TMI Blog2017 (9) TMI 1888X X X X Extracts X X X X X X X X Extracts X X X X ..... llowance of expenditure u/s.14A r.w. Rule 8D(2) of the I.T. Rules, 1962, should be remanded to the file of the AO for fresh adjudication applying the said ratios of the judgments. AO shall grant reasonable opportunity to the assessee at the time of re-adjudication of the issues. Ground allowed for statistical purposes. Disallowance of share issue expenses - HELD THAT:- We find this issue has already been adjudicated by the Tribunal against the assessee in the own case for A.Y. 2006-07 [ 2012 (8) TMI 230 - ITAT PUNE] While deciding, Tribunal relied on the decision of Hon'ble Supreme Court in the case of Brook Bond India Ltd. [ 1997 (2) TMI 11 - SUPREME COURT] . Disallowance of income - difference between receipts as per online ITS data and receipt as per books - HELD THAT:- We find there is merit in the counsel's submission that the AO should examine each and every item of income/receipt which figures in the Form 26AS but not accounted as income of the assessee in the year under consideration. He should examine each and every such item and pass a speaking order after granting reasonable opportunity of being heard to the assessee in accordance with the set prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ELD THAT:- As such treatment is not appreciated by the Tribunal in the case of Serum International Ltd. [ 2013 (1) TMI 688 - ITAT PUNE] and said decision of the Tribunal is in tune with the subsequent circular issued by the CBDT vide Circular No.01/2016 dated 01-05-2016. Considering the same, the CIT(A) granted relief to the assessee which is fair and reasonable. - Decided against revenue. - ITA Nos. 1058 & 673/PUN/2016, 1240/PUN/2014 & ITA Nos.369 & 370/PUN/2015, 1265/PUN/2016, ITA No. 999/PUN/2016 and ITA No.479/PUN/2015 - - - Dated:- 8-9-2017 - Shri D.Karunakara Rao, AM And Shri Vikas Awasthy, JM Assessee by : Shri Sharad Shah Revenue by : Dr. Vivek Aggarwal ORDER PER BENCH, There are 8 appeals under consideration filed by both the Assessee and the Revenue covering the assessment years 2007-08 to 2011-12. For the A.Yrs. 2009-10 and 2010-11, there are no cross appeals by the Revenue. Therefore, all these appeals are being adjudicated by this composite order for the sake of convenience. 2. To start, we shall take up the cross appeals for A.Y. 2007-08 ITA No.1265/PUN/2016 (By Revenue - A.Y. 2007-08) : 3. In this appeal, the Revenue raised a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. Before us, no contrary judgment was cited by the Revenue. Therefore, after hearing both the parties and considering the binding judgment of Hon'ble Bombay High Court, we are of the opinion that the decision given by the CIT(A) in Para No.5 is fair and reasonable and it does not call for any interference. Therefore, the ground raised by the Revenue is dismissed. 7. In the result, the appeal filed by the Revenue is dismissed. ITA No.1058/PUN/2016 (By Assessee - A.Y. 2007-08) : 8. Ground Nos. 1 and 2 raised by the Assessee read as under : 1. The Ld. AO has erred in (and Hon. CIT-A erred in confirming) allocating notionally the expenditure for earning Exempt income amounting to ₹ 4,92,227/- and consequently erred in disallowing such expenditure u/s.14A. 2. The Ld. AO has erred in invoking (CIT(A) erred in confirming) provisions of section 14A r.w. Rule 8D in respect investments made for holding controlling stake/strategic investment in Joint Venture/Subsidiary companies. 9. Before us, on the said issue, it is the contention of the Ld. Counsel for the assessee that assessee has excess interest free funds which should be presumed to have been invested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decided by the Tribunal against the assessee in A.Y. 2006-07 and therefore, in this year also, the issue requires to be decided in favour of the Revenue. 13. We heard both the sides on this issue. We find this issue has already been adjudicated by the Tribunal against the assessee in the own case vide ITA No.1269/PN/2010 for A.Y. 2006-07. While deciding, Tribunal relied on the decision of Hon'ble Supreme Court in the case of Brook Bond India Ltd. 225 ITR 798. Considering the fair submission of Ld. Authorised Representative for the Revenue, we dismiss the ground raised by the assessee. 