TMI Blog2015 (1) TMI 298X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Non-allowance of the set off of the LTCL against the LTCG – Held that:- The loss for AY 2005-06 has not been accepted by the Revenue, so that it is in appeal before the tribunal - There is as such no question of it being allowed carry forward of the same for set off against the income for the subsequent years, which could only be in terms of the specific provision of law, i.e., section 74, falling under Chapter VI of the Act - The assessee's plea of being in appeal for A.Y. 2005-06 is though not without merit - But that by itself would not give rise for a claim for the current year inas-much as the relevant order is only that for A.Y. 2005-06, i.e., as modified by the appellate order (by the first appellate authority) for that year, which continues to be the operative order/s. Depreciation on leased premises disallowed - Held that:- The decision in Assistant Commissioner of Income-tax Versus Rishiroop Polymers P. Ltd. [2005 (9) TMI 587 - ITAT MUMBAI] would apply in the facts and circumstances of the case - the discarding of the asset has to be in the year other than the previous year in which the asset is first brought to use - the asset has not been brought to use in any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed any expenditure, i.e., indirect, in relation to the income not forming part of the total income. Further still, the dividend cannot be said to be tax exempt in-as-much as the same is subject to dividend distribution tax, which only shifts the incidence of tax on dividend, for better administration, on the company distributing the same. The basis of the assessee's claim for non-incurring any expenditure was that it had not paid any portfolio management fee, and was being guided by its broker, who had not charged any fee for the same, being remunerated only by way of brokerage on the sale and purchase of shares, which stand accounted as a part of cost of acquisition or, as the case may be, sale of shares. Relying on the decision in the case of Godrej Boyce Mfg. Co. Ltd. v. Dy. CIT [2010] 328 ITR 81 (Bom) and CIT vs. Maganlal Chhaganlal (P.) Ltd. [1999] 236 ITR 456 (Bom), as well as that by the Tribunal, including by its Special Bench in the case of Cheminvest Ltd. v. ITO [2009] 121 ITD 318 (Del-SB), he was of the view that an estimation of the administrative expenses incurred by the assessee toward its investments in equity shares and mutual funds, yielding tax exempt income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, factually and/or legally, restore the matter back to the file of the ld. CIT(A), who shall decide the same in accordance with the law, disposing of each of the assessee's objections to estimation of such expenditure applying r. 8D, if any, made before him, with the onus to substantiate its claims being only on the assessee. We decide accordingly. 4. The second issue projected by the assessee's ground no. 2 is in respect of the nonallowance of the set off of the long term capital loss of ₹ 30,01,338/- for A.Y. 2005-06 against the LTCG for the current year. The basis of the said disallowance is that the assessee's claim for A.Y. 2005-06 stands not been accepted by the Revenue, and there is accordingly no question of the same being carry forward for being allowed set off of against income for the subsequent year/s. The assessee's case, which however did not find favour with the ld. CIT(A), resulting in the instant appeal, is that the assessee had not accepted the Revenue's stand and is in appeal, which is at present outstanding before the appellate tribunal. The assessee's claim, therefore, pending the disposal of its appeal, could not be dismissed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rinciples for the claim of depreciation. The assessee's alternate claim for being allowed the entire WDV on the leased asset, since 'returned' to the lessor, also did not find his acceptance in the absence of the relevant details being furnished by the assessee. Aggrieved, the assessee is in second appeal. 7. We have heard the parties, and perused the material on record. In our view, the decision by the tribunal in the case of Rishiroop Polymers (P.) Ltd. (supra), rendered following the decision by the hon'ble jurisdictional high court in the case of Dineshkumar Gulabchand Agrawal vs. CIT [2004] 267 ITR 768 (Bom), would apply in the facts and circumstances of the case. The said decisions, in ratio, which alone has precedence value, and in the instant case being by the hon'ble jurisdictional high court is judicially binding, is that the user, along with the ownership of a capital asset, represents a primary condition for the claim of depreciation allowance u/s.32. As such non-satisfaction of this essential condition would disqualify a claim for depreciation. In the facts of the instant case, the assessee expended ₹ 19.20 lacs on the renovation of prem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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