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2018 (2) TMI 512

Head Note:
Disallowance u/s 40(a)(ia) for non-deduction of tax at source based on tax audit report u/s 44AB - Held that:- The scheme of taxation is primarily governed by the principles laid down in the Constitution of India and as per Article 265 of the Constitution of India, no tax shall be levied or collected unless by an authority of law. When a particular item is not to be taxed as per the statute, then taxing the same would amount to violation of constitutional principles and revenue would be unjustly enriched by the same. Hence in the process of verification by the AO, if the stand of the assessee is found to be correct and if it results in income being assessed lower than the returned income, that would be the true and correct income of the assessee and it would be the duty of the revenue to assess the correct tax liability of the assessee. We deem it fit and appropriate, in the interest of justice and fairplay.

Addition being amortization of premium paid for purchase of securities - Held that:- We find that this issue is covered in favour of the assessee by the order of this tribunal in assessee’s own case for the Asst Year 2008-09 [2016 (6) TMI 181 - ITAT KOLKATA] wherein held AO disallowed the claim of the assessee on the assumption that full purchase consideration of all the securities was included in the said investment trading account and amortization amount is charged separately in the Profit and Loss Account again and he therefore held that the claim of the Assessee cannot be allowed in computation of total income. This factual assumption of the AO is wrong as found by the CIT(A) which has not been disputed before us. In these circumstances, we are of the view that the order of the CIT(A) does not call for any interference.


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