STANROSE MAFATLAL INVESTMENTS AND FINANACE LTD, MUMBAI v. ITO RG 3(3)(3), MUMBAI

ITA 5440/MUM/2009 | 2004-2005
Pronouncement Date: 03-11-2017 | Result: Partly Allowed

Appeal Details

RSA Number 544019914 RSA 2009
Assessee PAN AAACS5513K
Bench Mumbai
Appeal Number ITA 5440/MUM/2009
Duration Of Justice 8 year(s) 1 month(s) 2 day(s)
Appellant STANROSE MAFATLAL INVESTMENTS AND FINANACE LTD, MUMBAI
Respondent ITO RG 3(3)(3), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 03-11-2017
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted I
Tribunal Order Date 03-11-2017
Date Of Final Hearing 11-01-2017
Next Hearing Date 11-01-2017
Assessment Year 2004-2005
Appeal Filed On 01-10-2009
Judgment Text
INCOME-TAX APPELLATE TRIBUNAL -IBENCH MUMBAI BEFORE S/SHRI RAJENDRA ACCOUNTANT MEMBER AND SAKTIJIT DEY JUDICIAL MEMBER / ITA NO. 5440/MUM/2009: /ASSESSMENT YEAR:2004-05 STANROSE MAFATLAL INVESTMENTS AND FINANCE LIMITED 57-A VIJAYALAXMI MAFATLAL CENTRE DR.G. DESHMUKH MARG PEDDAR ROAD MUMBAI-400 026. PAN:AAACS 5513 K VS. INCOME TAX OFFICER RANGE-3(3)(3) AAYAKAR BHAVAN M.K. ROAD MUMBAI-400 020. ( /APPELLANT ) ( / RESPONDENT) REV ENUE BY: SHRI B.C.S. NAIK-DR ASS ESSEE BY: SHRI J.D. MISTRI / DATE OF HEARING: 01/09/2017 / DATE OF PRONOUNCEMENT: 03.11.2017 1961 254(1) ORDER U/S.254(1)OF THE INCOME-TAX ACT 1961(ACT) / PER RAJENDRA A.M. - CHALLENGING THE ORDERS DATED 23/07/2009 OF THE CIT( A)- XXXII MUMBAI THE ASSESSEE HAS FILED PRESENT APPEAL.ASSESSEE-COMPANY ENGAGED IN BU SINESS OF INVESTMENT AND TRADING IN SHARES LEASING AND HIRE PURCHASE AND CORPORATE LEND ING AND FINANCING FILED ITS RETURN OF INCOME ON 30/10/2004 DECLARING TOTAL LOSS AT RS.2.7 23 LAKHS.THE ASSESSING OFFICER(AO) COMPLETED THE ASSESSMENT U/S.143(3) OF THE ACT ON 2 7.12.2006 DETERMINING ITS INCOME AT RS. 55.29 LAKHS.FIRST GROUND OF APPEAL BEING GENERAL IN NATURE IS NOT BEING ADJUDICATED. 2. SECOND GROUND OF APPEAL IS ABOUT DISALLOWANCE OF D EPRECIATION ON LEASED ASSETS OF RS.6.20 LAKHS THAT A FURTHER AMOUNT OF RS.3.33 LAKHS WAS CL AIMED IN COMPUTATION OF INCOME ON ACCOUNT OF LEASE EQUALISATION.AFTER ANALYSING THE T RANSACTION HE HELD THAT THE ASSESSEE WAS ARRANGING THE LEASE TRANSACTIONS IN SUCH A WAY THAT IT REMAINED THE LEGAL OWNER OF THE ASSETS YET NEVER CAME TO POSSESS THE SAME THAT THE GOOD WE RE NEVER RETURNED TO THE ASSESSEE AT THE END OF THE LEASE PERIOD THAT THE TITLE IN THE ASSET S WOULD PASS TO THE CUSTOMER AT THE END OF LEASE PERIOD FOR A NOMINAL RESIDUAL CONSIDERATION T HAT RIGHT IN THE BEGINNING THE TOTAL COST WAS APPROPRIATED IN THE FORM OF SECURITY