TMI Blog2016 (3) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... ming to the premature calculation that the order of AO iserroneous, thus this ground is allowed in favour of assessee - Decided in favour of assessee Disallowance on account of amalgamation/demerger claimed u/s 35DD - Held that:- These addition were made by CIT either on the basis of mere estimation or by disallowing 50% of the disallowance claimed which is based on conjecture and surmises and the same are not sustainable in the eyes of law and are liable to the deleted, resultantly we do not find that order of AO was erroneous or prejudicial to the interest of revenue. - Decided in favour of assessee Treating STCG as a business income by CIT(A) - Held that:- copies of assessment order in respect of all AYs had been placed on record and we have noticed that the assessee was consistently allowed STCG in all three consecutive assessments years, hence, keeping in view the principle of consistency the assessee is entitled for similar relief in the year under consideration, hence this ground of appeal is also allowed in favour of the assessee. Resultantly we do not find that order of AO was erroneous or prejudicial to the interest of Revenue.- Decided in favour of assessee - ITA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore it is prayed that the disallowance made be deleted 6. On the facts and m the circumstances of the case, the learned Commissioner of Income-tax erred in disallowing legal and professional expenses of ₹ 1,80,745/- by estimating 50 percent of expenses of ₹ 3,61,490/- were incurred for business service centre. Since the income from business service centre were assessed as income from house property the disallowance were made on estimated basis without any justification. Therefore it is prayed that the disallowance made be deleted. 7. On the facts and in the circumstances of the case, the learned Commissioner of Income-tax erred in disallowing expenses of ₹ 3,36,862 /- by estimating 50 percent of expenses of ₹ 6,73,725/were incurred for business service centre . Since the income from business service centre were assessed as income from house property the disallowance were made on estimated basis without any justification. Therefore it is prayed that the disallowance made be deleted. 8. On the facts and III the circumstances of the case, the learned Commissioner of Income-tax erred in disallowing expenses of ₹ 32,91,128/- on estimate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AO has computed the LTCG by adopting actual cost of acquisition on which rate applicable was 10% and re-computed the LTCG without indexation at ₹ 42,38,37,098/- though the assessee claimed through indexation amounting to ₹ 2,32,73,457/-, however, the AO increased the LTCG by an amount of ₹ 73,55,578/- and thus without indexation the LTCG was computed by an amount of ₹ 1,58,73,879/- on which tax payable is ₹ 15,87,387/- and as such the assessment made by AO is erroneous and prejudicial to the interest of Revenue. In respect of disallowance u/s 14A, the CIT observed that on exempted income of ₹ 1,58,46,982/- the AO disallowed only 1% of the exempt income which is not proper method of disallowance. The assessee-company has made investment in stock in share at ₹ 127,58,04,731/- and in the income from which is exempted, therefore, the disallowance made by AO is erroneous as well as prejudicial to the interest of Revenue. In respect of disallowance of other expenses on income from business the CIT concluded that the AO treated compensation received by assessee as income under the head House Property and allowed 30% deduction at ₹ 92,38,8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the assessment order passed by AO is erroneous and prejudicial to the interest of Revenue. 8. AR of the assessee has argued that ground no.1 raised in the present appeal is in respect of treating the order passed by AO as erroneous and prejudicial to the interest of revenue, ground no. 2 to 9 are in respect of various addition made by the CIT while exercising its power u/s. 263 and ground no.10 is general in nature. Since the result of this ground would be ultimate result of other grounds raised in the present appeal, so instead of giving our finding on this issue at beginning, we shall give our finding after discussing the other ground raised in the present appeal. 9. Second ground for our consideration is if the CIT erred in not accepting the LTCG by exercising script-wise indexation and without indexation whichever is beneficial to the appeal. The AO while dealing with the issue has observed that LTCG with indexation amounting to ₹ 23,95,132/- set off against the LTCG without indexation is not allowable and accordingly the LTCG without indexation will increase by ₹ 23,95,132/- and allowed the assessee, the STCG against STCL with indexation. The assessee fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the benefit of indexation, in a few transaction and avail 10% tax rate in the remaining transaction. Further, the DCIT vs. Savla Motor Agencies (P.) Ltd. the Co-ordinate Bench of Mumbai Tribunal has held that LTCG should be worked out as transaction-wise and tax should be charged at 10 % 20% (without indexation/with indexation) whichever is beneficial to the assessee/at the option of the assessee. 10. We have considered the order of authorities below and find that AO while making the assessment has computed the LTCG without indexation. We have considered various citations submitted by AR of the assessee wherein the DCIT vs. Savla Motor Agencies (P.) Ltd. reported vide (2012) 19 taxmann.com 359 (Mum) in ITA No. 3069/M/2010 co-ordinate bench of this Tribunal has held that LTCG should be worked out transaction wise and tax should be charged at 10% or 20% (without indexation or with indexation) respectively whichever is beneficial to the assessee after considering the judgment of Mohanlal N. Shah which has also relied upon by the assessee. Hence, we do not find any illegality or infirmity order passed by AO which was considered as erroneous or prejudicial to the interest of Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 7,48,459/-, legal and professional expenses of ₹ 1,80,745/-, and further expenses of business service centre ₹ 3,36,862/-, disallowance allegedly u/s. 24 pertaining to business service centre expenses of ₹ 32,91,128/-. 16. We have noticed that all these addition were made by CIT either on the basis of mere estimation or by disallowing 50% of the disallowance claimed which is based on conjecture and surmises and the same are not sustainable in the eyes of law and are liable to the deleted, resultantly we do not find that order of AO was erroneous or prejudicial to the interest of revenue. 17. Ninth ground for our consideration is treating STCG of ₹ 36,33,874/- as a business income by CIT. AR of the assessee has drawn our attention that assessee was allowed STCG in respect of AY-2002-03, AY-2003-04 AY-2004-05, copies of assessment order in respect of all AYs had been placed on record and we have noticed that the assessee was consistently allowed STCG in all three consecutive assessments years, hence, keeping in view the principle of consistency the assessee is entitled for similar relief in the year under consideration, hence this ground of appeal is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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