Ina Stock Broking Co. P. Ltd, Mumbai vs Assessee

The aforesaid appeals have been filed by the Assessee, against separate impugned order dated 28.02.2012 and 28.05.2012 for the A.Y. 2008-09 & 2009-10, respectively, passed by Ld. CIT(A)-8, Mumbai for the quantum of assessment passed u/s 143 of I.T. Act.

2. We will first take up assessee's appeal for the A.Y. 2008-09 [ITA No. 3480/mum/2012], vide which following grounds have been raised:-

"1. On the facts and in the circumstances of the case and in law the Learned Commissioner of Income Tax (Appeals) erred in failing to allow the Vandha Loss which he ought to have allowed 2 ITA Nos. 3480 & 5064/Mum/2012 Assessment Years: 2008-09 & 2009-10

considering that the loss was incidental to and occurred in the normal course of carrying on the activity of share broking business.

2. On the facts and in the circumstances of the case and in law the Ld. CIT(Appeals) erred in holding the Vandha loss as a speculation loss in terms of the explanation to section 73 of the Income Tax Act, 1961.

3. The Appellant prays that Vandha Loss be fully allowed as business loss.

4. The Appellant prays that treating Vandha Loss as speculation loss be rejected."

3. The facts in brief are that, the assessee is a private limited company engaged in the business of share and stock broking as a member of Bombay Stock Exchange. In the P&L Account the assessee has claimed loss of Rs.17,24,119/- as "Vandha Loss". In response to the show cause notice to justify such a claim of loss during the course of the assessment proceedings, the assessee submitted that in the normal course of carrying out broking activity, many a time vandha which means disputed share transactions, takes place. It is an objection in the trade process and there are various situations in which vandha loss can arises. The stock exchange has laid down mechanism to sort out the problems arising out of such situations. In this year delivery against sale of shares in 3 scrips could not be effected due to some error in the course of paying. Stock of these shares which were undelivered to the clearing house of the stock exchange remained with the assessee till year end. The value of these shares went down sharply as on 31.03.2008. The working of the loss in the 3 scrips held in vandha stocks were as under:-

3 ITA Nos. 3480 & 5064/Mum/2012 Assessment Years: 2008-09 & 2009-10

Name of Quantity Rate Cost (Rs) Closing Rs. Profit/Loss Scrip Rate Anant Raj 2000 399.40 798800 228.60 457200(341600) (Auction Notice No. D191/07 Auction No. 3696 J. Sera Sera 50000 40.95 2022500 19.00 950000(1072500) (Pay in "RA0204 Selan 3900 257.85 1005615 139.75 545025(460590) Exploration (Auction Notice No. D196/07 Auction No. 3702 Net Vandha Profit on other scrips 138675 Other scrips 11896 Net Vandha Loss (-)1724119

Along with the submissions, the assessee enclosed following documents:-

1) Clearing House Statement from BOI Shareholding Ltd.

a) K. Sera Sera;

2) Money Statement for Auction from Bombay Stock Exchange Ltd. for

a) Anant Raj (Auction No. 3969)

b) Selan Exploration (Auction No. 3702) 4 ITA Nos. 3480 & 5064/Mum/2012 Assessment Years: 2008-09 & 2009-10

3.1 It was further submitted that during the year assessee was not engaged into share trading activity. The stock of shares held by the assessee due process of vandha were shown as current assets in the balance sheet. Reference was also made to accounting standard AS-13, which states that the value of the amount of current investments is to be taken at a lower of cost or fair market value.

3.2 However, the assessing officer rejected the assessee's contention and held that the claim of loss by the assessee is not actual but notional. All the 3 scrips remained with the assessee as on 31.03.2008, which was valued at the prevailing market rate and the difference of cost price over the market price has been charged to the P&L Account. In the form 3CD the auditors have stated that investments have been taken at cost, therefore, the assessee's explanation cannot be accepted. Since the scrips remain with the assessee, the price of such scrips may appreciate in the future and therefore, the loss on the shares are retrievable and does not fall under the category of business loss. Accordingly he disallowed the vandha loss claimed by the assessee. He further noted that the actual vandha loss claim on these scrips is Rs.18,74,960/- and therefore he disallowed the said amount.

4. Before the Ld. CIT(A), the assessee, reiterated the same submissions, which has been incorporated by the Ld. CIT(A), however in para 3.3. The Ld. CIT(A) after referring to the decision of Bombay High Court in the case of Prasad Agents Pvt. Ltd. Vs. ITO reported in 333 ITR 275(Bom), held that the loss is to be treated as 'speculation loss' and the allowance of which should be granted only against the speculation profit. Thus, he held that the said loss is to be treated, as speculation loss in terms of Explanation to section 73.