DEPOSIT THAT T HE TRANSACTIONS ENTERED INTO BY IT IN REALITY WERE FINANCIAL TRANSACTIONS THAT IT POSSESSED THE O WNERSHIP OVER THE ASSETS ONLY FOR NAME SAKE THAT THE LESSEE WHO TOOK DELIVERY WOULD ENJOY USE A ND OCCUPATION OF PROPERTY THAT THE LESSEE WOULD MAINTAIN AND OPERATE THE MACHINERY THAT IT WO ULD ALSO GET PROPERTY INSURED AND ALSO PAY NECESSARY TAXES AND OTHER CHARGES.REFERRING TO JUDGMENT OF M/S. GOWRI SHANKER FINANCES 5440/M/09- STANROSE MAFATLAL INVESTMENTS & FINANCE LTD. 2 LTD.(248 ITR 713) HE HELD THAT THE ASSESSEE HAD WRO NGLY CLAIMED THE DEPRECIATION AMOUNTING TO RS.6.20 LAKHS AND ADDED THE SAME TO ITS INCOME. 2.1. AGGRIEVED BY THE ORDER OF THE AO THE ASSESSEE PREFE RRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY(FAA)AND MADE ELABORATE SUBMISSI ONS.IT ALSO RELIED ON CERTAIN CASE LAWS. AFTER CONSIDERING AVAILABLE MATERIAL THE FAA HELD T HAT THE LEASE AGREEMENT IN THE CASE OF THE ASSESSEE WERE NON CANCELABLE AT THE INSTANCE OF LES SEE.HOWEVER FOR ALL PRACTICAL PURPOSES THE LESSEE WAS OWNER OF THE PROPERTY AND THAT HE WAS SO LELY RESPONSIBLE IN RESPECT OF THE PROPERTY AND THE ASSESSEE WAS ONLY A TITULAR OWNER THAT THE LEASE TRANSACTIONS OF THE ASSESSEE WERE SAME AS FINANCIAL TRANSACTIONS.FINALLY HE UPHELD TH E DISALLOWANCE OF DEPRECIATION MADE BY THE AO.HE FURTHER HELD THAT RESIDUAL SALE PRICE OF LEAS ED ASSETS WAS IN THE NATURE OF REVENUE RECEIPTS AND ADDITION OF RS.1.67 LAKHS HAD TO BE U PHELD. WITH REGARD TO LEASE EQUALISATION CHARGES HE HELD T HAT SAME DID NOT REPRESENT ANY REAL INCOME THAT IT WAS ONLY IN THE NATURE OF ADJUSTMENT ENTRY REPRESENTING RECOVERY OF CAPITAL AMOUNT INHERENT IN LEASE RENTALS.THEREFORE THE ADDI TION OF RS.3.33.LAKHS IN RESPECT OF LEASE EQUALISATION WAS DELETED. 2.2. BEFORE US THE AUTHORISED REPRESENTATIVE(AR)STATED T HAT THE ASSESSEE OWNED THE ASSETS THAT IT HAD LEASED OUT THE ASSETS IN NORMAL COURSE OF ITS BUSINESS THAT THERE WAS NO JUSTIFICATION FOR NOT ALLOWING DEPRECIATION ON ASSETS OF THE ASSE SSEE THAT TRANSFER OF ASSETS TO LESSEES SHOULD NOT HAVE BEEN THE DECIDING FACTOR FOR REJECTING THE CLAIM HE FURTHER STATED THAT NO ADDITIONS WAS MADE BY THE AO UNDER THE HEADS DISALLOWANCE O F DEPRECIATION ON LEASED ASSETS AND DISALLOWANCE OF LEASE EQUALISATION WHILE PASSING T HE SCRUTINY ORDERS U/S.143(3)OF THE ACT FOR THE AY.S.2002-03 2003-04 2006-07 2007-08 2008-09.HE REFERRED TO THE CASE OF I.C.D.S LTD. (29 TAXMANN.COM129). THE DR RELIED UPON THE CASES OF THE INSTALMENT SUPP LY LIMITED (INCOME TAX APPEAL NO. 442/ 2007 DATED17/4/2012)OF HON'BLE DELHI HIGH COURT AS IA BROWN BOVERI LTD.