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2022 (1) TMI 370 - AT - Income TaxDisallowance being the amortisable portion of lease premium payment - HELD THAT:- Amortisable portion of the lease taken from the Noida Authority is concerned, Ld. AR fairly admitted that this issue is covered against the assessee by the order of the Hon'ble Delhi High Court in [2012 (7) TMI 526 - DELHI HIGH COURT] pertaining to the assessment year 2004-05, and though the assessee is in appeal before the Hon'ble Supreme Court on that issue, as the things stand today the assessee is bound by the order of the Hon'ble Delhi High Court. Land at Visakhapatnam into Tuticorin - As observed that the nature of lease, the location of the land, the terms and conditions of lease etc, for example, it is located in the Porto premises, the entry and exit of which is with Port Security, land used only for storage during transit etc., that the assessee has in its long time lease with Visakhapatnam Port trust is different from the terms and conditions of lease from Noida Authority; that the principle on the issue whether the rent in question is to be allowed as Revenue expenditure or not, is laid down by the Hon'ble High Court in assessee's own case for earlier assessment years and this depends on the facts of each case; that the issue was to be examined in the interest of Justice; that no prejudice would be caused to the Revenue in examining the matter once again; and therefore, the issue was set aside to the file of the learned Assessing Officer for considering the arguments of the assessee de novo in accordance with law. AR, in all fairness, submits that the same course as adopted for the assessment year 2008-09 may also be followed for this assessment year in restoring the issue to the file of the learned Assessing Officer for considering the facts and circumstances relevant for this particular assessment year and to take a call de novo. Ld. DR reports no objection for sending it back to the learned Assessing Officer. Recording the same, we allow this ground for statistical purpose, by restoring the issue to the file of the learned Assessing Officer to take a view de novo for this particular assessment year after hearing the assessee de novo in accordance with law. Addition u/s 14A r.w.r. 8D - HELD THAT:- AO advocated to the P & L Account and the Balance Sheet of the assessee and not being satisfied with the claim of the assessee that no expenditure was incurred for earning the exempt income, he proceeded to determine the proportionate expenses attributable to the earning of the exempt income. We are, therefore, of the considered opinion that it is not a case of where the reasons are not recorded but is only a case where the dissatisfaction of the learned Assessing Officer inevitably follows. Alternative plea of the assessee, insofar as the interest component under rule 8D(2)(ii) - no material is produced before us to establish that the assessee invested out of its own funds comprising of share capital and reserves and no interest-bearing funds were invested during the year, or to show that there is no nexus between the deployment of the interest-bearing loans and investments. It is a verifiable fact. We, therefore, direct the learned Assessing Officer to verify whether the own funds of the assessee exceed the investments during the year, and whether the borrowed funds were utilised for the purpose for which they were borrowed during the year and in either case let there not be any disallowance on account of rule 8D(2)(ii) of the Rules. Insofar as the disallowance under rule 8D(2)(iii) of the Rules is concerned, we do not find any ground to interfere with the same. Credit for deemed tax on the dividend income - Dividend income received by the assessee from OMIFCO Oman and the consequential deemed tax credit relief allowed by the Ld. CIT(A) under the Indo Oman DTAA - HELD THAT:- As relying on own case [2017 (4) TMI 1035 - DELHI HIGH COURT] Assessee is entitled to the credit for deemed tax on the dividend income received by them by virtue of the provisions of DTAA read with section 90 of the Act as well as the clarification issued by the Sultanate of Oman and the assessment made under the Oman Law as well as the orders passed in the case of assessee for the earlier assessment years. Findings of the Ld. CIT(A) are, therefore, do not suffer any illegality or irregularity and do not warrant any interference. Consequently, we uphold the same and dismiss these grounds of appeal of the Revenue.
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