TaxTMI 
TaxTMI 
TaxTMI 
2016 (12) TMI 1548
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....on for the purpose of deciding the issues involved in this case are that the assessee company engaged in the business of brokerage in stock and shares, filed its return of income declaring the total loss of Rs. 1,26,79,145/-. During assessment proceedings the A.O noticed that the assessee had written off an amount of Rs. 1,17,65,000/-, advanced to its subsidiary company, and claimed the same as revenue expenses. Rejecting the plea of the assessee that interest free loan given to subsidiary company to meet its working capital requirement as a measure to commercial expediency should be allowed as expenses, AO added back the said amount to the income of the assessee. Similarly, the assessee had paid Rs. 9,39,695/- towards transaction charges w....
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....llant prays that the said disallowance of loan written off Rs. 1,17,65,000/- be allowed. 3. The learned CIT(Appeal) has erred in law and fact in upholding the disallowance of transaction charges paid to Exchanges of Rs. 9,39,695/- u/s 40(a)(ia). The appellant cannot be compelled to do the impossible act. 4. The Appellant craves leave to add additional ground of appeal. The assessee erroneously treated loss on sale of shares of 100% subsidiary company as capital loss instead of business loss." 4. The present appeal has been filed along with an application for condonation of delay of 491 days. The Ld Counsel submitted that the delay was not wilful but has happened due to the circumstances beyond control. In fact, the assessee had prefer....
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....propriate to make reference to the decision of Hon'ble Supreme Court in the case of Collector Land Acquisition Vs. Mst. Katiji & Others, 1987 AIR 1353. The relevant part of the judgment reads as under: "1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied ....
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.... in question the said issue may be restored to the file of the Ld. CIT(A) for adjudication. So far as ground No 3 of the appeal is concerned, the Ld Counsel pointed out that the Mumbai Bench of the ITAT has decided the identical issue in favour of the assessee in assessee's own case ITA No. 842/M/2012 for the A.Y. 2008-09 vide order dated 24.11.2014. Therefore, the findings of the Ld. CIT(A) on the said issue are liable to be set aside. The Ld. Counsel further submitted that ground No 4 has been taken as additional ground to treat loss on shares of 100% subsidiary company as business loss as the same has been erroneously treated as capital loss. 8. After hearing the Ld. DR, we perused the material placed before us. The first ground of appe....
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....Court. This decision of the Tribunal was reversed only on 21.10.2011, by the Hon'ble High Court, wherein it was held that transaction charges are "fees for technical services", for which TDS was required to be deducted u/s 194J. The assessee's case before us is that, no disallowance should be made and assessee was under a bona fide belief that no tax was deductible. We find that such a bona fide belief for not deducting the tax in the assessment year in question under such circumstances has been accepted by the Hon'ble High Court in the case of Kotak Securities Ltd.(supra) itself and disallowance made u/s 40(a)(ia) was deleted. The relevant observation and the finding of the Hon'ble High Court on this aspect has given in para 32 of the orde....
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....Accordingly, we hold that no disallowance should be made u/s 40(a)(ia) in this year. Thus, assessee's ground is allowed." 10. Since, the facts and the issue involved in the present case are identical to the assessee's own case ITA No. 842/M/2012 for the A.Y. 2008-09 (supra) and the coordinate Bench has already decided the identical issue in favour of the assessee on the ground that non deduction of tax at source was based on the fact and belief that in the earlier years also no tax was deducted and the department had accepted the same. This bona fide belief was also based on the decision of ITAT Mumbai Bench which was reversed only on 21.10.2011 by the Hon'ble jurisdictional High Court. The Hon'ble High Court has accepted the plea of bona....