(APPEAL (CIVIL) 3574OF1998 DTD.27/10/2004)OF HON'BLE SUPREME COURT AND INDUSIND BANK LTD.(135 ITD 165). 2.3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US.WE FIND THAT IN THE CASE OF I.C.D.S.(SUPRA) THE HON'BLE SUPREME COU RT HAS DELIBERATED UPON THE ISSUE OF DEPRECIATION OF THE LEASED ASSETS IN DETAILS.SO WE WOULD LIKE TO REPRODUCE THE RELEVANT PORTION OF THE JUDGMENT.FACTS OF THE CASE WERE NOTED BY THE HONBLE COURT AS FOLLOW: THE ASSESSEE WAS A NON-BANKING FINANCE COMPANY ENG AGED INTER ALIA IN THE BUSINESS OF HIRE PURCHASE AND LEASING. THE ASSESSEE PURCHASED VEHICL ES AGAINST DIRECT PAYMENT TO THE MANUFACTURERS AND AS A PART OF ITS BUSINESS LEASE D OUT THESE VEHICLES TO ITS CUSTOMERS AND 5440/M/09- STANROSE MAFATLAL INVESTMENTS & FINANCE LTD. 3 THEREAFTER HAD NO PHYSICAL AFFILIATION WITH THE VE HICLES. THE LESSEES WERE REGISTERED AS THE OWNERS OF THE VEHICLES. THE AGREEMENT BETWEEN THE A SSESSEE AND THE CUSTOMER SPECIFICALLY PROVIDED THAT (I) THE ASSESSEE WAS THE EXCLUSIVE OW NER OF THE VEHICLE AT ALL POINTS OF TIME ; (II) IF THE LESSEE COMMITTED A DEFAULT THE ASSESSEE WAS EMPOWERED TO RE-POSSESS THE VEHICLE (AND NOT MERELY RECOVER MONEY FROM THE CUSTOMER) ; (III) AT THE CONCLUSION OF THE LEASE PERIOD THE LESSEE WAS OBLIGED TO RETURN THE VEHICLE TO THE ASS ESSEE ; (IV) THE ASSESSEE HAD THE RIGHT OF INSPECTION OF THE VEHICLE AT ALL TIMES. IN ITS RETU RN OF INCOME FOR THE ASSESSMENT YEARS 1991-92 TO 1996-97 THE ASSESSEE CLAIMED DEPRECIATION IN RE LATION TO THE VEHICLES FINANCED BY THE ASSESSEE BUT REGISTERED IN THE NAME OF THIRD PARTIE S. THE ASSESSEE ALSO CLAIMED DEPRECIATION AT THE HIGHER RATE ON THE GROUND THAT THE VEHICLES WER E USED IN THE BUSINESS OF RUNNING ON HIRE. THE ASSESSING OFFICER DISALLOWED THE CLAIMS BOTH O F DEPRECIATION AND HIGHER RATE ON THE GROUND THAT THE ASSESSEES USE OF THESE VEHICLES WA S ONLY BY WAY OF LEASING OUT TO OTHERS AND NOT ACTUAL USER OF THE VEHICLES IN THE BUSINESS OF RUNNING THEM ON HIRE. ON APPEALS THE COMMISSIONER (APPEALS) AGREED WITH THE ASSESSEE BUT DID NOT ALLOW ITS CLAIM FOR DEPRECIATION AT THE HIGHER RATE AND ON APPEALS BY BOTH THE ASSES SEE AND THE DEPARTMENT THE TRIBUNAL AGREED WITH THE ASSESSEE ON BOTH THE COUNTS RECORDI NG A FINDING THAT THE BUSINESS OF THE ASSESSEE WAS LEASING AND HIRING OF VEHICLES AND OTH ER MACHINERY AND NOT A HIRE PURCHASE. ON APPEAL THE HIGH COURT HELD AGAINST THE ASSESSEE ON BOTH COUNTS. ON APPEAL REVERSING THE JUDGMENT OF THE HONBLE KAR NATAKA HIGH COURT THE APEX COURT HELD AS UNDER: THE PROVISION ON DEPRECIATION IN THE INCOME-TAX