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TMI Blog2017 (2) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... wance made u/s 14A of the Act. 2. The cross objection filed by the assessee is barred by limitation by 34 days. The assessee has filed a petition praying the bench to condone the delay. We heard the parties on this preliminary issue. Having regard to the submissions made in the petition, we condone the delay and admit the CO filed by the assessee. 3. The assessee is engaged in the business of manufacture of diesel generating sets & components and also undertakes service works relating to the same. In the original return of income, the assessee computed disallowance u/s 14A of the Act at Rs. 40,12,058/-. Subsequently the assessee filed a revised return of income, wherein the disallowance u/s 14A was made at Rs. 1,69,15,087/-. The AO notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... table to Long term capital gain from the amount of Rs. 1,69,15,087/-. Since the Ld CIT(A) had confirmed disallowance of Rs. 2,05,61,641/-, he computed the amount attributable to Long term capital gain at Rs. 25,02,327/- and accordingly directed the AO to add only Rs. 1,80,59,114/- (2,05,61,641 less 25,02,327/-) for computing book profit u/s 115JB of the Act. 6. The revenue is aggrieved by the direction given by the Ld CIT(A) to the AO to reduce the amount to be added u/s 14A for computing book profit u/s 115JB of the Act by Rs. 25,02,327/-. The assessee is aggrieved by the decision of Ld CIT(A) in confirming the disallowance of Rs. 2,05,61,641/- under normal provisions of the Act and corresponding increase in the disallowance while computi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve said factual aspects available in the books of accounts. 8. The Ld A.R submitted that the assessee is entitled to raise new claims, which are admissible under the law, before the Tribunal even if it has been admitted in the return of income. He submitted that there is no estoppel against the law. Accordingly he submitted that the assessee is entitled to put forth new claims before the Tribunal. In this regard, he placed reliance on the decision rendered by the jurisdictional High Court in the case of CIT Vs. Pruthvi Brokers and Shareholders P Ltd (2012)(349 ITR 336)(Bom). 9. The Ld A.R also submitted that the tax effect involved in the revenue's appeal is less than Rs. 10.00 lakhs and hence the same is liable to be dismissed. He submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he mutual funds by way of withdrawing money from the brought forward balance. Accordingly it was submitted that the provisions of Rule 8D should not have been mechanically applied under the facts of the present case. We find merit in the above said submissions of the assessee. The Ld A.R also submitted that the assessee is entitled to put forth new claims and in that regard he has placed reliance on the decision rendered by Hon'ble Bombay High Court in the case of Pruthvi Brokers and Shareholders P Ltd (supra). The Ld A.R also submitted that there is no estoppel against the law and hence the assessee could plead for rectification of disallowance wrongly made by the assessee. We agree with the said contentions of the assessee also. The purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any income to which section 10 (other than the provisions contained in clause (38) therefore) or section 11 or section 12 apply;" So for the purpose of computing the amount of expenditure relatable to any income to which section 10 apply, the provisions of sec. 10(38) relating to Long term capital gains are required to be excluded. Accordingly we are of the view that the Ld CIT(A) was justified in downsizing the amount of disallowance, by excluding the disallowance attributable to Long term capital gains, to be added to the Net profit for computing book profit u/s 115JB of the Act, i.e., his action, in our view, is in accordance with the law. 14. However, since we have restored the matter of disallowance u/s 14A of the Act to the file of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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