TMI Blog2015 (3) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... see has already allocated expenditure of ₹ 13,90,651/- on a pro-rata basis, which can be said to be reasonable allocation of expenses for the purpose of earning of the exempt income. The assessing officer without finding any defect in such an attribution of expenses has blindly applied Rule 8D. Such an application of Rule 8D in the present assessment year is not applicable and therefore, disallowance made by the AO and confirmed by the Ld.CIT(A) over and above the amount disallowed by the assessee is deleted. - Decided against revenue. Computation of capital gain - assessee challenged the addition in respect of sale of office premises, amounting to ₹ 36,29,494/-, by taking a different value other than sale consideration shown ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in favour of assessee. - ITA No. 5563/Mum/2011 - - - Dated:- 22-12-2014 - Shri N. K. Billaiya And Shri Amit Shukla,JJ. For the Petitioner : Shri Kirit Kamdar For the Respondent : Shri Vivek Batra ORDER Per Amit Shukla, JM:- This appeal has been filed by the Assessee against order dated 07.01.2011, passed by the Ld.CIT-12, Mumbai, for the quantum of assessment passed u/s 143(3) for the A.Y. 2007-08. 2. In Ground No. 1 the assessee has challenged the finding of the Ld.CIT(A) in upholding the action of the AO in taxing the income from sale of investment under the head business income instead of capital gain. 3. Before us, learned counsel admitted that similar issues were involved in earlier years also, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowance under section 14A of the Income-tax Act made in the Return of Income ought to be deleted. 7. After hearing both the parties and on perusal of the impugned order, we find that this additional ground raised before the first appellate authority has not been adjudicated. Therefore, we are remitting this ground to the file of the Ld.CIT(A) to decide this issue afresh and in accordance with law. 8. In Ground No. 4, the assessee has raised the contention that ground no. 2 taken before the Ld.CIT(A) has not been adjudicated or no proper finding has been given. The said ground reads as under: On the facts and in the circumstances of the case and in law, the Income-tax Officer erred in adding an amount of ₹ 16,69,975/- (being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Capital Management Ltd., held that Rule 8D would apply and accordingly worked out the disallowance at ₹ 15,90,335/- as per Rule 8D. The Ld.CIT(A) has also upheld the said disallowance. 11. Before us, learned counsel submitted that admittedly in this year, Rule 8D is not applicable. Further the assessee on a pro rata basis has offered for disallowance u/s 14A which was based on method followed and accepted by the department, therefore, no further disallowance should be made. On the other hand, Ld. DR strongly relied upon the order of the AO as well as Ld.CIT(A). 12. We have heard the rival submission and also perused the relevant finding given in the impugned orders. Admittedly in the impugned assessment year, Rule 8D is not app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n office area. However, the AO rejected the assessee s contention and held that the rate of ₹ 11,099.37 per sq.ft should be applied and accordingly he treated the balance amount as deemed capital gains in the following manner:- Full value of consideration (327X11099.37) = ₹ 36,29,494 Less: Deemed short term capital gain = ₹ 18,87,931 (offered by the assessee) Balance deemed capital gain =Rs.17,41,563 14. The Ld.CIT(A) too has confirmed the action of the assessing officer, after observing and holding as under: I have carefully considered the above submission and I And that the premises sold by the appellant are situated in the same Poonam Chamber . The appellate explanation that 327 sq. ft. has been sold at a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned counsel submitted that the area of 327 sq.ft was a set back area which cannot be used for a proper office purpose and is different from the main office premises. When the office premises of 946 sq.ft was sold the same was sold at 11,099 per sq.ft, whereas the stamp duty value on registration was fixed only @ ₹ 7567 per sq.ft . If over all value of the entire area is taken into consideration, then the sale consideration is more than the stamp value. Further the assessing officer has no power to change the sale consideration, except u/s 50C of the Act. Thus, without any material on record the sale value cannot be changed. 16. On the other hand Ld. DR strongly relied upon the order of the Ld.CIT(A) and submitted that, for the same ..... X X X X Extracts X X X X X X X X Extracts X X X X
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