AC T 1961 READS THAT THE ASSET MUST BE OWNED WHOLLY OR PARTLY BY THE ASSESSEE AND USED FOR THE PURPOSES OF THE BUSINESS. THEREFORE IT IMPOSES A TWIN REQUIREMENT OF OWNERS HIP AND USAGE FOR BUSINESS FOR A SUCCESSFUL CLAIM UNDER SECTION 32 OF THE ACT. THE SECTION REQUIRES THAT THE ASSESSEE MUST USE THE ASSET FOR THE PURPOSES OF BUSINESS. IT DOES NOT MANDATE USAGE OF THE ASSET BY THE ASSESSEE ITSELF. AS LONG AS THE ASSET IS UTILIZED FOR THE PURPOSE OF BUSINESS OF THE ASSESSEE THE REQUIR EMENT OF SECTION 32 WILL STAND SATISFIED NOTWITHSTANDING NON-USAGE OF THE ASSET ITSELF BY TH E ASSESSEE. THE DEFINITIONS OF OWNERSHIP ESSENTIALLY MAKE OWN ERSHIP A FUNCTION OF LEGAL RIGHT OR TITLE AGAINST THE REST OF THE WORLD. HOWEVER IT IS NOME N GENERALISSIMUM AND ITS MEANING IS TO BE GATHERED FROM THE CONNECTION IN WHICH IT IS USED AND FROM THE SUBJECT-MATTER TO WHICH IT IS APPLIED. AS LONG AS THE ASSESSEE HAS A RIGHT TO RET AIN THE LEGAL TITLE AGAINST THE REST OF THE WORLD IT WOULD BE THE OWNER OF THE ASSET IN THE EY ES OF LAW. SECTION 2(30) OF THE MOTOR VEHICLES ACT 1988 IS A DEEMING PROVISION THAT CREATES A LEGAL FICTION OF OWNERSHIP IN FAVOUR OF THE LESSEE ONLY F OR THE PURPOSE OF THAT ACT NOT FOR THE PURPOSE OF LAW IN GENERAL. IT MUST BE READ IN CONSO NANCE WITH SUB-SECTIONS (4) AND (5) OF SECTION 51 OF THAT ACT WHICH MANDATES THAT DURING THE PERIOD OF LEASE THE VEHICLE BE REGISTERED IN THE CERTIFICATE OF REGISTRATION IN THE NAME OF THE LESSEE AND ON CONCLUSION OF THE LEASE PERIOD THE VEHICLE BE REGISTERED IN THE NAME OF THE LESSOR AS OWNER. THE SECTION LEAVES NO CHOICE TO THE LESSOR BUT TO ALLOW THE VEHICLE TO BE REGISTERED IN THE NAME OF THE LESSEE. ..THE ASSESSEE WAS A LEASING COMPANY WHICH LEASED O UT THE TRUCKS THAT IT PURCHASED. THEREFORE ON A COMBINED READING OF SECTION 2(13) A ND (24) OF THE ACTTHE INCOME DERIVED FROM LEASING OF THE TRUCKS WOULD BE BUSINESS INCOME OR INCOME DERIVED IN THE COURSE OF BUSINESS AND HAD BEEN SO ASSESSED. HENCE IT FULFI LLED THE REQUIREMENT OF SECTION 32 OF THE ACT THAT THE ASSET MUST BE USED IN THE COURSE OF B USINESS. THE ASSESSEE DID USE THE VEHICLES IN THE COURSE OF ITS LEASING BUSINESS. THE FACT THA T THE TRUCKS THEMSELVES WERE NOT USED BY THE ASSESSEE WAS IRRELEVANT FOR THE PURPOSE OF THE SECTION. (II) THAT A SCRUTINY OF THE MATERIAL FACTS AT HAND RAISED A PRESUMPTION OF OWNERSHIP IN FAVOUR OF THE ASSESSEE. THE VEHICLE ALONG WITH ITS KEYS WAS DELIVERED TO THE ASSESSEE UPON WHICH THE LEASE AGREEMENT WAS ENTERED INTO BY THE ASSESSEE WITH THE CUSTOMER. THE FACT THAT AT THE END OF THE LEASE