A.O. has applied Rule 8D holding that Rule 8D is retrospective in nature. It is now settled that Rule 8D is prospective and is applicable on and from the A.Y. 2008-09. We direct the A.O. to recalculate the disallowance, if any, without applying Rule 8D on the dividend income shown at Rs..4,00,039/-. The A.O. is further directed to verify the contention of the appellant that the investments have not been made out of borrowed capital, after giving the appellant an opportunity of being heard.
Disallowance under section 14A has to be made in accordance with the principle laid down by the Hon’ble Bombay High Court in the case of Godrej & Boyce Mfg.Co.Ltd. Mumbai. Vs. Dy. Commissioner of Income . Rule 8D should not be applied and the AO has to adopt a reasonable basis or method consistent with all relevant facts and circumstances and after affording reasonable opportunity to the assessee to place all germane material on the record.
The law stands very well settled by the Hon’ble Apex Court in the case of CIT vs. Reliance Petroproducts (P.) Ltd., (supra) that merely disallowing a claim of deduction raised by the assessee is not a ground to proceed u/s 271(1)(c). For penalty, it has to be either a case of furnishing of inaccurate particulars, concealment of income or at least the claim should have been proved to be a mala-fide one. In our considered opinion, the said eventualities do not exist in instant case. Therefore, the penalty in question does not hold ground.
Sec. 24 has been amended w.e.f. 01-04-2002. Before the amendment, various categories of expenditure like collection charges, insurance premium, ground rent, land revenue, etc., were allowable, but after the amendment, only two types of deductions are possible, namely, 30% of the total annual value and amount of interest paid for acquisition of property. No other deduction is possible and accordingly we hold that the amount of expenditure incurred on account of brokerage, professional consultancy, maintenance, etc., relating to the property is not allowable under the head ‘income from house property’.
On appeal, the assessee filed the details, which are required by the AO, before the CIT(A), but the CIT(A) rejected the same. We find that under the similar circumstances in AY 2005-06 and 2006-07, the CIT(A) admitted the additional evidence and details filed by the assessee and remanded the matter to the AO with a direction to give opportunity of hearing to the assessee in the matter.
Major source of income credited by the assessee company in the profit and loss account is Other Income of Rs. 3,00,000/- and Rent of Rs. 1,49,000/-. The assessee had not carried out any business activity in the current year nor the assessee has produced any evidences in support of its argument that it has actively pursuing its business activity. The profit and loss account reveals that the assessee credited Rs. 4,49,000/- as above and claimed expenditure of Rs. 5,24,298/- being administrative exp and depreciation.
These two stay applications are connected and issues are similar. These stay applications are preferred by assessees on the issue whether the long term capital gains and short term capital gains offered should be treated as business income or profession.
Hon’ble Supreme Court in the case of CIT vs Reliance Petro Products Pvt. Ltd reported in 322 ITR 0158(SC). has clearly held that the return of income is the only document where the assessee can furnish his particulars of income, where as in the instant appeal, the appellant company has not disclosed the receipt of premium received on renunciation of rights in its return of income nor in the computation of income accompanied with the return of income. So penalty for Concealment of Income is imposable U/s. 271(1)(c) of the Income Tax Act, 1961.
The assessee debited an amount of Rs.17,34,716/- being foreign exchange loss that arose due to re-statement of current liabilities. The liability had arisen in the earlier years due to consultancy services rendered by Alfred Mcalphine, UK. The assessee contended that the loss arising due to fluctuation in foreign exchange liabilities, when such liabilities are re-instated as on 31st March, is ascertained liability and not contingent liability. The AO rejected the contention of the assessee.
Provisions of rule 8D of the Rules which have been notified with effect from March 24, 2008, would apply with effect from assessment year 2008-09. Even prior to assessment year 2008-09, when rule 8D was not applicable, the AO had to enforce the provisions of sub-section (1) of section 14A. For that purpose, the AO is duty bound to determine the expenditure which has been incurred in relation to income which does not form part of the total income under the Act.
