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2019 (6) TMI 1644 - AT - Income TaxCorrect head of income - income from sale of shares held as investment - business income or capital gain - HELD THAT:- The Tribunal in appeal by the assessee in [2018 (12) TMI 1325 - ITAT PUNE] held that the income from sale of shares as capital gains. Both the sides are unanimous in stating that the accounting treatment of shares in the books of assessee and other relevant facts in the assessment year under appeal are identical to the facts in assessment year 2006-07. Thus, in view of the aforesaid decision of Co-ordinate Bench we hold that the income from sale of shares held as investment by the assessee has to be treated as capital gains. Disallowance of claim of deduction u/s. 80IA(4) - assessee had installed wind mill and claimed deduction on the income from wind mill - HELD THAT:- Co-ordinate Bench of Tribunal in assessee‟s own case in [2018 (12) TMI 1325 - ITAT PUNE] after placing reliance on the decision rendered in the case of ACIT Vs. RDS Construction Co.[2018 (4) TMI 1627 - ITAT PUNE] held that the assessee is eligible to claim deduction u/s. 80IA(4) of the Act. Respectfully following the decision of Co-ordinate Bench, the findings of Commissioner of Income Tax (Appeals) on this issue are reversed and ground No. 2 of the appeal is allowed. Disallowance of expenditure claimed by the assessee as repairs and maintenance - HELD THAT:- A perusal of documents on record show that the expenditure incurred by the assessee is purely on account of repairs. The expenditure clearly falls within the domain of “current repairs‟ within the meaning of section 30 of the Act. Expenditure on repairs of compound wall - The addition has been made merely for the reason that in R.A. bill it has been mentioned “Construction of compound wall”. The contention of the assessee is that it is repair of existing compound wall. The lower authorities have observed that the assessee has failed to bring on record any documentary evidence to substantiate prior existence of compound wall. Before us also the assessee has not placed on record any documentary evidence to show existence of compound wall. In the absence of complete relevant information, we deem it appropriate to restore this issue to the file of Assessing Officer for the limited purpose to ascertain from documentary evidence regarding existence of compound wall. If the assessee is able to show that the wall was in existence, prior to the date of repairs, the expenditure has to be allowed as revenue in nature. Disallowing expenditure is on account of installation of DG set, civil work, fabrication and carpentry - contention of the assessee is that the assessee had purchased new DG set for which civil work was required to be carried out for the installation. The expenditure incurred on foundation of DG set is purely revenue in nature as no enduring benefit would accrue to the assessee and no new asset has come into existence. Therefore, the addition on account of foundation of DG set is held to be on revenue account. Disallowance u/s 14A r.w.r. 8D - no suo-moto disallowance made by assessee - HELD THAT:- We find that the disallowance has been made under the provisions of Rule 8D(2)(iii). Undisputedly, the assessee has earned dividend income and no suo-moto disallowance has been made by assessee in respect of exempt income earned. Assessing Officer while invoking the provisions of Rule 8D has not made any disallowance in respect of interest expenditure. Therefore, the contention of assessee that own interest free funds of the assessee are much more than the investment made would not have any bearing in respect of disallowance made under Rule 8D(2)(iii). Accordingly, ground of the appeal is without merit and hence, dismissed. Set off of losses arising from business of wind mill - HELD THAT:- A perusal of impugned order shows that the Commissioner of Income Tax (Appeals) while upholding the findings of Assessing Officer has not given specific findings on the issue of claim of deduction. Even the Assessing Officer while passing assessment order has given cryptic findings for disallowing the loss while computing the assessee‟s claim of deduction u/s. 80IA. We are of considered view that this issue needs revisit to the file of Assessing Officer. The Assessing Officer shall decide this issue de novo after affording reasonable opportunity of hearing to the assessee, in accordance with law. Addition of written off bad debts - AO disallowed the entire amount primarily on the ground that the assessee has not shown the debts as irrecoverable - HELD THAT:- As decided in case of TRF Ltd. [2010 (2) TMI 211 - SUPREME COURT] it is a well settled law that the assessee need not established that the debt has in fact become irrecoverable. It is enough if the bad debt is written off as irrecoverable in the accounts of assessee. It is not disputed by the Department that the amounts written off as bad debts were duly reflected in the books of assessee in the past and they were written off during the assessment year under appeal. Thus, in view of law laid down by the Hon‟ble Apex Court, we find merit in the contentions of assessee. - Decided in favour of assessee.
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