DCIT 4(1)(1), MUMBAI v. D GAS SHARE AND STOCK BROKERS P.LTD, MUMBAI

ITA 153/MUM/2016 | 2008-2009
Pronouncement Date: 30-11-2017 | Result: Dismissed

Appeal Details

RSA Number 15319914 RSA 2016
Assessee PAN AABCG1362K
Bench Mumbai
Appeal Number ITA 153/MUM/2016
Duration Of Justice 1 year(s) 10 month(s) 19 day(s)
Appellant DCIT 4(1)(1), MUMBAI
Respondent D GAS SHARE AND STOCK BROKERS P.LTD, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 30-11-2017
Appeal Filed By Department
Tags No record found
Order Result Dismissed
Bench Allotted Not Allotted
Tribunal Order Date 30-11-2017
Assessment Year 2008-2009
Appeal Filed On 11-01-2016
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH MUMBAI BEFORE SHRI RAJENDRA AM AND SHRI AMARJIT SINGH JM / I .T.A. NO. 153 / MUM/ 201 6 ( / ASSESSMENT YEAR: 20 08 - 09 ) DCIT 4(1)(1) ROOM NO. 640 6 TH FLOOR AAYAKA R BHAVAN M.K. ROAD MUMBAI 400 020 / VS. M/S. G DAS SHARE AND STOCK BROKERS PVT. LTD. OFF NO. 6 2 ND FL OOR. 20 RAJAB A HADUR MANSIN AMBA LAL DOSHI MARG FORT MUMBAI. 400023 ./ ./ PAN/GIR NO. : AABCG 1362 K ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING : 11.12 .2017 / DATE OF PRONOUNCEMENT : 20 . 12 .2017 / O R D E R PER AMARJIT SINGH J M: THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 29 . 10.2015 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 9 MUMBAI [HEREINAFTE R REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y. 20 08 - 09 . 2 . THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) ERRED IN HOLDING THAT REBATE AVAILABLE TO AN ASSESSEE U/S 88E OF THE ACT WAS LIABLE TO BE ADJUSTED WHILE COMPUTING TAX LIABILIT Y U/S 115JB OF THE ACT BY RELYING ON THE DECISION OF REVENUE BY : SHRI V. VIDHYADHAR (DR) ASSESSEE BY: SHRI S.M. BANDI (AR) ITA. NO. 153/M/2016 A.Y. 2008 - 09 2 HONBLE KARNATAKA HIGH COURT WHICH IS NOT THE JURISDICTIONAL ONE IN THE CASE OF M/S HORIZON CAPITAL LTD. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) ERRED IN NOT APP RECIATING THE FACT THAT STT PAID IS NOT ANALOGOUS TO TAXES SUCH AS TDS OR ADVANCE TAX OR SELF A SSESSMENT TAX PAID UNDER THE IT ACT AND THUS IF TAX PAYABLE AFTER ALLOWING REBATE U/S 88E IS LESS THAN 10% OF ITS BOOK PROFIT PROVISION OF SECTION 115JB ARE APPLICABLE. 3. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD NEW GROUND WHICH MAY BE NECESSARY. 3 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE A.Y. 2008 - 09 ON 28.08.2008 DECLARING TOTAL INCOME TO THE TUNE OF RS.5 69 17 715/ - . THE CASE WAS SELECTED FOR SCRUTINY AND ASSESSMENT U/S 143(3) OF THE I.T. ACT 1961 WAS COMPLETED ON 26.04.2010 DETERMINING THE TOTAL INCOME TO THE TUNE OF RS.5 74 77 530/ - . THE ASSESSEE COMPANY IS A MEMBER OF STOCK EXCHANGE AN D ENGAGED IN THE BUSINESS OF STOCK BROKING SHARE TRADING AND INVESTOR IN SHARES. DURING THE YEAR UNDER CONSIDERATION IT WAS OBSERVED THAT THE ASSESSEE COMPANY WAS DEALING IN TRADING OF SHARES AND ALLOWED REBATE U/S 88E OF THE ACT OF RS.1 54 26 582/ - . AFT ER ALLOWANCE OF REBATE U/S 88E OF THE I.T. ACT THE NET TAX PAYABLE WAS DETERMINED @ RS.9 10 959/ - UNDER THE NORMAL PROVISION OF INCOME TAX. HOWEVER THE TAX LIABILITY OF THE ASSESSEE U/S 115JB OF THE I.T. ACT WORKED OUT TO THE TUNE OF RS.57 08 045/ - (10% OF (57548735 + 528892 997172) I N VIEW OF THE PROVISION U/S 115JB OF THE ACT . T HE ASSESSEE WAS NOT UNDER OBLIGATION TO PAY THE INCOME TAX AT