, narrated the facts

ITA No.196&197/Del/2009 5 of purchase and sale of mutual fund and submitted that the intention of the assessee was to stay in said mutual fund for a short period only. He further stated that activity of purchase and sale of shares being already held as business activity, the loss should not be allowed. On the other hand, the learned Authorised Representative (in short „AR‟) submitted that there was no dispute as regards to activity of purchase and sale of securities carried out by the assessee held as trading activity, but he contended that loss has been disallowed invoking section 94(7) of the Act by the ld. AO, which is not applicable in the case of the assessee, being purchase of mutual funds under reference beyond three months from the record date of dividend, and therefore the ld.CIT(A) has rightly allowed the loss as per finding given at page 6 of his order . The ld.AR also relied on the judicial pronouncement reported in 325 ITR 550 (Bombay), 310 ITR 421 (Bombay) and 325 ITR 535 (Del). . 9. We have heard the rival submissions and perused the material on record including the orders of the lower authorities. The issue which arises for our consideration in ground No.1 of the Revenue, is whether the provisions of section 94(7) are applicable in respect of loss claimed by the assessee. For the sake of clarity, the provisions of section 94(7) of the Act are reproduced as under:- “Where— (a) any person buys or acquires any securities or unit within a period of three months prior to the record date;

ITA No.196&197/Del/2009 6 (b) such person sells or transfers— (i) such securities within a period of three months after such date; or (ii) such unit within a period of nine months after such date; (c) the dividend or income on such securities or unit received or receivable by such person is exempt, then, the loss, if any, arising to him on account of such purchase and sale of securities or unit, to the extent such loss does not exceed the amount of dividend or income received or receivable on such securities or unit, shall be ignored for the purposes of computing his income chargeable to tax.” 10. Perusal of above provisions makes it clear that for falling any loss from purchase and sale of securities in the ambit of section 94(7) of the Act, all the three conditions (a), (b) and (c) must be fulfilled simultaneously. If any of the conditions is not fulfilled, the loss will not be hit by the section. 11. Now, let us examine whether the assessee falls in net of all the three conditions of the section 94(7) of the Act. In the instant case, the assessee has purchased units of SBI Mutual Fund on 27.12.2004 and the same were sold on 29.03.2005. The record date of dividend in the case of SBI Mutual fund for the relevant year was 28.03.2005. Based on these dates, the ld. AR submitted a chart of calculation of no. of days of purchase of securities from the record date of dividend, according to which, the purchase of securities is 91 days before the record date of dividend. The Sr DR has also not disputed this calculation. In background of these facts, it is evident that units have been

ITA No.196&197/Del/2009 7 purchased 91 days before the record date of dividend. As the units have been acquired by the assessee beyond a period the three months from the record date, the condition (a) of section 94(7) of the Act is not fulfilled. For disallowance of loss u/s 94(7) of the Act, all the three conditions have to be fulfilled simultaneously. As all the three conditions of section 94(7) are not fulfilled, we hold that loss of sale of securities to the extent of dividend income of Rs.31,10,110/- cannot be disallowed or ignored invoking provisions of section 94(7) of the Act in the case of the assessee. Same view has also been upheld in the case of CIT Vs. Alka Bhosle by the Hon‟ble Bombay High Court, reported in 325 ITR 550. In other two cases relied upon by the ld.AR also similar view has been expressed. In view the above, we are of opinion that there is no error in the findings of the CIT(A) on this issue. Accordingly, this ground of the Revenue is dismissed. 12. In ground No.2, the Revenue has challenged the action of the CIT(A) in reducing disallowance of expenses u/s 14A of the Act from Rs.1,33,682/- to Rs.25,000/-. The facts in this regard are that the assessee, alongwith taxable income of Rs.36,89,164/- shown interest income of Rs.38,38,034/- on tax free bond, which was claimed as exempted. The assessee also claimed total expenditure of Rs.3,62,134/- in profit and loss account. The ld.AO disallowed expenditure of Rs.1,33,682/- in terms of section 14A of the Act, out of the total expenses of

