TaxTMI 
TaxTMI 
TaxTMI 
2018 (1) TMI 802
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....ments. 1.1. That on facts and in law the CIT(A)/AO erred in not appreciating that by virtue of CBDT Circular no.528 dt. 16.12.1988 income earned by the appellant from profit on sale/redemption of investments is not liable to tax. 2. Without prejudice, that on facts and in law the CIT(A) erred in upholding the action of AO in denying benefit of exemption u/s 10(38) of the Income Tax Act of Rs. 570,06,36,179/-. 3. That on the facts and in law the CIT(A) erred in upholding a disallowance of Rs. 7,01,24,122/- out of the total depreciation allowance claimed by the appellant u/s 32 of the Act. 3.1. That on facts and in law the CIT(A)/AO erred in making/upholding the above disallowance without considering the fact that unlike earlier y....
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....r completed the assessment under section 143(3) by making following additions: 1. profit on sale of investment- Rs.6,00,01,47,000/- 2. interest recognition on realisation- Rs.43,30,97,000/ 3. depreciation being disallowed- Rs.7,01,24,122/- 4. guesthouse expenses disallowed- Rs.33,77,79/- 5. disallowance under section 14 A Rs.7,01,22,000/- 6. addition to the book profit Rs.7,01,22,000/- 2.2. Aggrieved by the assessment order passed, assessee preferred appeal before Ld.CIT(A). Ld.CIT(A) gave partial relief to assessee by confirming certain additions made by Ld.AO. 3. Aggrieved by the order of Ld.CIT(A) assessee is in appeal before us now. 4. Ground No. 1 raised by assessee is in respect of addition on account ....
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....which was earlier taxable under one specific clause could not be brought to tax after the deletion of such clause. 47. It is futile, therefore, for the Revenue to seek to bring to tax profits on sale of investment because in some earlier year the Assessee may have taken what appears to DC a contradictory stand. In any event, the Assessee appears to have explained that the issue that arose in the earlier case was regarding investments written off-and not profit on sale/redemption of investments. The observations of ITAT in its order for AY 1990-91 with regard to the profit on sale/redemption of investment could, at best, be treated as obiter since that was not in issue in the case before it. 48. The Court is, therefore, liable to subsc....
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....vision which would require revenue to disallow the claim of assessee in respect of sale of investment. 4.5. Since there is no difference in the facts for the year under consideration viz-a-viz assessment year 2005-06, and that the year under consideration before us is assessment year 2007-08, respectfully following the ratio of Hon'ble High Court we allow this ground raised by assessee. 4.6. Accordingly the ground raised by assessee stands allowed. 5. Ground No. 2 is in respect of denial of exemption under section 10 (38) of the Act. 5.1. In the assessment order it is observed that assessee had raised an alternative plea in respect of profit on sale of investments being exempt under section 10 (38) of the Act. In our considered opinion ....
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....ndorse the findings of the CIT(A), having regard to the facts and circumstances of the case." 6.3. Ld. counsel adverting to the facts in the present case submitted that admittedly for the year under consideration assessee has submitted all the relevant information in respect of the assets for which depreciation has been claimed which is evident from the observations made by Ld.AO in paragraph 4.3 of his order. For the sake of convenience the same is reproduced hereunder: "4.3. Subsequently during the course of assessment proceedings the assessee has submitted the details of auditor's report indicating the use of assets for more than 180 days and less than 180 days in the prescribed proforma. Furthermore, during the course of hearing the a....