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2018 (3) TMI 210 - AT - Income TaxTreatment of STCG on sale of shares / mutual fund - rebate u/s 88E for STT paid by the assessee - Held that:- AR fairly conceded that the amount of STCG earned by the assessee included certain intra-day gains / losses which were in the nature of speculation and hence were required to be excluded while arriving at figures of STCG. Therefore, at the outset, we direct Ld. AO to exclude the same from the figures of STCG and treat the same as speculation in nature. We concur with the stand of Ld. AR that the short term capital gains earned by the assessee was assessable under the head Capital Gains only subject to adjustment as envisaged above. Resultantly, Ground No. 1 of assessee’s appeal stands partly allowed which makes Ground No. 8 infructuous Disallowance u/s 14A - adjustment of 14A disallowance against Book Profits for the purpose of computation of Minimum Alternative Tax [MAT] u/s 115JB - Held that:- Adjustment of disallowance u/s 14A was not required to be made in Book Profits for the purpose of Section 115JB So far as the quantum disallowance u/s 14A following the Tribunal’s order for earlier years, since aggregate interest free owned funds far exceeded aggregate investment, drawing the presumption in assessee’s favor, we delete the impugned addition. Resultantly, this ground of assessee’s appeal succeeds. Disallowance u/s 40(a)(ia) on account of delayed payment of TDS - Held that:- the matter stood covered in assessee’s favour by the judgment of Hon’ble Delhi High Court rendered in CIT Vs. Naresh Kumar [2013 (9) TMI 275 - DELHI HIGH COURT]. Although the TDS has been deposited by the assessee beyond due date but it is well before the due date of filing of return of income by the assessee. The facts of the issue are squarely covered by the ratio of cited decision of Hon’ble Delhi High Court where it has been held that the provisions of Section 40(a)(ia) were to be interpreted liberally and equitably keeping in mind the object and purpose behind the same so that the assessee do not suffer unintended and deleterious consequences and therefore the amendment to Section 40(a)(ia) as made by Finance Act, 2010 was retrospective in nature and therefore the amount of TDS which is deposited late but before due date of filing of return of income enables the assessee to claim the deduction of the expenditure in the concerned year itself. Respectfully following the same, by deleting the impugned addition, we allow this ground of assessee’s appeal. Depreciation on motors cars given on finance lease basis - Held that:- Upon perusal of sample agreements and other documents produced before us, we, prima-facie agrees with the stand of the revenue that the transactions were primarily in the nature of finance lease. However, be that as the case may be, the issue has consistently been decided by the Tribunal right from AYs 1995-06 onwards in assessee’s favor and depreciation has been allowed to the assessee. The said orders have mainly relied upon the cited judgment of Hon’ble Apex Court. The revenue is not able to point out any differentiating facts in the impugned AY vis-à-vis facts of the earlier years.Therefore, we see no reason to deviate from the stand taken by several coordinate bench of this Tribunal and accordingly, adjudicate the matter in assessee’s favour. The benefit of capital recovery or any other corresponding benefit granted by Ld. AO to the assessee shall stand withdrawn - Decided in favour of assessee. Disallowance u/s 14A - Held that:- we concur with the stand of Ld. AR that Rule 8D was not applicable during the impugned AY and therefore, disallowance, if any, was required to be made only on an estimated basis. We find that the assessee has earned exempt income of ₹ 281.06 Lacs in the impugned AY and therefore, upon factual matrix, we estimate the same @2% of the exempt income which comes to ₹ 5.62 Lacs. The assessee gets partial relief for the balance addition. Accordingly, these grounds stands partly allowed. Long Term Capital Loss on sale of certain shares - AR contended that, in all fairness, the legitimate claims were allowed to the assessee - Held that:- After hearing, we concur with the proposition that legitimate claims could not be denied to the assessee and further, there was no bar on appellate authorities to entertain new claims which were not made in the return of income in terms of decision of Hon’ble Bombay High Court rendered in CIT Vs. Pruthvi Brokers and Shareholders Private Ltd. [2012 (7) TMI 158 - BOMBAY HIGH COURT]. However, it appears from the order of Ld. first appellate authority that the factual matrix has not been verified by the lower authorities. Therefore, we concur with the stand of Ld. CIT(A) subject to verification of factual matrix by Ld. AO. Therefore, the matter is remitted back to the file of Ld. AO for verification of factual matrix
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