No AI summary yet for this case.
Income Tax Appellate Tribunal, “E”, BENCH MUMBAI
Before: SHRI N.K.BILLAIYA, AM & SHRI SANJAY GARG, JM
O R D E R आदेश आदेश Per Sanjay Garg, Judicial Member : The revenue has filed this appeal against the order of Commissioner of Income Tax (Appeals)-13 [hereinafter referred to as the CIT(A)] , Mumbai, dated 22-8-2013, for the assessment year 2009-10.
The Revenue, in this appeal, is aggrieved by the action of the CIT(A) in restricting the disallowance u/s.14A r.w.Rule 8D(2)(i) at Rs.69,063/- as against disallowance of Rs.30,57,179/- made by the AO.
The facts in brief are that during the relevant previous year, the assessee received exempt income being dividend of Rs.37,942/-. During the course of assessment proceedings, the AO asked the assessee as to why the disallowance of interest and other expenditure should not be made u/s.14A. In response to this, the assessee filed his reply, however, the AO was not satisfied with the explanation of the assessee in this regard and disallowed Rs.30,57,179/-. In appeal, the CIT(A) restricted the disallowance to Rs.69,063/- observing as under :-
“ 6. The appellant has submitted that details were given to the AO in the form of Annexure-3 which shows that the shares were stock-in-trade which are mostly derivatives. However, a copy of annexure-3 was not filed by the appellant. In view of this, I have gone through the assessment folder and noted that AO vide order sheet notice dated 24.11.2011 given the opportunity to the assessee for substantiating the claim that shares were stock in trade. The assessee vide letter dated 25.11.2011 has furnished the same by giving details of stock statement. However, there is no bifurcation of the same as investment and stock-in-trade. In view of this, it cannot be derived that appellant has not incurred expenses towards earning of dividend on its investments. The appellant fails on this count. 6.1 Now coming to the alternative submissions of that out of total Securities Transaction Tax (STT) of Rs.30,17,923/- paid for derivatives itself is Rs.29,47,477/- and it is only STT of Rs.69,063/- which pertains the transactions of sale or purchase of shares and which have not been treated as stock-in-trade by the appellant also. In view of this, I am in agreement with the appellant in principle that STT relating to share transaction only at the most can be disallowed u/r 8D r.w.s14A. Accordingly, AO directed to reworkout disallowance u/r.8D by taking STT of Rs.69,063/- which is directly related to share transaction on which dividend has been earned. In the result, ground No.3 is partly allowed.”
We have considered the rival submissions of both the parties and carefully gone through the orders of revenue authorities. The Ld. A.R. has relied upon the decision of the Hon’ble Bombay High Court in the case of “CIT vs. India Advantage Securities Ltd.” in of 2013 vide order dated 17.03.2015 wherein the Hon’ble Bombay High Court has upheld the finding of the Tribunal holding that while making the disallowance under rule 8D, the shares held as stock in trade should not be considered, only the shares taken as investment in the account be considered for computation of disallowance of expenditure under rule 8D.
The Ld. A.R. has submitted that the dividend earned in respect of shares held in stock in trade is incidental to the business of the assessee and the investment in the shares held as stock in trade was not made for earning of exempt income.
We find that this Tribunal in the case of “DCIT vs. India Advantage Securities Ltd.” in vide order dated 14.09.2012 while relying upon the decision of the Hon’ble Kerala High Court in the case of “CIT vs. Smt. Leena Ramachandran (339 ITR 296) and further on the decision of the Hon’ble High Court of Karnataka in the case of “CCL Ltd. vs. JCIT” 250 CTR 291 has held that disallowance under section 14A in relation to dividend received from trading shares cannot be made. The said finding of the Tribunal has been upheld by the Hon’ble Jurisdictional Bombay High Court in the case of “CIT vs. India Advantage Securities Ltd.” in ITA No.1131 of 2013 vide order dated 17.03.2015 (supra). The said decision holds binding precedent upon this Tribunal.
In view of the above, it cannot be said that the STT paid by the assessee for shares held in stock in trade is liable to be considered for disallowance of direct expenditure under rule 8D2(1) of the Act. The said STT paid by the assessee was in relation to the share trading business of the assessee. We, therefore, do not find any infirmity in the order of the Ld. CIT(A) in restricting the disallowance of direct expenditure to the extent of STT paid in relation to the shares held as investment.
Therefore, there is no merit in the appeal of the Revenue and the same is hereby dismissed.
Order pronounced in the open court on this 04/11/2015.
Sd/- Sd/- N.K.BILLAIYA SANJAY GARG लेखा सद�य लेखा सद�य / ACCOUNTANT MEMBER लेखा सद�य लेखा सद�य �या�यक सद�य �या�यक सद�य �या�यक सद�य / JUDICIAL MEMBER �या�यक सद�य मुंबई Mumbai; �दनांक Dated 04/11/2015 �.कु.�म/pkm, �न.स/ PS आदेश आदेश क� आदेश आदेश क� क� ��त�ल�प क� ��त�ल�प ��त�ल�प अ�े�षत ��त�ल�प अ�े�षत अ�े�षत/Copy of the Order forwarded to : अ�े�षत 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent. 3. आयकर आयु�त(अपील) / The CIT(A), Mumbai. 4. आयकर आयु�त / CIT