TMI Blog2012 (9) TMI 996X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeals) erred, has erred in law and on the facts in deleting addition of ₹ 11345/- on account of extra depreciation claimed on computer peripherals ignoring that as per the I.T. Rules 60% depreciation is allowable only on computer and computer software and not on computer peripherals/ accessories. (ii) Ld. Commissioner of Income Tax (Appeals) has erred in law and on facts in deleting addition of ₹ 26,58,762/- on account of non-deduction of TDS on payments made by NSE ignoring that as per NSE s letter dated 10.5.2007 to its members TDS must be deducted by all members u/s. 194(J) of the I.T. Act on charges i.e. membership fee, transaction charges and V-State and lease line charges. (iii) The appellant craves leave for r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 88E is to be allowed. (ii) Without prejudice to the above and in the alternative, learned CIT(A) has erred both on facts and in law in not appreciating the contention of the assessee tl:1at the credit of STT paid under Section 88E shall also be available on the tax computed as per provisions of Section 115JB of the Act. (iii) On the fact and circumstances of the case, the learned CIT(A) has erred both on fact and in law in holding that the tax liability under section 115JB being less than the tax liability on the basis of the returned income, the issue is only of academic in nature and require no finding or adjudication. (iv) That the above finding of the learned CIT(A) is against the finding given by the AG. in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any infirmity in the order of the Ld. Commissioner of Income Tax (A) and hence, we uphold the same. 8. Apropos issue of disallowing addition of ₹ 26,58,762/- on account of non-deduction of TDS on payment made by NSE. On this issue Assessing Officer noted that assessee company had made the payment to National Stock Exchange (NSE) such as transaction charges, V-State Charges, lease rent charges and misc. charges. During the assessment Assessing Officer raised the query that since TDS was not deducted on payments made to NSE, then why these amounts should not be disallowed. Assessee responded that so far as the TDS on payment to NSE is concerned, there is no provision under the Act which requires deducting tax on these payments. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . charges were made in pursuance of a contract. The payments are made to NSE in the normal course of business and these payments do not fall within the scope of section 194C of the Act. The disallowance made by the Assessing Officer is, therefore, directed to be deleted. 10. Against the above order the Revenue is in appeal before us. 11. Ld. Counsel of the assessee submitted that the issue is squarely covered in favour of the assessee by the decision of the Special Bench, ITAT, Vishakapatnam Bench in the case of Merilyn Shipping Transports vs. Addl. C.I.T. (2012) 136 ITD 23 (Vish) (SB). In this case it was held that the provision of section 40(a)(ia) cannot be invoked with respect to the payments which are actually paid during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , we find that the issue involved is also squarely covered in favour of the assessee by the decision of the Special Bench of the Tribunal in the case of Merilyn Shipping Transports vs. Addl. C.I.T. (Supra). In this case it was held that the provision of section 40(a)(ia) cannot be invoked with respect to the payments which are actually paid during the financial year, but it can be invoked only with respect to the payments not actually made. Since in this case all the payments were made during the year and nothing was payable at the end of the year, no disallowance is called for. Accordingly, in the background of the aforesaid discussions and precedent, we uphold the order of the Ld. Commissioner of Income Tax (A) and decide the issue in f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee submitted that the ratio of turnover on own account and on clients account is 13:10. However, in the absence of evidence the contention of the assessee was not accepted by the Assessing Officer. Therefore, in the absence of complete evidence the expenses were apportioned on the basis of turnover on brokerage account and on self trading. The ratio of turnover on brokerage account and self trading account was 17% and 83% respectively. Accordingly, rebate u/s 88E was recalculated by the Assessing Officer and was restricted to ₹ 51,86,074/-. 16. Upon assessee s appeal Ld. Commissioner of Income Tax (A) affirmed the order of the Assessing Officer. 17. We have carefully considered the submissions and perused the records. We find ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
