M/s. Ajmera & Shah Associates, Ahmedabad v. The ACIT., Circle-3,, Ahmedabad

ITA 1057/AHD/2007 | 2003-2004
Pronouncement Date: 08-04-2010 | Result: Partly Allowed

Appeal Details

RSA Number 105720514 RSA 2007
Assessee PAN AACFA7085M
Bench Ahmedabad
Appeal Number ITA 1057/AHD/2007
Duration Of Justice 3 year(s) 26 day(s)
Appellant M/s. Ajmera & Shah Associates, Ahmedabad
Respondent The ACIT., Circle-3,, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 08-04-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted B
Tribunal Order Date 08-04-2010
Date Of Final Hearing 08-04-2010
Next Hearing Date 08-04-2010
Assessment Year 2003-2004
Appeal Filed On 12-03-2007
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B BEFORE SHRI N.S. SAINI ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH JUDICIAL MEMBER DATE OF HEARING: 8.04.10 DRAFTED ON:8.04.10 ITA NO.1057/AHD/2007 ASSESSMENT YEAR : 2003-2004 AJMERA & SHAH ASSOCIATES 501 CHINUBHAI CENTER NEHRU BRIDGE ASHRAM ROAD ABAD. VS. ACIT CIR-3 INSURANCE BLDG. AHMEDABAD. PAN/GIR NO. : AACFA 7085M (APPELLANT) .. (RESPONDENT) APPELLANT BY : SMT. URVASHI SODHAN RESPONDENT BY: SMT. NEETA SHAH SR. D.R. O R D E R PER N.S.SAINI ACCOUNTANT MEMBER :- THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-VII AH MEDABAD DATED 17.01.2007. 2. THE FIRST ISSUE INVOLVED IN THE APPEAL IS THAT T HE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) ERRED IN CONFIR MING THE ORDER OF THE LEARNED ASSESSING OFFICER DISALLOWING RS.9 46 8 20/- PAID AS COMMISSION/SUB-BROKERAGE ON THE GROUND THAT NONE OF THE PERSONS TO WHOM COMMISSION/SUB-BROKERAGE ARE PAID ARE REGISTER ED WITH SEBI. 3. THE BRIEF FACTS ARE THAT THE ASSESSEE FIRM IS DO ING BUSINESS OF SHARE BROKING. FOR THE YEAR UNDER CONSIDERATION IT FILED A RETURN DECLARING LOSS OF RS.3 94 925/-. THE LEARNED ASSESSING OFFICER OB SERVED THAT ASSESSEE - 2 - HAS CLAIMED DEDUCTION OF RS.9 46 820/- FOR PAYMENT OF SUB-BROKERAGE TO SEVERAL SUB-BROKERS. THE LEARNED ASSESSING OFFICER DISALLOWED DEDUCTION FOR THE SAME FOR THE REASON THAT SUB-BROKERAGE TO U NREGISTER SUB-BROKERS IS PROHIBITED UNDER SECTION 12 OF SEBI ACT AND THER EFORE COVERED BY EXPLANATION TO SECTION 37(1). 4. IN APPEAL THE LEARNED COMMISSIONER OF INCOME TA X(APPEALS) OBSERVED THAT IN ASSESSEES OWN CASE IN THE ASSESSM ENT YEAR 1999-2000 HIS PREDECESSOR LEARNED COMMISSIONER OF INCOME TAX( APPEALS) HAS CONFIRMED THE DISALLOWANCE MADE ON IDENTICAL FACTS VIDE ORDER DATED 29.11.2004 IN APPEAL NO.CIT(A)VI/CIR.3/99/04-05. FO LLOWING THE PRECEDENT THE LEARNED COMMISSIONER OF INCOME TAX(A PPEALS) CONFIRMED THE DISALLOWANCE MADE BY THE LEARNED ASSESSING OFFI CER . 