TMI Blog2015 (11) TMI 1543X X X X Extracts X X X X X X X X Extracts X X X X ..... he onus to exhibit so is on it. The assessee’s accounts having been since audited, the (service) tax return, as furnished subsequently, would only be in conformity with the audited accounts, reflecting the service tax as having been paid in excess – by whatever amount. That is, the validity of the assessee’s claim would get proved with reference to its audited accounts and tax return/s. The matter cannot be decided on the basis of bald/unsubstantiated claims. The Revenue authorities ought to have called for the said returns. Under the circumstances, it is considered only proper and in the interest of justice that the matter is restored back to the assessing authority to allow the assessee an opportunity to establish its claim/s. Disallow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , AM Appellant by : Shri Bhupendra Shah Respondent by : Shri B. S. Bist ORDER Per Sanjay Arora, A. M.: This is an Appeal by the Assessee directed against the Order by the Commissioner of Income Tax (Appeals)-9, Mumbai ( CIT(A) for short) dated 23.12.2014, partly allowing the Assessee s appeal contesting its assessment u/s.143(3) of the Income Tax Act, 1961 ( the Act hereinafter) for the assessment year (A.Y.) 2010-11 vide order dated 15.3.2013. 2. The appeal raises four grounds, which we shall take up in seriatim. The first ground agitates the disallowance of transaction charges allowed by the assessee, a company in the business of share broking, to Bombay Stock Exchange (BSE) (Rs.4,42,512/-). The same stan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Y. 2005-06 only, while the year under reference is A.Y. 2010-11. At the same time, however, the assessee has per its paper-book produced a certificate (dated 06.9.2013) from BSE stating that it had included the entire transaction charges of ₹ 4.43 lacs in its income offered to tax for the year (PB pg.28). The apex court in Hindustan Coca Cola Beverage P. Ltd. vs. CIT [2007] 293 ITR 226 (SC) has clarified that tax could not be received by the Revenue twice; TDS being only a manner of the recovery of tax. Though rendered in the context of TDS provisions, the question is if the tax cannot be recovered (by the Department) from the assessees, how would the condition of section 40(a)(ia) be met by the assesseepayers? It is this dichotomy th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... words, that the condition of the amended section 40(a)(ia) stands met. I decide accordingly, so that, subject to the said verification and returning a positive finding, the assessee succeeds. 4. Ground # 2 of the appeal relates to an addition for ₹ 1,61,681/- on account of brokerage income. The A.O. in assessment proceedings observed the assessee to have paid service tax in a sum higher than that which it was obliged to pay on the basis of the brokerage income as recorded in its books of account for the year. The assessee s claim that the amount (of tax) to the extent of ₹ 1,23,473/- was counted doubly while depositing the tax, did not find favour with him. Before the ld. CIT(A), who also called for a remand report, the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal relates to the disallowance u/s. 14A r/w rule 8D. The assessee having not disallowed any sum u/s.14A qua its tax-exempt incomes of dividend (Rs.3.37 lacs) and long-term capital gain (Rs.22.60 lacs), the A.O. invoked rule 8D and worked out the disallowance u/s.14A at ₹ 58,283/-. The assessee s case before the Revenue as well as before this tribunal was that it had not incurred any expenditure toward or in relation to the tax-exempt incomes, which stands repelled by the Revenue, placing reliance on the decision in Godrej Boyce Mfg. Co. Ltd. v. Dy. CIT [2010] 328 ITR 81 (Bom) . 7. The parties stand heard, and the material on record perused. Without doubt, the disallowance u/s. 14A is only of the expenditure incurred. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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