9911796707
TMI Blog2013 (12) TMI 1567X X X X Extracts X X X X X X X X Extracts X X X X ..... shares as stock-in-trade is business income in the sense that the dividend is realized from the trading asset, but at the same time, it has to be borne in mind that part of the business income in the nature of dividend is not includible in the total income by virtue of the same being exempted under section 10(33) of the Act, and as such it is not understood as to why the interest incurred to the extent it is capable of being regarded as expenditure in relation to part of the business income in the nature of dividend should not be adjusted against exempted dividend income." 3. Learned D.R. of the Revenue supported the assessment order. He placed reliance on the Tribunal decision rendered in the case of DCIT vs. S.G. Investment & Industries Ltd. [2004] 89 ITD 44 (Kol). He also placed reliance on the judgment of Hon'ble Kerala High Court rendered in the case of CIT vs. Catholic Syrian Bank Ltd. & Ors. [2011] 237 CTR 0164. 4. As against this, learned A.R. of the assessee supported the order of learned CIT (A). He placed reliance on the following judgments: (i) Commissioner of Income-tax Vs Hero Cycles Ltd. [2010] 323 ITR 518 (P&H) (ii) Yatish Trading Co.(P) Ltd. vs. ACIT [2011 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the remaining taxable income and the entire disallowance cannot be deleted on the basis of this Tribunal decision. 5.1 Now we examine the applicability of the judgment of Hon'ble Delhi High Court rendered in the case of Maxopp Investment Ltd. & Ors. Vs. CIT [2011] 064 DTR 0122. As per this judgment of Hon'ble Delhi High Court, Rule 8D is prospective and is not applicable retrospectively. Regarding disallowance of expenditure u/s 14A for the earlier period, it was held that the A.O. has to first give this finding that he is not satisfied with the correctness of the claim of the assessee in respect of such expenditure or the claim that no expenditure is incurred for earning exempt income and then to determine the amount of such expenditure as per a reasonable and acceptable method of apportionment. In this regard, we find that it is noted by the Assessing Officer on page 5 of the assessment order that the assessee has not been able to give details of expenses incurred in relation to exempted income. On this basis, he has given a finding that he is not satisfied with the correctness of the claim of the assessee in respect of such expenditure in relation to income which does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertaken by the assessee for earning dividend income and other transactions resulting into taxable income. The Assessing Officer should pass necessary order as per law as per above discussion after providing reasonable opportunity of being heard to the assessee. Ground No. 1 of Revenue's appeal stands partly allowed for statistical purposes. 7. Ground No. 2 raised by the Revenue is as under: "2. The Ld. CIT(A) has erred in law and on facts in deleting the addition of Rs. 1,93,389/- without appreciating the fact that the assessee neither filed details regarding the services rendered by 9 persons nor any confirmation in lieu of receipt of commission before the Assessing Officer." 8. Learned D.R. of the Revenue supported the assessment order whereas the learned A.R. of the assessee supported the order of learned CIT (A). 9. We have considered the rival submissions, perused the material available on record and gone through the orders of the authorities below. We find that it is noted by the Assessing Officer on page 6 of the assessment order that the assessee has debited commission to the extent of Rs. 4,50,34,037/-. He has further noted that this includes commission payment to 9 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was observed that that- "It is true that the dividend income arising' from shares held as stock-in-trade is business income in the sense that the dividend is realized from the trading asset, but at the same time, it has to be borne in mind that part of the business income in the nature of dividend is not includible in the total income by virtue of the same being exempted under section 10(33) of the Act, and as such it is not understood as why the interest incurred to the extent it, is capable of being regarded as expenditure in relation to part of the business income fn the nature of dividend should not be adjusted against exempted dividend income." 12. It was agreed by both the sides that this issue is identical for both the years and the same can be decided on the similar line. In assessment year 2006-07, this issue has been decided by us in Para no. 5 of this order and thedisallowance of interest was deleted and the issue regarding disallowance out ofadministrative expenses has been set aside to the file of the Assessing Officer for fresh decision in the light of the Tribunal decision rendered in the case of Yatish Trading Co.(P) Ltd. (supra). On similar lines, in the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, it was submitted by learned A.R. that the same is not readily available and hence, the matter may be restored to the file of the Assessing Officer with the direction to verify the same and then decide the issue afresh. 17. We have considered the rival submissions, perused the material available on record and gone through the orders of the authorities below. We find that this issue has been decided by learned CIT(A) by following the judgment of Hon'ble Calcutta High Court rendered in the case of Before us, the assessee has placed reliance on the judgment of Hon'ble Allahabad High Court rendered in the case of Anil Bulk Carriers P. Ltd. Vs Commissioner of Income-tax 276 ITR 625 (All). In this case, it was held by Hon'ble Allahabad High Court that if the oil tankers were taken delivery by the assessee then the assessee is entitled to the depreciation if the registration is in assessee's name on the first day of the next year. Hence, in our considered opinion, if the assessee establishes this fact that the assessee received the delivery of the vehicle on 31/03/2007 and got it registered in his name on the first day of the next year then the assessee is eligible fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
