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2015 (6) TMI 169 - AT - Income TaxDisallowance of STT payment - CIT(A) allowed part relief - Held that:- The AO has disallowed the relief to the assessee only on the technical ground of delay in filing the revised return. It is pertinent to note that the AO has to assess the correct income of the assessee on the basis of the provisions of the Act and in case if the assessee inadvertently has offered the higher income the same cannot be taxed by taking the excuse of technicalities. Even otherwise there is no restriction on the jurisdiction and the power of appellate authority to consider a fresh plea in view of the judgment of Hon’ble Supreme Court in the case of “National Thermal Power Co. Ltd. vs. CIT” [1996 (12) TMI 7 - SUPREME Court]. Accordingly, we do not find any error or illegality in the order of Ld. CIT(A) in allowing the correct amount of STT claimed by the assessee in the revised return of income. - Decided against revenue. Disallowance of excess donation paid on the basis of revised return - Held that:- Since on merits the AO has not disputed the claim of the assessee, therefore we do not find any error or illegality in the order of the Ld. CIT(A) in allowing the correct figure of donation paid by the assessee in the revised return of income. - Decided against revenue. Disallowance of bad debts - Held that:- The relevant finding of the AO and submitted that the Board of Directors of the assessee has approved the bad debts in the meeting held on 30.04.07, therefore the resolution is subsequent to the financial year closed on 31.03.07. We further note that the amount of bad debts written off represents the loan in the ordinary course of business of money lending which is carried on by the assessee, therefore when the interest on the said amount is offered to tax, then in view of the judgment of Hon’ble Jurisdictional High Court in the case of “CIT vs. Shreyas S. Morakhia” [2012 (3) TMI 103 - BOMBAY HIGH COURT] the same is allowable as business loss. Accordingly, we do not find any merits in the grounds raised by the Revenue when the bad debts were actually written off by the assessee being unrecoverable and it is regarding the advance given by the assessee in the business of money lending. - Decided against revenue. Disallowance of loss of commodity futures by treating as speculation loss - Held that:- This ground is covered against the assessee by the decision of this Tribunal of “Varsha Corporation Ltd. vs. DCIT” [2015 (6) TMI 124 - ITAT MUMBAI] wherein held provisions of clause (e) of the proviso to Section 43(5) did not exist during the period when the assessee carried out the transactions. Decided against assesse. Adjustment for computing book profit under section 115JB on account of bad debt disallowance - Held that:- In view of our findings on the ground No.3, this ground of the Revenue’s appeal is dismissed. Even otherwise when the assessee has actually written off the bad debts in the books of account, then no adjustment can be made while computing the book profit under section 115JB as this amount does not represent any provision on account of bad debts. - Decided against revenue. Disallowance of depreciation and boat expenses - Held that:- Except the year under consideration the AO has accepted the claim of the assessee on account of depreciation and other expenses on boat. When there is no change in facts and circumstances in this year under consideration, then the AO has to maintain the rule of consistency. Accordingly, we do not find any error or illegality in the order of the Ld. CIT(A) for this issue - Decided against revenue. Disallowance of loss on share trading by treating the same as speculation loss - Held that:- The gross total income for the purpose of explanation to section 73 of the Act shall be the aggregate income prior to giving the setting off under chapter VI of the Act. The authorities below have not dealt with this issue to give an factual finding about the allowable business loss and unabsorbed depreciation as well as the legal point whether the gross total income under the head ‘Business and profession’ has to be computed after giving effect to the setting off of brought forward business loss as well as brought forward unabsorbed depreciation for the purpose of arriving to a decision that the income from other sources is more than the income from business and profession - this issue is set aside to the record of the AO to reexamine and reconsider the same by considering the claim of the assessee and then decide the same as per law. - Decided in favour of assesse for statistical purposes.
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