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE ON RE CORD. BOTH THE PARTIES AGREED BEFORE US THAT THE ISSUE IS COVERED BY THE C ONSOLIDATED ORDER DATED 07.08.2009 OF AHMEDABAD B BENCH OF THE TRIB UNAL IN THE CASE OF SHRI DUSHYANT MAHESHBHAI SHAH IN ITA NO.314 315 AN D 316/AHD/2005 IN ASSESSMENT YEARS 1999-2000 2000-01 AND 2001-02 WH EREIN THE TRIBUNAL HELD THAT COMMISSION PAID TO THE SUB-BROKERS WAS ALLOWABLE DEDUCTION PROVIDED THE COMMISSION SO PAID WAS NOT CONTRARY TO THE CONDITIONS STIPULATED UNDER BYE-LAW 218 OF THE AHMEDABAD STOCK EXCHANGE AND SUCH PAYMENT WAS NOT IN EXCESS OF 40% OF THE BROKERAGE R ECEIVED BY THE ASSESSEE. WE FIND THAT THE TRIBUNAL IN THE CASE OF SHRI DUSHYAN MAHESHBHAI SHAH HAS HELD AS UNDER:- 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS A VAILABLE ON RECORD. BOTH THE PARTIES AGREED BEFORE US THAT THE ISSUE IS DECIDED BY ITAT AHMEDABAD BENCH A FOR ASSESSMENT YEAR - 3 - 2001-02 IN THE CASE OF ACIT VS. H.NYALCHAND FINANC IAL SERVICES LTD. & OTHERS VIDE ORDER DATED 27/02/2009 AND THE MATTER WAS RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER TO RE-ADJUDICATE THE ISSUE AFRESH IN TERMS OF THE DIRECTIONS GIVEN B Y THE TRIBUNAL. WE FIND THAT THE TRIBUNAL WHILE DECIDING THE ISSUE HAS OBSERVED AS UNDER:- 46 WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS AND PERUSED THE MATERIAL ON RECORD ALONG WITH THE ORDER OF THE TAX AUTHORITIES BELOW. THE ISSUE BEFORE US IS WHETH ER THE COMMISSION PAID BY THE ASSESSEE TO THE PERSONS WHO HAVE INTRODUCED THE CLIENTS CAN BE DISALLOWED IN ACCORD ANCE WITH EXPLANATION TO SECTION 37(1). THERE IS NO DISPUTE ABOUT THE SERVICES RENDERED BY THESE PERSONS. THE AO HAS D ISALLOWED THE BY APPLYING EXPLANATION TO SECTIO N 37(1) EXPLANATION TO SECTION 37(1) STATES AS UNDER: 'EXPLANATION:- 'FOR THE REMOVAL OF DOUBTS IT W HER EBY DECLARED THAT ANY EXPENDITURE INCURRED BY AN ASSESSEE FOR ANY PURPOSE WHICH IS AN OFFENCE OR WHI CH IS PROHIBITED BY LAW SHALL NOT BE DEEMED TO HAVE BEEN INCURRED FOR THE PURPOSE OF BUSINESS OR PROFESSION AND NO DEDUCTION OR ALLOWANCE SHALL BE MADE IN OF SUCH EXPENDITURE.' SECTION 37(1) ALLOWS DEDUCTION OF ANY EXPENDITURE N OT BEING AN EXPENDITURE OF THE NATURE REFERRED TO IN SECTION S 30 TO 36 AND NOT BEING IN THE NATURE OF CAPITAL EXPENDITURE OR