2013 (1) TMI 963

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.... assessee to the extent impugned in the grounds enumerated below: 1. The order of the CIT (A) is opposed to law and facts of the case. 2. On the facts and in the circumstances of the case and in law, the Ld CIT (A) erred in restricting the disallowance made u/s 14A read with Rule-8D with respect to expenditure related to investment in partnership firm ignoring the clear provisions of sec 14A and Rule 8D. 3. On the facts and in the circumstances of the case and in law, the Ld CIT (A) erred in deleting the addition of Rs. 8,50,000/- on account of non-deduction of TDS with respect to sub brokerage paid by assessee to different persons ignoring the provisions of section 40(a)(ia). 4. For these and other grounds that may be urged at ....

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....to 6.4 of the impugned order. Para 6.3 of the impugned order contains the discussion of the CIT(A) for granting relief to the assessee. The same reads as under: "6.3. I have considered the facts of the issue and the submissions made by the AR. There is merit in the submissions of the AR that the appellant was not obliged to deduct tax u/s 194H and therefore not hit by section 40(a)(ia) of the Act for the following reasons: (a) The AO has not disputed that units of Mutual Funds are 'securities' as per securities contracts (Regulation) Act, 1956. (b) As per Explanation to Section 194H commission or brokerage includes any payment received or receivable, directly or indirectly by a person acting on behalf of another person ....

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....sub-brokerage paid in the course of buying and selling of securities or in relation to any transaction relating to securities falls in the exclusion provided in explanation to section 194H and is not liable to TDS under section 194H. Therefore, the appellant deserves to succeed on this issue and this ground of appeal is allowed." 7. During the proceedings before us, Ld DR for the revenue fairly mentioned that the issue stands covered by the M/s. S.J. Investment Agencies P. Ltd. vide ITA No. 3820/M/2009 (AY: 2006-07) dated 23.2.2011. We have heard Ld DR and perused the relevant material placed before us. We find that the issue raised by the Revenue is squarely covered by the decision of ITAT, Mumbai in the case of ACIT vs. M/s. S.J. Inves....

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....ision, the commission or brokerage definition does not include transactions in securities. There is no doubt that Mutual Funds are not categorized as securities on which there is no objection from the Revenue either before the AO or before the CIT (A). In fact the CIT (A) also gives a finding that the AO has not disputed that units of Mutual Funds are securities as per Securities Contracts (Regulation) Act, 1956. Assessee is in the business of Mutual Funds distribution and investment agent. From the details of brokerage received and services tax deducted there from it can be seen that out of the brokerage income of Rs. 8,28,58,873/-, the brokerage income of Rs. 8,27,47,095/- is from Mutual Funds. The balance brokerage of Rs. 1,09,779/- is t....