TMI Blog2013 (9) TMI 1013X X X X Extracts X X X X X X X X Extracts X X X X ..... Held that:- Carefully considered the rival submissions and also the precedent in the assessee’s own case by way of the order of the Tribunal [2012 (8) TMI 195 - ITAT, Pune] he Tribunal considered the allowability of expenditure incurred by way of payment of fees of ENAM Asset Management Company Pvt. Ltd. in terms of the investment agreement dated 01.01.2005, which is precisely the issue before us also. The Tribunal referred to its earlier decision in the assessee’s own case for assessment year 2004-05 and noticed that the issue has been decided in favour of the assessee. - Decided in favour of assessee. - ITA No.94/PN/2012, ITA No.337/PN/2012, ITA No.665/PN/2012, ITA No.703/PN/2012, ITA No. 1857/PN/2012, ITA No. 2035/PN/2012 - - - Dated:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee had declared short term capital gain on sale of shares at ₹ 79,28,679/- and long term capital gain on sale of shares at ₹ 8,60,49,555/- depending on the period of holding of shares. The short term capital gain was offered to tax whereas the long term capital gain was claimed as exempt. The entire activity of dealing in shares and mutual funds was treated by the assessee as an investment activity and not as a business activity. Following his stand for the earlier assessment years i.e. from assessment years 2004-05 to 2007-08, the Assessing Officer treated the entire capital gains declared by the assessee as business income on the ground that such activity was an activity of business. The CIT(A) however reversed the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 011 which, in turn, has arisen from an order dated 30.11.2010 passed by the Assessing Officer, under Section 143(3) of the Income Tax Act, 1961 (in short the Act ). 9. In the appeal of the assessee, the solitary issue is with regard to the action of the CIT(A) in confirming the stand of the Assessing Officer that fees paid to ENAM Asset Management Company Pvt. Ltd. was not an allowable expenditure in computing appellant s income whether under the head business or under the head capital gains . 10. In this regard, the Assessing Officer noticed that assessee had incurred expenditure of ₹ 2,79,31,009/- representing payments to ENAM Asset Management Company Pvt. Ltd. as portfolio management fees in terms of an Investment Managem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the CIT(A) in support of the case of the Revenue. 13. We have carefully considered the rival submissions and also the precedent in the assessee s own case by way of the order of the Tribunal 6 dated 25.07.2012 (supra). In the said case, the Tribunal considered the allowability of expenditure incurred by way of payment of fees of ENAM Asset Management Company Pvt. Ltd. in terms of the investment agreement dated 01.01.2005, which is precisely the issue before us also. The Tribunal referred to its earlier decision in the assessee s own case for assessment year 2004-05 vide order dated 31st May, 2011 (supra) and noticed that the issue has been decided in favour of the assessee. Thereafter, the Tribunal noted that against the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed the order for earlier year in the case of the assessee and since the order of CIT(A) for earlier year has been reversed by the Tribunal, therefore, unless and until the decision of the Tribunal is reversed by a higher court, the same in our opinion should be followed. In this view of the matter, we respectfully following the order of the Tribunal in assessee s own case for A.Y. 2004-05 allow the claim of the Portfolio Management fees as an allowable expenditure. The ground raised by the assessee is accordingly allowed. 14. Following the aforesaid precedent, which has considered the similar objections of the CIT(A), in our considered opinion, the order of the CIT(A) in the present case is untenable and we accordingly set-aside t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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