ITA No.196&197/Del/2009 8 Rs.3,62,134/- claimed by the assessee in profit and loss account, in proportion of interest income from tax free bond to the total income. Before the CIT(A) the assessee submitted that no expenses were incurred in respect of earning tax free interest income except expenses on receiving of cheques of tax free income on half yearly or annual basis and deposit of the same into the bank and also placed reliance on the cases of Jubilant Enpro Ltd. Vs. CIT (2007) 12 SOT 194 (Delhi) and CIT Vs. Eicher Ltd. (2007) 160 Taxmann 80 (Mad). After considering submissions of the assessee, the CIT(A) reduced the disallowance from Rs. 1,33,682/- to Rs.25,000/-. 13. At the time of hearing before us, the Sr. DR relied on the order of the ld.AO, whereas, the ld. AR placed his reliance on the order of the ld. CIT(A) and submitted that the assessment year being prior to AY 2008-09, the Rule 8D of the Income-tax Rules was not applicable in the case of the assessee. He further submitted that the learned CIT(A) has already confirmed a reasonable amount of expenses. 14. After considering the rival submissions, we are of the opinion that the disallowance upheld by the ld. CIT(A) is justified in view of the nominal expenses incurred by the assessee towards earning of interest from tax free bond and other exempted income. Therefore, no interference is required in the findings of the CIT(A) on this issue. The ground of the Revenue is accordingly dismissed.

ITA No.196&197/Del/2009 9 15. In the result, the appeal of the Revenue is dismissed. 16. Now, we take up the appeal of the Revenue in ITA No.197/Del/2003. 17. The grounds No. 1 and 2 of appeal raised by the Revenue are identical to the grounds of appeal raised by the Revenue in ITA No.196/Del/2003. The facts of the case in hand are also similar to the case in ITA No.196/Del/2003 Therefore, following the findings given in appeal in ITA No.196/Del/2003, both the grounds of the Revenue are dismissed. 18. Now, we take up the appeal of the assessee in ITA No.216/Del/2003.. 19. Ground No.1 of the appeal of the assessee is covered by findings given in ground No.2 of the Revenue‟s appeal in ITA No.197/Del/2003. Since ground No. 2 of the Revenue‟s appeal has already been dismissed, therefore, ground No. 1 of the assessee‟s appeal is hereby allowed. 20. The ld. AR did not press the Ground No.2 of the appeal, so it is not required any adjudication, and therefore, this ground of the appeal is dismissed. 21. In respect of ground No.3 of the assessee, the facts in brief as culled out from the orders of lower authorities are that in the return of income filed, the assessee claimed tax deducted at source ( TDS) of Rs.10,64,364/- on interest income and offered interest income of Rs.88,30,929/-. The ld.AO was of the view that corresponding to the claim of the TDS of

ITA No.196&197/Del/2009 10 Rs.10,16,364/- at the prescribed rate of TDS, the assessee‟s income from interest should have been at Rs.97,46,121/- and therefore he added balance interest of Rs.9,15,192/-. The claim of the assessee that the TDS certificate issued by “Neelachal Ispat Nigam Limited”, Bhubaneswar has been given in excess by Rs.8,45,753/- was not accepted by the ld. AO. The ld. CIT(A) confirmed the action of the ld.AO by holding that the assessee has claimed excess TDS credit therefore, interest to the extent of TDS claimed was taxable in the hands of the assessee. 22. At the time of hearing before us, the ld. AR submitted that matter may be restored back to the file of the ld. AO for verification of TDS certificate issued by the „Neelachal Ispat Nigam Limited‟. On the other hand, the Sr. DR supported the order of the lower authorities. 23. We have heard the rival submission and perused the material on record and we are of the view that it is a matter of verification of the TDS certificate and if TDS has been deducted in excess by a particular deductor and the same has been deposited in the Government Account, the assessee cannot be faulted for that. In view of the above, we remit this matter back to the file of ld.AO and direct him to verify the facts of tax deducted and interest recorded in the TDS certificate. The ld. AO may also verify the TDS and corresponding interest income from the records of the Income-tax Department. If he finds that the submission of the assessee is correct, the assessee may be

ITA No.196&197/Del/2009 11 allowed relief accordingly. Accordingly, this ground of the assessee is allowed for statistical purposes. 24. In the result the appeal of the assessee partly allowed for statistical purposes. Order Pronounced in the Court on 08/10/2015. -Sd/- -Sd/- (G.C. Gupta) (O.P.Kant) VICE PRESIDENT ACCOUNTANT MEMBER Dated:08/10/2015 *Ajay* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5.DR: ITAT ASSISTANT REGISTRAR