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2021 (3) TMI 321 - AT - Income TaxAddition u/s 14A r.w.r. 8D - suo moto disallowance - HELD THAT:- In Assessment Year 2008-09 in [2019 (12) TMI 1457 - ITAT DELHI] on the issue of disallowance u/s 14A the Co-ordinate Bench of the Tribunal had considered the issue of disallowance and remitted the issue back to the file of the Assessing Officer to work out of the disallowance by calculating average investments under Rule 8D(2)(ii)/(iii) by taking only those investments which have actually yielded dividend income during the relevant year and also directed that if the same exceeded the dividend income then to restrict the same to the extent of exempt income only. Disallowance u/s 14A of the Act had again restored the issue to the file of the AO with the direction to ascertain the investment which have yielded dividend income and to consider only those investments for computing the average value of investments. Therefore, on identical facts and with consent of both the parties, we deem it appropriate to restore this issue also to the file of the AO with a direction to include only those investments which have yielded dividend income for computing the average value of investments for the purpose of computing the amount of disallowance u/s 14A - AO is directed to offer reasonable opportunity to the assessee to present its case before proceeding to re-compute the disallowance. Since this ground also relates to the ground raised in the Department’s appeal, the Department’s ground also stands restored to the file of the AO with similar directions. Disallowance of non-compliance charges amounting paid to National Stock Exchange - HELD THAT:- As seen that the Ld. Authorized Representative has given a detailed break up and description of the various amounts constituting the impugned total amount and has vehemently argued that these penalties and fines levied by National Stock Exchange were more in the nature of regulatory/disciplinary fees and were not in the nature of any penalty levied for violation of any law. The fact remains that the submissions regarding the actual nature of fines and penalties levied by NSE were not explained before the Lower Authorities. The fact also remains that in the tax audit report, the auditor, in his own wisdom, has stated that this amount was liable to be disallowed and added back to the income of the assessee. In our considered opinion, interest of substantive justice would be met if the assessee is allowed an opportunity to explain and establish before the Assessing Officer as to how these amounts do not fall within the mischief of section 37(1) of the Act. We, accordingly, restore this issue to the file of the Assessing Officer with a direction to examine the matter afresh after giving proper opportunity to the assessee to present its case. Thus, Ground allowed for statistical purposes.
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