PERSONAL EXPENSES OF THE ASSESSEE WHICH HAVE BEEN L AID OUT OR EXPENDED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS OR PROFESSION WHILE COMPUTING THE INCOME CHARGEABLE UNDER THE HEAD 'PROFITS AND GAINS OF BUS INESS OR PROFESSION'. EXPLANATION WHICH PROHIBITS DEDUCTION OF ANY SUCH EXPENDITURE AS IS ALLOWABLE U/S 37(1) WAS INSE RTED BY THE FINANCE ACT 1998 WITH EFFECT FROM 1-4-1962. TH IS EXPLANATION IS CLARIFICATORY IN NATURE WHICH IS CLE AR FROM THE WORDS 'FOR THE REMOVAL OF DOUBTS' APPEARING IN THE EXPLANATION. FROM THE PLAIN READING OF THIS EXPLANA TION IT IS CLEAR THAT IF ANY EXPENDITURE WHICH IS OTHERWISE AL LOWABLE IN ACCORDANCE WITH SECTION 37(1) CANNOT BE ALLOWED IF IT HAS BEEN INCURRED BY AN ASSESSEE FOR ANY PURPOSE WHICH IS AN OFFENCE OR PROHIBITED BY LAW. THIS EXPLANATION DEEM S SUCH EXPENDITURE NOT HAVE BEEN INCURRED FOR THE PURPOSE OF - 4 - BUSINESS OR PROFESSION. THE CASE OF THE REVENUE IS THAT THE INTRODUCTORY COMMISSION PAID BY THE ASSESSEE IS DIS ALLOWABLE IN VIEW OF EXPLANATION TO SECTION 37(1). EXPLANATI ON TO SECTION 37(1) WILL APPLY ONLY IF AN EXPENDITURE IS OTHERWISE ALLOWABLE U/S. 37(1). THEREFORE SO FAR AS ALLOWAB ILITY OF THE EXPENDITURE U/S 37(1) IS CONCERNED THE REVENUE DO NOT DISPUTE THAT THIS EXPENDITURE HAS BEEN INCURRED OR EXPENDED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS OR PROFESSION. THIS EXPENDITURE IS ALSO NOT IN THE NATURE OF CAPITAL EXPENDITURE OR PERSONAL EXPENDITURE. TH IS EXPENDITURE IS ALSO NOT OF THE NATURE DESCRIBED IN SECTIONS 30 TO 36 OF THE ACT. THE CONTENTION OF THE REVENUE IS THAT EXPLANATION TO SECTION 37(1) DEBARS THE ASSESSEE FO R CLAIMING THE DEDUCTION OF THIS EXPENDITURE BECAUSE SECTION 1 2 OF THE SEBI ACT PROHIBITS THE ASSESSEE TO PAY INTRODUCTORY COMMISSION TO ANY PERSON. SINCE THE EXPENDITURE HAS BEEN INCURRED BY THE ASSESSEE CONTRARY TO THE PROVISIONS OF SECTION 12 OF THE SEBI ACT THEREFORE IT IS PROHIBITED BY THE LAW PREVAILING IN THE COUNTRY. 47. NOW THE QUESTION BEFORE US IS WHETHER INCURRE NCE OF SUCH EXPENDITURE IS PROHIBITED BY SECTION 12 OF THE SEBI ACT. SECTION 12 OF THE SEBI ACT READS AS UNDER: SECTION 12 OF THE SECURITIES AND EXCHANGE BOARD OF INDIA ACT READS AS FOLLOWS: 'NO STOCK-BROKER SUB-BROKER SHARE TRANSFER AGENT BANKER TO AN ISSUE TRUSTEE OF TRUST DEED REGISTRA R TO AN ISSUE MERCHANT BANKER UNDERWRITER PORTFOLIO MANAGER INVESTMENT ADVISER AND SUCH OTHER INTERMEDIARY WHO MAY BE ASSOCIATED WITH SECURITIES MARKET SHALL BUY