5 ITA Nos. 3480 & 5064/Mum/2012 Assessment Years: 2008-09 & 2009-10

5. Before us, the Learned counsel, Shri Deepak Trashawalla after explaining the concept of vandha loss, submitted that such a loss has been incurred during the course of normal business activity of the assessee i.e. share broking activity, and therefore such a loss cannot be treated as speculation loss. The decision of Hon'ble Bombay High Court as relied upon by the Ld. CIT(A) cannot lead to a conclusion that such a loss is to be treated as speculation loss. This decision was rendered into entirely different context. Here-in-this case the assessee is only engaged in the business of share trading and therefore, Explanation to section 73 is not applicable. The issue of vandha loss and whether the provision of Explanation to section 73, is applicable or not had come up for consideration before the ITAT Mumbai Benches in several cases wherein, it has been held that Explanation to section 73 has no application in respect of such business, where assessee is carrying out share broking activity and vandha loss cannot be held to be speculative loss. In support of his contention, he strongly relied upon the decision of ITAT Mumbai Bench in the case of Falcon Brokerage Pvt. Ltd. Mumbai Vs. Assessee in ITA No. 495/Mum/2006 order dated 21.12.2012.

6. On the other hand, Ld. DR. strongly relied upon the order of the Ld. CIT(A).

7. We have heard rival submissions and also perused the relevant finding given in the impugned order. Here-in-this case the assessing officer has disallowed the loss on entirely different footing whereas, The Ld. CIT(A) has treated the said loss as speculative loss within the deeming the provision of Explanation to of section 73. So now we have proceed as to whether, vandha loss is a speculative loss or business loss. The assessee is share and stock brokers with BSE. During the 6 ITA Nos. 3480 & 5064/Mum/2012 Assessment Years: 2008-09 & 2009-10

course of its normal business of broking activities, some disputed share transactions have taken place in respect of 3 scrips. These disputed transactions represent objections or discrepancies in the settlement process. In this year, 3 scrips (as stated above) could not be delivered to the clearing house in time. As per the stock exchange regulation, the assessee can purchase the shares through auction from the stock exchange and the shares comes back to the assessee. These shares, remained with the assessee at the year end. As on 31.03.2008 the market price on these scrips got devalued as compared to the cost price of the shares. The comparative market price and the cost price were given by the assessee in the following manner:-

Scrip No. of Shares Cost per share Market price Market price as as on 31.03.08 on 31.03.09 Anant Raj Ind. 2000 399.40 228.20 40.20 K. Sera Sera 50000 40.45 19.00 10.50 Selan Expl. 3900 257.85 139.75 264.07 sold

Since, these shares remained with the assessee under the head current assets in the balance sheet, therefore same were valued at market price as per the accounting standard AS-13 issued by ICAI, which provided that any reduction to the fair value of current investment and any reversal of such deduction are to be included in the P&L Account. It has been stated by the assessee before CIT(A) that it has been consistently following the method of valuing the vandha stock at cost or market price whichever is lower. These facts have not been disputed by the Ld. CIT(A). The only reason of treating the said loss as speculation loss by the Ld. CIT(A), is the decision of Hon'ble Bombay High Court in the case of Prasad Agents Pvt. Ltd. Vs. ITO (supra). This case has no reference in 7 ITA Nos. 3480 & 5064/Mum/2012 Assessment Years: 2008-09 & 2009-10

the case of the assessee at all because, the said case pertained to non- banking financial company. Explanation to section 73 postulates that, where any part of the business of a company [other than certain specified company as mentioned in the explanation] consists in the purchase and sale of shares of other companies, then such company for the purpose of this section is deemed to carrying on speculation business to the extent of which the business consist of purchase and sale of such shares. This Explanation is not applicable to a stock broker who is carrying out purchase and sale of shares on behalf of its client. Thus, the reason given by the Ld. CIT(A) for treating it to be speculation loss is factually and legally not correct. Here the vandha loss has been incurred to the assessee during the course of brokerage business which is incidental and integral part of the brokerage business. Hence, such a loss is to be allowed while computing the income of the assessee and the Explanation to section 73, has no application in respect of such business. Accordingly, the assessee's ground on this score is allowed.

8. In the result, the assessee appeal for the A.Y. 2008-09 is allowed.

9. Now, we will take up assessee's appeal for A.Y. 2009-10 [ITA No. 5064/Mum/2012], vide which following grounds have been raised:-

"The Learned Commissioner of Income Tax (Appeals) erred in upholding the application of provisions of Rule 8D to section 14A of the I.T. Act 1961, by the learned assessing officer and confirmed the disallowance of expenses of Rs.3,96,812/- as calculated under rule 8D of the section 14A of the Act."

