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TMI Blog2017 (6) TMI 914X X X X Extracts X X X X X X X X Extracts X X X X ..... is against the facts and circumstances of the case. 2. That the Ld. C1T (A) has erred in confirming the addition of Rs. 664.267/- made by the AO u/s 94(7) of the Income Tax Act. 1961. Further, the Ld. CTT (A) has grossly erred in interpreting the provisions of section 94(7) of the Act. 3. That the l.d. CTT (A) has erred grossly both in law and on facts in confirming the addition of Rs. 14.68,019/- made u/s 14A of the Act. 4. That the Ld. CTT (A) while upholding the addition made u/s 14A has failed to consider the detailed written submission and has not distinguished the facts of the case laws relied upon by the assessee before confirming the addition. 5. That in am case and in view of the matter, order of Ld. CTT (A) in confirm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... questionnaires as issued by the Assessing Officer was also furnished. It was further submitted that, before making any disallowance u/s 94(7), the Assessing Officer did not bring on record any material which could prove that the assessee was indulged in dividend stripping. From the details of trade of shares of GHCL, the assessee pointed out that it was having 1,40,06,596 shares at the beginning of the relevant assessment year, i.e., as on 1.4.2008 as it was holding considerable shares from the A.Y. 2006-07 itself. During the year consideration it only purchased 5,88,864 shares of GHCL and sold only 16,15,417. At the end of the relevant assessment year, i.e., on 31.3.2009, the assessee company was having 1,29,22,046 shares of GHCL, hence wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts book which were coming from the earlier years and during this year, sale of these shares far exceeded the purchase of these shares, hence the view taken by the authorities below for making the disallowance is unsustainable in law and facts. 6. On the other hand the ld. DR strongly relied upon the findings of the Learned CIT (Appeals) and submitted that he has taken note of entire facts and after analysing the relevant provision of section 94(7) he has given a definite finding and therefore, the order of the Learned CIT (Appeals) should be affirmed. 7. We have heard the rival submissions and perused the relevant findings given in the impugned order as well as material placed on record. The disallowance of loss of Rs. 6,64,267/- on sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were held for less than period of three months. This aspect has not been examined by the lower authorities. Under these facts and circumstances, we are of the considered opinion that this issue should be restored back to the file of the Assessing Officer who shall examine the details as furnished by the assessee and also examine the conditions as laid down in u/s 94(7) before disallowing the loss. The Assessing Officer shall provide proper opportunity to the assessee to substantiate its case. Thus, ground no. 1 is treated as allowed for statistical purposes. 8. Regarding second issue relating to disallowance u/s 14A, brief facts are that the assessee from shares held as stock-in-trade has received dividend income of Rs. 10,14,732/- which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the various decisions relied upon t iare incorporated in the appellate order from pages 4 to 10. However, the Learned CIT (Appeals) confirmed the said disallowance in a very detail manner, however all his findings and observations are based on conceptual and theoretical aspect of provision of section 14A and why rule 8D is mandatory. 10. Before us, the ld. counsel submitted that, assessee during the course of the assessment proceedings had given from the detailed objection/reply as to why the disallowance u/s 14A cannot be made on the facts of the assessee's case. The assessee has given the entire details of shares held as inventory and shares held as investment and also the amount due to secured loan creditors and sundry creditors. Apart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... direct expenditure there are various aspects which needs to be examined to like nature of expenses debited, working of average value of investment, if rule 8D at all is held to be applicable. None of these fact and assessee's nature of accounts have been examined by AO or CIT (A) as per law enshrined in section 14(2). Accordingly, we are of the opinion that the whole matter regarding disallowance u/s 14A should be restored back to the file of the Assessing Officer to examine the claim of the assessee having regard to the accounts maintained by it and only after examination of such accounts, he shall proceed to record his satisfaction as per the mandate of section 14(2). Thus, we are setting aside this issue to the file of the Assessing Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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