PERIOD THE OWNERSHIP OF THE VEHICLE WAS TRANSFERRED TO THE LESSEE AT A NOMINAL VALUE DID NOT MAKE THE ASSESSEE IN EFFECT A FINANCIER. NO INFERENCE 5440/M/09- STANROSE MAFATLAL INVESTMENTS & FINANCE LTD. 4 COULD BE DRAWN FROM THE REGISTRATION CERTIFICATE AS TO OWNERSHIP OF THE LEGAL TITLE OF THE VEHICLE. IF THE LESSEE WAS IN FACT THE OWNER HE WO ULD HAVE CLAIMED DEPRECIATION ON THE VEHICLES WHICH AS SPECIFICALLY RECORDED IN THE OR DER OF THE TRIBUNAL WAS NOT THE CASE. (III) THAT THE ENTIRE LEASE RENT RECEIVED BY THE AS SESSEE WAS ASSESSED AS BUSINESS INCOME IN ITS HANDS AND THE ENTIRE LEASE RENT PAID BY THE LES SEE HAD BEEN TREATED AS DEDUCTIBLE REVENUE EXPENDITURE IN THE HANDS OF THE LESSEE. THI S REAFFIRMED THE POSITION THAT THE ASSESSEE WAS IN FACT THE OWNER OF THE VEHICLE IN S O FAR AS SECTION 32 OF THE ACT IS CONCERNED. (IV) THAT THEREFORE THE ASSESSEE WAS THE OWNER OF THE VEHICLES. AS THE OWNER IT USED THE ASSETS IN THE COURSE OF ITS BUSINESS SATISFYING BO TH REQUIREMENTS OF SECTION 32 OF THE ACT AND HENCE WAS ENTITLED TO CLAIM DEPRECIATION IN R ESPECT OF ADDITIONS MADE TO THE TRUCKS WHICH WERE LEASED OUT. (V) THAT FOR PURPOSES OF THE ASSESSEES CLAIM TO TH E HIGHER RATE OF DEPRECIATION THE INTERPRETATION OF THE TERM PURPOSES OF BUSINESS USED IN THE SECOND PROVISO TO SECTION 32(1) OF THE ACT WOULD NOT BE ANY DIFFERENT FROM TH AT ASCRIBED TO IT UNDER SECTION 32(1) OF THE ACT. THEREFORE THE ASSESSEE FULFILLED EVEN THE REQUIREMENTS FOR A CLAIM OF A HIGHER RATE OF DEPRECIATION AND WAS ENTITLED THERETO. WE FIND THAT AS PER THE AO THE ASSESSEE WAS ENGAGED IN BUSINESS OF LEASING AND HIRE PURCHASE AS WELL AS CORPORATE LENDING AND FINANCING(ASSESSME NT ORDER PG-1).CONSIDERING THE FACT THAT THE ASSESSEE IS IN THE BUSINESS OF LEASING AND FINA NCE AND THAT THE AO IN THE SUBSEQUENT AND IN THE EARLIER YEARS HAD ALLOWED DEPRECIATION OF LEASE D ASSETS WE ARE OF THE OPINION THAT THE FAA WAS NOT JUSTIFIED IN DENYING THE CLAIM OF DEPRECIAT ION TO THE ASSESSEE FOR THE YEAR UNDER CONSI -DERATION.RULE OF CONSISTENCY STIPULATES THAT UNTIL AND UNLESS NEW FACTS ARE BROUGHT ON RECORD THE AO SHOULD NOT DISTURB THE FINDINGS OF EARLIER Y EAR/(S).IN THE CASE UNDER CONSIDERATION THE AO/FAA HAS NOT DISCUSSED ANYTHING THAT PROVES THAT THE FACTS OF THE EARLIER YEARS HAD MATERIALLY CHANGED DURING THE YEAR TO THAT EXTENT T HAT THERE WAS NO OTHER WAY THAN TO REJECT THE CLAIM OF THE ASSESSEE.WE HAVE CONSIDERED THE OR DERS/JUDGMENTS RELIED UPON BY THE DR.IN OUR OPINION AFTER JUDGMENT OF HONBLE APEX COURT IN THE CASE OF ICDS THE ISSUE OF ALLOWING DEPRECIATION ON LEASED ASSETS OF A FINANCE COMPANY STANDS SETTLED. CONSIDERING THE ABOVE WE DECIDE SECOND GROUND OF AP PEAL IN FAVOUR OF THE ASSESSEE. 