LEAST TO THE EXTENT OF 10% OF I TS BOOK PROFIT. SINCE THE ASSESSEE FAILED TO COMPLY THE SAID PROVISION THEREFORE AN AMOUNT OF RS.57 08 045/ - WAS ASSESSED TO THE INCOME OF THE ASSESSEE I N VIEW OF THE PROVISION U/S ITA. NO. 153/M/2016 A.Y. 2008 - 09 3 115JB OF THE ACT AND TAX LIABILITY WAS DETERMINED TO THE TUNE OF RS. 64 67 214/ - U/S 115JB OF THE ACT. FEELING AGGRIEVED THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) WHO ALLOWED THE CLAIM OF THE ASSESSEE THEREFORE THE REVENUE HAS FILED THE PRESENT APPEAL BEFORE US. ISSUE NO.1 & 2 : - 4 . ISSUE NO. 1 & 2 ARE INTER - CONNECTED THEREFORE ARE BEING TAKEN UP TOGETHER FOR ADJUDICATION. UNDER THESE ISSUES THE REVEN UE HAS CHALLENGED THE ALLOWANCE OF CLAIM U/S 88E OF THE ACT IN COMPUTING THE TAX LIABILITY U/S 115JB OF THE I.T. ACT 1961 . BEFORE GOING FURTHER IT IS NECESSARY TO ADVERT THE FINDING OF THE CIT(A) ON RECORD.: - I HAVE CONSIDERED THE FACTS OF THE CASE AS W ELL AS STAND OF AO AND SUBMISSION OF THE APPELLANT. IN THE CASE UNDER CONSIDERATION THE ONLY DISPUTE IS AS TO WHETHER THE REBATE U/S 88E OF THE ACT IS ALLOWABLE WHILE COMPUTING THE INCOME AND TAX PAYABLE U/S 115JB OF THE ACT. THE HONBLE KARNATAKA HIGH COU RT AND VARIOUS BENCHES OF HONBLE ITAT AS MENTIONED ABOVE ARE IN FAVOUR OF APPELLANT. IN EARLIER ASSESSMENT YEAR THE DECISION OF MY PREDECESSOR AND OF HONBLE ITAT G BENCH DECISIONS ARE IN FAVOUR OF APPELLANT. THEREFORE FOLLOWING THE DECISION OF MY P REDECESSOR IN HIS OWN CASE VIDE ORDER ITA NO. 5773/M/2013 (A.Y. 2007 - 08) WHERE IT IS HELD THAT REBATE U/S 88E OF THE ACT IS ALLOWABLE TO THE APPELLANT WHILE COMPUTING ITS JUDGMENT IN PARA 4 ALSO BROUGHT ON RECORD THAT NO ANY CONTRARY DECISION WAS BROUGHT TO THEIR NOTICE IN THEIR HEARING CONCLUDED AND PRONOUNCE ON 15/04/2015 AND WRITTEN ORDER DATED 08/07/2015 AND WRITTEN ORDER 08/07/2015 PROVIDED TO APPELLANT AND CIT(IV) MUMBAI AND TO DCIT - 4(1)(1) MUMBAI. THEREFORE NOW FOLLOWING THE ABOVE DECISION THE AO IS DIRECTED TO ALLOW DEDUCTION U/S 88E OF THE ACT TO THE APPELLANT WHILE COMPUTING THE TAX LIABILITY U/S 115JB OF THE ACT. 5 . ON APPRAISAL OF THE ABOVE SAID FINDING WE NOTICED THAT THE CIT(A) HAS DECIDED THE MATTER OF CONTROVERSY IN FAVOUR OF THE ITA. NO. 153/M/2016 A.Y. 2008 - 09 4 ASSE SSEE IN VIEW OF THE DECISION PASSED BY THE HONBLE ITAT MUMBAI BENCH IN THE ASSESSEES OWN CASE FOR THE A.Y. 2007 - 08. THE FACTS ARE NOT DISTINGUISHABLE AT THIS STAGE. NO NEW MATERIAL HAS BEEN BROUGHT BY REVENUE ON RECORD TO WHICH IT CAN BE ASSUMED THAT THE CIT(A) HAS ARRIVED AT WRONG DECISION. NO NEW LAW HAS BEEN BROUGHT INTO THE NOTICE. TAKING INTO ACCOUNT ALL THE FACTS AND CIRCUMSTANCES OF THE CASE WE ARE OF THE VIEW THAT THE CIT(A) HAS PASSED THE ORDER JUDICIOUSLY AND CORRECTLY WHICH IS NOT LIABLE TO B E INTERFERE WITH AT THIS APPELLATE STAGE. THEREFORE THESE ISSUE S ARE DECIDED IN FAVOUR OF THE ASSESSEE AGAINST THE REVENUE. 6 . IN THE RESULT THE APPEAL FILED BY THE REVENUE IS HEREBY ORDERED TO BE DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 20. 12. 2 017 . SD/ - SD/ - ( RAJENDRA ) (AMARJIT SINGH) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; DATED : 20. 12 . . 2017 VIJAY ITA. NO. 153/M/2016 A.Y. 2008 - 09 5 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. / DR ITAT MUMBAI 6. / GUARD FILE. / BY ORDER //TRUE COPY// / / (DY./ASSTT. REGISTRAR) / ITAT MUMBAI