SELL OR DEAL IN SECURITIES UNDER AND IN ACCORDANCE WITH CONDITION OF A CERTIFICATE OF REGISTRATION OBTAINED FROM THE BOARD IN ACCORDANCE WITH THE (REGULATION) MADE UNDER THIS ACT. SECURITIES AND EXCHANGE BOARD OF INDIA (STOCK-BROKE RS AND SUB-BROKERS) RULES DEFINES SUB-BROKER AS :- 'SUB-BROKER MEANS ANY PERSON NOT BEING A MEMBER OF STOCK EXCHANGE WHO ACT ON BEHALF OF STOCK BROKER AS AN AGENT OR OTHERWISE FOR ASSISTING INVESTORS I N - 5 - BUYING SELLING OR DEALING IN SECURITIES THROUGH SUC H STOCK-BROKERS'. FROM THE READING OF THIS SECTION IT IS APPARENTLY C LEAR THAT THIS SECTION REQUIRES REGISTRATION OF THE STOCK-BRO KER SUB- BROKER SHARE TRANSFER AGENT BANKER TO AN ISSUE TRUSTEE OF TRUST DEED REGISTRAR TO AN ISSUE MERCHANT BANKER UNDERWRITER PORTFOLIO MANAGER INVESTMENT ADVISER AND SUCH OTHER INTERMEDIARIES ASSOCIATED WITH SECURITIES MAR KET AND WITHOUT THE REGISTRATION OBTAINED IN ACCORDANCE WIT H THE REGULATION UNDER SEBI ACT THESE PERSONS CANNOT BUY SELL OR DEAL IN SECURITIES. SUB-BROKER HAS BEEN DEFINED UNDER THE RULES TO MEAN A PERSON WHO ACTS ON BEHALF OF STOCK BROKER AS AN AGE NT OR OTHERWISE ASSISTS INVESTORS IN BUYING SELLING OR D EALING IN SECURITIES THROUGH SUCH BROKERS. THE REQUIREMENT OF THE SEBI ACT IS FOR THE SUB-BROK ER AND STOCK-BROKER TO BE REGISTERED WITH SEBI. AS A CONSE QUENCE A SUB-BROKER CANNOT CARRY ON ANY BUSINESS TRANSACTION WITH A STOCK-BROKER UNLESS THE SUB-BROKER HAS RECEIVED A CERTIFICATION OF REGISTRATION FROM SEBI. SEBI HAS PRESCRIBED VARIOUS REQUIREMENTS BEFORE A SUB-BROKER CAN BE GRA NTED A CERTIFICATE OF REGISTRATION BY SEBI. WE HAVE ALSO GONE THROUGH THE REGULATION (33) OF TH E NATIONAL STOCK EXCHANGE OF INDIA. THIS REGULATION D EALS WITH THE SHARING OF BROKERAGE AND READS AS UNDER: 'SHARING OF BROKERAGE (33)(A) A TRADING MEMBER MAY NOT SHARE BROKERAGE WITH A PERSON WHO - (I) IS ONE FOR OR WITH WHOM TRADING MEMBERS ARC FORBIDDEN TO DO BUSINESS UNDER THE BYE-LAWS RULES AND REGULATIONS OF THE EXCHANGE; (II) IS A TRADING MEMBER OR EMPLOYEE IN THE EMPLOYMENT OF ANOTHER TRADING MEMBER; (B) IRRESPECTIVE OF ANY ARRANGEMENT FOR THE SHARING OF BROKERAGE WITH ANY PERSON THE TRADING MEMBER SHALL BE DIRECTLY AND WHOLLY - 6 - LIABLE TO EVERY OTHER MEMBER WITH WHOM SUCH TRADING MEMBER EFFECTS ANY DEAL ON THE EXCHANGE.' FROM THE READING OF THE AFORESAID BYE-LAW IT IS APP ARENT THAT CLAUSE (A) PROHIBITS THE SHARING OF BROKERAGE TO A PERSON WITH WHOM TRADING MEMBERS ARE FORBIDDEN TO DO THE BUSINESS