14. In the result, the appeal of the assessee is partly allowed for statistical purposes. We shall now take up the cross appeals for A.Y. 2008-09. ITA No.999/PUN/2016 (By Revenue - A.Y. 2008-09) : 15. The only ground raised by the Revenue, relating to the taxability of the discount linked to the short term loan, is identical to the one raised by the Revenue in A.Y. 2007-08. We have already dismissed the ground raised by the Revenue in that appeal. Following the same parity of reasoning, we proceed to dismiss the ground raised by the Revenue in A.Y. 2008-09 too. 16. In the result ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liation. It is also submitted that making such additions without rejecting the books of accounts violates the principles of natural justice. Therefore, it is the prayer of the Ld. Counsel for the assessee that the onus should be discharged by the AO with regard to the item of incomes which are not recognised as income of the year under consideration. 22. On hearing both the sides, we find there is merit in the counsel's submission that the AO should examine each and every item of income/receipt which figures in the Form 26AS but not accounted as income of the assessee in the year under consideration. He should examine each and every such item and pass a speaking order after granting reasonable opportunity of being heard to the assessee in accordance with the set principles of natural justice. Accordingly, this part of the ground is allowed for statistical purposes. 23. Ground of appeal Nos. 4 and 5 are general in nature and therefore they are dismissed as general. 24. In the result, the appeal filed by the assessee is partly allowed for statistical purposes. We shall now take up the appeal of the assessee for A.Y. 2010-11. In this Year also, there is no appeal by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at different location. 31. The ground relates to claim of deduction of ₹ 65,67,937/- u/s.80IA(4) of the Act. In this regard, Ld. Counsel for the assessee submitted that assessee paid the taxes as per the provisions of section 115JB of the Act. However, as per the regular assessment records, the set off of brought forward losses are not available because of the additions made by the AO in the previous assessment years. The assessed income for the year under consideration works out to ₹ 2.79 crores (rounded off). On knowing the above changed position regarding the availability of the profits for claim of deduction u/s.80IA(4) of the Act, assessee made a claim by filing a letter asking for the claim of deduction u/s.80IA(4) of the Act. The contents of Para 10 of the assessment order are relevant. 32. In this regard, before us, Ld. Counsel for the assessee demonstrated that the said claim of the assessee may now becomes infructuous in the light of the likely deletion of various additions, of course, if approved by the Tribunal or if no additions are repeated by the AO as a result of remand proceedings, if any, as directed by the Tribunal in this composite order. 33 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er on the facts and circumstances of the case and in law, the Ld. CIT(A) and Hon'ble ITAT, Pune, on which the Ld.CIT(A) placed reliance was correct to treat the judgement of non-jurisdictional High Court as a binding precedent that must be followed in disregard to the principle laid down on this issue by the Division Bench of the Bombay High Court in the case of CIT Vs. Thane Electricity Supply Ltd. reported in 206 ITR 727 ? 5. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) was justified in allowing deduction u/s.80IA(4) by considering the initial assessment year for the purpose of claiming deduction u/s.80IA(4) of the Act, is the first year in which the assessee claimed deduction u/s.80IA(iv)(4) for ignoring the operation of Sec. 80IA(5) of the I.T. Act, 1961? 37. At the outset, with regard to the issue raised in Ground Nos.1 and 2 (disallowance of IPO expenditure), Ld. Counsel for the assessee brought our attention to the decision of Jurisdictional High Court of Bombay in the case of Nimbus Communication vide ITA No.4244/2010 which is relevant for the proposition that the IPO expenditure incurred in connection with issue of share. The init ..... X X X X Extracts X X X X X X X X Extracts X X X X
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