SMT USHA SAMANI, MUMBAI V. ITO 17(3)(5), Mumbai

ITA 4268/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1804 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 20-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITANYA ANJARIA
• Keywords: Rule 8D
• Section: 14A; 2

Judgement Text

T HE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA ( A M) I.T.A. NO. 4268 /MUM/ 201 8 (ASSESSMENT YEAR 20 12 - 13 ) SMT. USHA SAMANI 10, PARIJAT, N.S. ROAD, MARINE DRIVE MUMBAI - 400 020. PAN : APBS2174R V S . ITO 17(3)(5) ROOM NO. 219 AAYAKAR BHAVAN M.K. ROAD MUMBAI - 400 020. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY NONE DEPARTMENT BY SHRI CHAITANYA ANJARIA DATE OF HEARING 11.6 . 201 9 DATE OF PRONOUNCEMENT 13 . 6 . 201 9 O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A) DATED 1.5.2018 AND PERTAINS TO A.Y. 2012 - 13. 2. THE ISSUE RAISED IS THAT LEARNED CIT(A) ERRED IN UPHOLDING THE DISALLOWANCE MADE BY THE ASSESSING OFFICER U/S. 14A READ WITH RULE 8D OF THE I.T. RULES AMOUNTING TO RS. 12 ,66,166/ - . 3. BRIEF FACTS OF THE CASE ARE THAT DURING THE COURSE OF ASSESSMENT, THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAS SHOWN DIVIDEND INCOME AT RS.22,49,982/ - AND CLAIMED THE SAME AS EXEMPT. HOWEVER, THE ASSESSING OFFICER NOTED THAT THE ASSESSE E HAS NOT MADE ANY DISALLOWANCE U/S. 14A OF THE ACT. THE ASSESSEE EXPLAINED THAT IT HAS EARNED INCOME BY UTILIZING INFRASTRUCTURE AVAILABLE WITH IT WITH THE HELP OF THE EMPLOYEES AND CLAIMED THAT NO EXPENDITURE HAS BEEN INCURRED. HOWEVER, ASSESSING OFFICER WAS NOT SATISFIED. HE OBSERVED THAT THE ASSESSEE HAS EARNED DIVIDEND INCOME FROM SHARES HELD AS INVESTMENT AND STOCK IN TRADE. HE PROCEEDED TO HOLD THAT THE DIVIDEND INCOME ON STOCK - IN - TRADE SHOULD ALSO BE SUBJECTED TO DISALLOWANCE SMT. USHA SAMANI 2 U/S. 14A OF THE ACT. AC CORDINGLY, HE PROCEEDED TO MAKE DISALLOWANCE U/S. 14A READ WITH RULE 8D AMOUNTING TO RS. 12,66,166/ - . 4. UPON ASSESSEES APPEAL LEARNED CIT(A) CONFIRMED THE SAME. AGAINST THE ABOVE ORDER, ASSESSEE IS IN APPEAL BEFORE THE ITAT. 5. DESPITE NOTICE, NONE APP EARED ON BEHALF OF THE ASSESSEE. AN ADJOURNMENT PETITION HAS BEEN MOVED WHICH HAS BEEN REJECTED. UPON CAREFUL CONSIDERATION, I NOTE THAT CLAIM OF THE ASSESSEE IN THIS CASE IS THAT THE ASSESSEE HAS ALSO NOT EARNED DIVIDEND INCOME ON S O M E OF INVESTMENT AND IT IS THE PLEA OF THE ASSESSEE THAT THE SAME SHOULD NOT BE CONSIDERED F O R DISALLOWANCE U/S. 14A. I FIND THAT THIS PROPOSITION IS DULY SUPPORTED BY THE ORDER OF SPECIAL BENCH OF THE ITAT IN THE CASE OF VIREET INVES T MENT PVT. LTD. (58 ITR 313). HENCE I DIRECT T HAT INVESTMENT WHICH HAD NOT YIELD ANY DIVIDEND INCOME SHOULD NOT BE TAKEN INTO ACCOUNT FOR THE PURPOSE OF COMPUTATION OF DISALLOWANCE. 6. AS REGARDS THE CLAIM THAT DISALLOWANCE U/S. 14A SHOULD NOT BE MADE FOR SHARES KEPT AS STOCK - IN - TRADE, I NOTE THAT T HIS ISSUE IS DECIDED AGAINST THE ASSESSEE BY THE DECISION OF HON'BLE APEX COURT IN THE CASE OF MAXOPP INVESTMENT LTD. (CIVIL APPEAL NO. 104 - 109 OF 2015). ACCORDINGLY, THIS PLEA OF THE ASSESSEE STANDS REJECTED. 7. IN THE RESULT, THIS APPEAL STANDS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 13 . 6 . 201 9 . SD/ - (SH A MIM YAHYA ) ACCOUNTANT MEMBER MUMBAI ; DATED : 13 / 6 / 20 1 9 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI SMT. USHA SAMANI 3 6. GUARD FILE. BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR ) PS ITAT, MUMBAI