UNDER THE BYE-LAWS RULES AND REGULATIONS OF THE EXCHANGE OR SUCH PERSON IS A TRADING MEMBER OR EMPL OYEE IN THE EMPLOYMENT OF ANOTHER TRADING MEMBER. CLAUSE (B ) OF BYE-LAW (33) DOES NOT PROHIBIT SHARING OF THE BROKE RAGE WITH ANY OTHER PERSON BUT ONLY STATES THAT THE TRADING M EMBER SHALL BE DIRECTLY AND WHOLLY LIABLE TO EVERY OTHER MEMBER WITH WHOM SUCH TRADING MEMBER AFFECTS ANY DEAL ON T HE EXCHANGE. THIS BYE-LAW IN OUR OPINION DOES NOT PR OHIBIT THE PAYMENT OF THE COMMISSION TO THE PERSONS WHO HAVE INTRODUCED THE CLIENTS TO THE ASSESSEE. THE COMMISS ION PAID TO SUCH PERSONS IN OUR OPINION CANNOT BE REGARDED CONTRARY TO THE BYE-LAW (33) READ WITH SECTION 12 OF THE SEB I ACT. WE HAVE ALSO GONE THROUGH BYE-LAW 218 OF THE STOCK EXCHANGE OF AHMEDABAD. THIS BYE-LAW READS AS UNDER: '218.(A) A MEMBER MAY SHARE BROKERAGE AS PROVIDED IN SUB-CLAUSE (B) WITH A REMISIER AUTHORIZED CLERK OR EMPLOYEE IN HIS OWN EXCLUSIVE EMPLOYMENT. HE MAY SIMILARLY SHARE BROKERAGE WITH ANY OTHER PERSON INTRODUCING A CONSTITUENT PROVIDED SUCH PERSON - (I) IS NOT ONE FOR OR WITH WHOM MEMBERS ARE FORBIDDEN TO DO BUSINESS SUNDER THE RULES BYE- LAWS AND REGULATION OF THE EXCHANGE; (II) IS NOT A REMISIER AUTHORIZED CLERK OR EMPLOY EE IN THE EMPLOYMENT OF ANOTHER MEMBER; (III) DOES NOT ADVERTISE IN THE PUBLIC PR ESS OR IN ANY OTHER MANNER THAT HE IS ACTING AS A BROKER; (IV) DOES NOT ACT AS A BROKER WITHIN A DISTANCE OF FIFTY MILES OF THE CITY OF AHMEDABAD; - 7 - (V) DOES NOT PASS CONTRACTS IN HIS OWN NAME OR ISSUE PRICE LISTS ON PAMPHLETS OR CIRCULARS IN RESPECT OF BUSINESS IN SECURITIES IF WORKING WITHIN A DISTANCE OF FIFTY MILES OF THE CITY OF AHMEDABAD; (VI) DOES NOT ISSUE PRICE LISTS OR PAMPHLETS OR CIRCULARS IN RESPECT OF BUSINESS SIN SECURITIES TO OTHER THAN HIS OWN CONSTITUENTS IF ACTING AS A BROKER BEYOND THE DISTANCE OF FIFTY MILES FROM THE CITY OF AHMEDABAD. PERCENTAGE SHARE OF BROKERAGE (B) A MEMBER MAY PAY HIS REMISIER OR AUTHORIZED CLERK A SHARE NOT EXCEEDING 50 PER CENT AND ANY OTHER EMPLOYEE OR OTHER PERSON SHARING BROKERAGE AS PROVIDED IN SUB-CLAUSE (A) A SHARE NOT EXCEEDING 40 PER CENT OF THE BROKERAGE CHARGED TO THE CONSTITUE NT INTRODUCED BY HIM.' FROM THE READING OF THIS BYE-LAW ALSO IT IS APPARE NTLY CLEAR THAT THERE IS NO PROHIBITION IN THE PAYMENT OF THE COMMISSION TO ANY OTHER PERSON INTRODUCING THE CLIE NT TO THE ASSESSEE PROVIDED IT DOES NOT FALL WITHIN BYE-LAW 2 18(A)(I) TO (VI). CLAUSE (B) OF BYE-LAW 218 PUTS A