10. The brief facts of the case are that, the assessee has earned dividend income of Rs.2,42,206/- and for earning of such a dividend income the assessee has attributed Rs.5,000/- as disallowable expenses 8 ITA Nos. 3480 & 5064/Mum/2012 Assessment Years: 2008-09 & 2009-10

u/s 14A for earning of the tax free dividend. The assessing officer required the assessee to give his computation sheet for allocating expenses of of Rs.5000/- for the purpose of disallowance u/s 14A. In response, the assessee submitted its computation. However, the AO noted that assessee has not worked out the disallowance under rule 8D. Accordingly, he worked out the disallowance under rule 8D at Rs.4,01,812/- for the purpose of disallowance under section 14A and after giving benefit of Rs.5000/- which was disallowed by the assessee, he added back the remaining amount of Rs.3,96,812/-. The Ld. CIT(A) too has confirmed the disallowance made by the AO after following the decision of Hon'ble Bombay High Court in the case of Godrej and Boyce Manufacturing Company Ltd. Vs. DCIT reported in 328 ITR 381.

11. Before us, learned counsel submitted that the assessing officer has not given or recorded any satisfaction as to why assessee's attribution of expenses for the purposes of earning of exempt income is not correct. The AO has not quantified the expenditure which can be said to be attributable for the earning of exempt income. Moreover, he submitted that assessee has huge interest free fund in the form of reserves and surplus which are to the extent of Rs.8.10 crores, whereas the investment in the shares are only Rs.4.37 crores. These investments were made in the year 1997, therefore, no disallowance on account of interest can be made. Thus, disallowance made under rule 8D by the AO has been done mechanically without fulfilling the conditions as laid down in sub section (2) of section 14. In support of his contention he strongly relied upon the decision of Delhi High Court in the case of Maxopp Investment Ltd. and others Vs. CIT reported in (2012) 347 ITR 272 (Del).

9 ITA Nos. 3480 & 5064/Mum/2012 Assessment Years: 2008-09 & 2009-10

12. On the other hand, Ld. DR strongly relied upon the order of the Ld. CIT(A) and submitted that AO has resorted to rule 8D only when he was not satisfied with the attribution of disallowance made by the assessee and therefore, rule 8D has rightly been applied.

13. We have heard the rival submissions and also perused the relevant finding given in the impugned order. It is an undisputed fact that assessee has made investments in shares, which as on 31.03.2009 stood at Rs.4,37,45,907/- Such investment in shares have resulted into dividend income which is exempt from taxation. In the computation of income the assessee has disallowed Rs.5,000/- for the purpose of earning of exempt income. Though, the assessing officer has perused the assessee's allocation, but without assigning any reason as to why such attribution is not correct, he has straight away resorted to apply rule 8D. As per the mandate of section 14(2), the assessing officer having regard to the account of the assessee has to examine the correctness of the claim of the assessee of such explanation in relation to the exempt income. Only if he is not satisfied with the correctness of the claim, then only he can resort to rule 8D. Moreover, he has also not examine the availability of interest free funds/ surplus funds available with the assessee for making the investment in shares while disallowing interest. Thus, under the facts and circumstances, we are of the opinion that this matter should be restored back to the file of the AO to examine the conditions laid down in section 14(2) and also the assessee's contention regarding availability of surplus funds for making the investments. The assessee will provide all the necessary details in support its claim. Thus, the issue is set aside to the file of the AO, who 10 ITA Nos. 3480 & 5064/Mum/2012 Assessment Years: 2008-09 & 2009-10

will decide the issue afresh and in accordance with the law and after giving due opportunity of hearing to the assessee.

14. In the result, the appeal filed by assessee is allowed for statistical purpose.

15. In the result, the appeal filed by the Assessee for A.Y. 2008-09 is allowed, whereas for A.Y. 2009-10 is allowed for statistical purposes.

Order pronounced in the open court on this 20th day of February, 2015.

Sd/- Sd/- (D.KARUNAKAR RAO) (AMIT SHUKLA) ACCOUNTANT MEMBER JUDICIAL MEMBER

Mumbai, Dated: 20.02.2015 *Srivastava Copy to: The Appellant The Respondent The CIT, Concerned, Mumbai The CIT(A) Concerned, Mumbai The DR "I" Bench

//True Copy// By Order

Dy/Asstt. Registrar, ITAT, Mumbai.