TMI Blog2018 (12) TMI 1882X X X X Extracts X X X X X X X X Extracts X X X X ..... re, the CIT(A) has verified assessee s claim wherein he found that since units were held for more than 12 months assessee was eligible for benefit of long term capital gain. Accordingly, he directed the AO to exclude the amount from the total short term capital gain and to allow carry forward of long term capital loss after having the detailed observation - Detailed finding so recorded by CIT(A) are as per material on record, which has not been controverted by bringing any positive material on record. We therefore, do not find any reason to interfere in the findings of CIT(A). Disallowance u/s 14A - disallowance of interest under Rule 8D(2)(ii) - HELD THAT:- CIT(A) has given relief with respect to the proportionate interest free funds alleged to be utilized for exempt investment. The CIT(A) has correctly relied on the judicial pronouncements of jurisdictional High Court in the case of HDFC Bank Ltd. [ 2014 (8) TMI 119 - BOMBAY HIGH COURT] and Reliance Utilities Power Ltd. [ 2009 (1) TMI 4 - BOMBAY HIGH COURT] for reaching to the conclusion that no disallowance of interest is warranted in case assessee is having sufficient interest free funds. From the record we also observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s by the assessee. 2. On the facts and in the circumstances of the case and in law, the CIT(A) has erred in deleting the proportionate apportionment of Head office expenses and allocation of the head office expenses to Goa Unit, Samalkot Unit and Windmill Unit of the assessee, while computing the eligible profits for deduction u/s 80IA of the respective units, by the Assessing Officer. 3. On the facts and in the circumstances of the case and in law, the CIT(A) has erred in directing the AO to exclude the investments made in subsidiary companies by the assessee while working out 0.5% of the average investments so as to calculate the disallowance u/s 14A rwr 8D of the IT Act even though the assessee has received exempt income from the investments made in subsidiary companies. 4. On the facts and in the circumstances of the case and in law, the CIT(A) has erred in concluding that the provisions of section 115JB and the MAT liability thereof is not applicable to the assessee as the assessee is an electric / power generating and distributing company though provisions of section 115JB of the IT Act is squarely applicable to all the companies being assessed to tax in India. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otal income of the assessee company. By the impugned order the CIT(A) had allowed assessee s claim, against which revenue is in further appeal before us. 6. We have considered rival contentions and carefully gone through the orders of the authorities below. The disallowance made on account of replacement of meters has been consistently allowed by the ITAT and the Hon ble Bombay High Court in assessee s own case in assessee s favour. The CIT(A) after relying on these decisions of the Tribunal and the High Court have deleted the disallowance. Precise finding of CIT(A) was as under:- I have considered the facts of the case and the appellant s submissions. It is seen that my Id. predecessors and the Hon'ble ITAT had decided the issue in favour of the appellant in the earlier years as detailed above in the Hon'ble Bombay High Court has not submitted the Department s appeals in respect of expenditure on replacement of meters. Facts and circumstances being the same as that of earlier years, respectfully following the decision of my ld. Predecesors and the Hon'ble ITAT, the disallowance made by the deleted. The appellant's ground of appeal is allowed. 7. Respectf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (A) was as under:- I have considered the facts of the case and the appellant's submissions. It is seen that my Id. predecessors and the Hon'ble ITAT had decided the issue in favour of the appellant in the earlier years as detailed above in the appellant's submissions. I also find that the Hon'ble Bombay High Court has not admitted the Department's appeals in respect of allocation of head office expenses to the eligible units. Facts and circumstances being the same as that of the earlier years, respectfully following the decision of my Id. predecessors and the Hon'ble ITAT, the disallowance made by the A.O. on account of allocation of head office expenses to the eligible units is deleted. The appellant's ground of appeal is allowed. 10. We had carefully gone through the orders of the authorities below and found that issue under consideration is squarely covered by the order of the Tribunal in assessee s won case in the A.Y.2004-05 to 2009-10. We also found that the order of the Tribunal for the A.Y.2006-07 and 2008-09 have already been upheld by the Hon ble High Court. Respectfully following the same, we do not find any infirmity in the order of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Brokers Shareholders Pvt. Ltd, [2012] (23 taxmann.com 23) had discussed some of these judgements at length and held that the appellate authorities have jurisdiction to consider additional claims even though not claimed in the return of income. In view of this judgement of the Hon ble jurisdictional High Court (supra), the appellant s claim for reduction of short term capital gain to the extent of ₹ 4,41,35,000/- and carry forward of long term capital loss of ₹ 79,04,381/- is being considered and adjudicated. 14. We have heard rival contentions and found that before the AO assessee has filed revised claim with respect to long term capital gains earned on sale of units, which was not accepted by the AO on the plea that assessee has not filed revised return of income. Accordingly, by following the decision of Goetze India Ltd.(SC), AO declined assessee s claim. 15. By the impugned order, CIT(A) accepted assessee s claim by observing that the revised claim filed before the AO without filing revised return are required to be admitted in view of the decision of Bombay High Court in case of Pruthvi Brokers Shareholders Pvt. Ltd (Supra). We found that all the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n record. We therefore, do not find any reason to interfere in the findings of CIT(A). 17. During the course of assessment, AO has also made disallowance of ₹ 79,01,87,173/- u/s.14A. The brief facts are that during the year under consideration, income of 66,20,36,555/- was claimed exempt u/s. 10 of the Act. The details of expenses incurred in relation to the income not forming part of the total income were called for. The assessee company was required to furnish the details as per the provisions of Section 14A and Rule 8D. In response, submissions were made by assessee and the same were reproduced by the A.O. at pages 3 to 8 of the assessment order. The submissions made by the assessee company were considered by the AO but were not found acceptable. The AO was of the view that all investment capable of earning tax free investments should be considered for computation of disallowance. Further the AO observed that his his predecessor for A.Y.2006-07 to A.Y.2011-12 had worked out the disallowance U/S.14A as per Rule 8D considering all tax free investments. The A.O. accordingly proceeded to work out disallowance u/s.14A r.w.r 8D as under: 1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 8D2(ii) of the IT Act. 21. With regard to the assessee s contention for excluding investment in subsidiaries while working out disallowance under Rule 8D(ii), the CIT(A) allowed the same after observing as under:- 8.3. I have considered the facts of the case and the appellant's submissions. It is seen that the appellant's own interest free funds are in excess of the investments made. The Hon'ble jurisdictional High Court in the case of CIT Vs. Reliance Utilities Power Ltd. , 313 ITR 340 (Bom), held that if there are funds available, both, interest-free and overdraft and/or loans taken, then a presumption can be drawn that investments would be out of interest-free funds. This ratio laid down by the Hon ble Bombay High Court has been further reaffirmed in the cases of CIT Vs HDFC Bank Ltd. [2014] (49 taxmann.com 335) (Bom.) and HDFC Bank Ltd. Vs. DCIT (2016)] (67 taxmann,com 42) (Bom.). In view of the legal position on this issue as decided by the Hon'ble jurisdictional High Court, the proportionate interest disallowance under Rule 8D (2)(ii) is deleted. The appellant's ground of appeal on this issue is allowed. 22. We have considered rival contenti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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