RESTRICTION ON THE PERCENTAGE OF THE SHARING OF BROKERAGE WITH SUCH P ERSONS WHO ARE NOT REMISIER OR AUTHORIZED CLERK. TO SUCH PERSON THE ASSESSEE CANNOT PAY BROKERAGE MORE THAN 40% OF THE BROKERAGE CHARGED FROM THE CUSTOMERS INTRODUCED BY HIM. THE FACTS OF THE CASE DENOTE THAT THE ASSESSEE HAS PAID THE COMMISSION TO THE EXTENT OF 50% OF THE BROKERAGE WH ILE IT CANNOT PAY AS PER REGULATION 218 OF THE AHMEDABAD S TOCK EXCHANGE 40% OF THE BROKERAGE PROVIDED THE PERSON T O WHOM THE COMMISSION IS PAID COMPLIES WITH THE CONDI TIONS AS STIPULATED UNDER BYE-LAW 218(A)(I) TO (VI). WE D O NOT FIND THE DETAILED FACTS ABOUT THE INTRODUCTORY COMMISSIO N WHETHER IT COMPLIES WITH THE CONDITIONS AS STIPULAT ED UNDER BYE-LAW 218 OR NOT. THEREFORE IN THE INTEREST OF J USTICE AND FAIR PLAY TO BOTH THE PARTIES AND ALSO THE FACT THA T SINCE THERE IS NO PROHIBITION U/S 12 OF THE SEBI ACT WE SET-AS IDE THE ORDER OF THE CIT(A) AND RESTORE THE ISSUE TO THE FI LE OF THE AO WITH THE DIRECTION THAT THE AO SHOULD ALLOW THE DE DUCTION TO THE ASSESSEE IN RESPECT OF INTRODUCTORY COMMISSION PAID BY - 8 - THE ASSESSEE TO THE PERSONS PROVIDED THE COMMISSION SO PAID IS NOT CONTRARY TO THE CONDITIONS STIPULATED UNDER BYE-LAW 218 AS REPRODUCED BY US HEREINABOVE. THE COMMISSION SO PAID CANNOT EXCEED 40% OF THE BROKERAGE RECEIVED BY THE ASSESSEE BECAUSE DURING THE COURSE OF THE ARGUMENTS BEFORE US IT WAS POINTED OUT THAT THE COMMISSION WAS PAID AT THE RATE OF 50% OF THE BROKERAGE. THE COMMISSION TO THE EXTENT IT EXCEEDS 40% OF THE BROKERAGE RECEIVED BY THE ASS ESSEE FROM THE CLIENTS IS CLEARLY PROHIBITED BY LAW AND T O THAT EXTENT IN OUR OPINION EXPLANATION TO SECTION 37( 1) WILL CLEARLY BE APPLICABLE. THE AO SHALL RE-DECIDE THIS ISSUE AFTER CONSIDERING BYE-LAW 218 OF THE STOCK EXCHANG E AHMEDABAD AFTER GIVING PROPER AND REASONAB LE OPPORTUNITY TO THE ASSESSEE. HE IS FURTHER DIRECTED TO ALLOW THE COMMISSION ONLY TO THE EXTENT IT. IS PERMISSIBL E IN ACCORDANCE WITH BYE-LAW 218 OF THE AHMEDABAD STO CK EXCHANGE. THUS THIS GROUND IS ALLOWED FOR ST ATISTICAL PURPOSE. 10. FACTS BEING IDENTICAL AND IN THE ABSENCE OF ANY DISTINGUISHING FEATURES POINTED OUT BY THE LD. DEPA RTMENTAL REPRESENTATIVE RESPECTFULLY FOLLOWING THE PRECEDEN T WE SET-ASIDE THE ORDER OF THE LD. CIT(APPEALS) AND RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION THAT THE ASSESSING OFFICER SHOULD ALLOW THE DEDUCTION TO THE ASSESSEE IN RESP ECT OF INTRODUCTORY COMMISSION PAID BY THE ASSESSEE TO THE PERSONS PROVIDED THE COMMISSION SO PAID IS NOT CONTRARY TO THE CONDITIONS STIPULATED UNDER BYE-LAW 218 AS REPRODUCED BY US HE REINABOVE. THE COMMISSION SO PAID CANNOT EXCEED 40% OF THE BRO KERAGE RECEIVED BY THE ASSESSEE BECAUSE DURING THE COURSE OF THE ARGUMENTS BEFORE US IT WAS POINTED OUT THAT THE COM MISSION WAS PAID AT THE RATE OF 50% OF THE BROKERAGE. THE COMM ISSION TO THE EXTENT IT EXCEEDS 40% OF THE BROKERAGE RECEIVED BY THE ASSESSEE FROM THE CLIENTS IS CLEARLY PROHIBITED BY LAW AND T O THAT EXTENT IN OUR OPINION EXPLANATION TO SECTION 37( 1) WILL CLE ARLY BE APPLICABLE. THE ASSESSING OFFICER SHALL RE-DECIDE THIS ISSUE A FTER CONSIDERING BYE-LAW 218 OF THE STOCK EXCHANGE AHMEDABA D AFTER GIVING PROPER AND REASONABLE OPPORTUNITY TO THE ASSESSEE. HE IS FURTHER DIRECTED TO ALLOW THE COMMISSION ONLY TO TH E EXTENT IT. IS PERMISSIBLE IN ACCORDANCE WITH BYE-LAW 218 OF THE AHMEDABAD STOCK EXCHANGE. THUS THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSE. - 9 - 6. FACTS BEING IDENTICAL RESPECTFULLY FOLLOWING TH E ABOVE QUOTED ORDER OF THE TRIBUNAL WE RESTORE THE MATTER BACK TO THE FILE OF THE LEARNED ASSESSING OFFICER TO REDECIDE THIS ISSUE AFTER CONS IDERING BYE-LAW 218 OF THE STOCK EXCHANGE AHMEDABAD AFTER GIVIN G PROPER AND REASONABLE OPPORTUNITY TO THE ASSESSEE. HE IS FURTH ER DIRECTED TO ALLOW THE COMMISSION ONLY TO THE EXTENT IT IS PERMISSIBLE IN ACCORDANCE WITH BYE-LAW 218 OF THE AHMEDABAD STOCK EXCHANGE. TH US THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSE. 7. THE SECOND ISSUE INVOLVED IN THIS APPEAL IS THAT WHEN THE LOSS AS PER INCOME TAX RETURN RESULTED IN PROFIT BY ADDITIO N MADE IN THE ASSESSMENT THE PROVISIONS OF LEVY OF INTEREST UNDE R SECTION 234B AND 234C WOULD NOT APPLY AND HENCE INTEREST CHARGED UN DER SECTION 234B AND 234C BE CANCELLED. 8. THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASS ESSEE DID NOT MAKE ANY SUBMISSION ON THIS GROUND OF APPEAL. THER EFORE THIS GROUND OF APPEAL OF THE ASSESSEE IS DISMISSED FOR WANT OF PRO SECUTION. 9. IN THE RESULT THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE H EARING IN THE PRESENCE OF THE PARTIES ON 08/04/2010. SD/- SD/- ( MAHAVIR SINGH) ( N.S. SAINI ) JUDICIAL MEMBER ACC OUNTANT MEMBER AHMEDABAD; DATED 08/04/2010 PARAS# - 10 - COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-VI AHMEDABAD. 5. THE DR AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER //TRUE COPY// (DY./ASSTT.REGISTRAR) ITAT AHMEDABAD