3. THIRD GROUND DEALS WITH ADDITION OF RESIDUAL SALE P RICE OF LEASED ASSETS AMOUNTING TO RS. 1.67 LAKHS.THE FAA CONFIRMING THE ORDER OF THE AO H AD HELD THAT THE AO HAD RIGHTLY DISALLOWED DEPRECITATION THAT RESIDUAL SALE PRICE O F LEASED ASSETS WAS IN NATURE OF REVENUE RECEIPT. 3.1. WHILE DECIDING THE EARLIER GROUND WE HAVE HELD THAT THE ASSESSEE WAS ENTITLED TO CLAIM DEPRECIATION ON ASSETS LEASED OUT THAT IT WAS ENGAG ED IN BUSINESS OF LEASING AND HIRE PURCHASE AS WELL AS CORPORATE LENDING AND FINANCING.CONSIDER ING THE ABOVE WE ARE OF THE OPINION THAT ORDER OF THE FAA CANNOT BE ENDORSED WITH REGARD TO ADDITION OF RESIDUAL SALE PRICE OF LEASED ASSETS.SO REVERSING THE SAME WE DECIDE THIRD GROUND OF APPEAL IN FAVOUR OF THE ASSESSEE. 5440/M/09- STANROSE MAFATLAL INVESTMENTS & FINANCE LTD. 5 4. FOURTH GROUND OF APPEAL IS IN RESPECT OF DISALLOWAN CE MADE U/S.14A UNDER THE HEAD ADMINISTRATIVE EXPENSESIN RESPECT OF DIVIDEND INC OME OF RS.76 90 282/-.THE AO WHILED COMPLETING THE ASSESSMENT COMPUTED PROPORTIONATE AD MINISTRATIVE EXPENSES AT RS.15 29 478/- IN RESPECT OF DIVIDEND INCOME AND DISALLOWED THE SA ME. 4.1. IN THE APPELLATE PROCEEDINGS BEFORE THE FAA THE ASS ESSEE MADE ELABORATE SUBMISSIONS AND RELIED UPON THE CASES OF CITIZEN HOTELS PRIVATE LIM ITED (ITA/5371&5803/MUM/2005)AND IND -EXPORT LTD.(ITA/1941&2200/MUM/2004). BUT HE DID NOT AGREE WITH THE CLAIM OF THE ASSESSEE THAT NO EXPENSES COULD BE SAID TO HAVE BEEN INCURRED FOR EARNING OF DIVIDEND INCOME.HE HEL D THAT DISALLOWANCE U/S.14A HAD TO BE MADE AS PER RULE 8D OF THE RULES. HE FURTHER HELD T HAT IF THE DISALLOWANCE WORKED OUT TO MORE THAT RS.15 29 478/- SAME SHOULD BE RESTRICTED TO THAT AMOUNT. 4.2. BEFORE US THE AR ARGUED THAT DISALLOWANCE WAS MADE ON ADHOC BASIS THAT PROVISIONS OF RULE 8D WERE NOT APPLICABLE FOR THE YEAR UNDER CONS IDERATION.THE DR LEFT THE MATTER TO THE DISCRETION OF THE BENCH. WE FIND THAT THE FAA HAD APPLIED THE FORMULA PROVID ED IN RULE 8D OF THE INCOME TAX RULES 1962(RULES).THE AR HAS RIGHTLY CLAIMED THAT THE PRO VISION OF THE SAID RULE WERE NOT APPLICABLE FOR THE YEAR UNDER APPEAL.FOR MAKING ANY DISALLOWANCE THE AO HAS TO FIRST BE SATISFIED THAT THE ASSESSEE HAD INCURRED SOME EXPEN DITURE FOR EARNING EXEMPT INCOME.IN ABSENCE OF SUCH A FIND RULE 8D HAS BEEN INVOKED AND APPROVED IN A MECHANICAL MANNER.WE ARE OF THE OPINION THAT WITHOUT BRINGING SOMETHING POSITIVE ON RECORD THE FAA SHOULD NOT HAVE PARTIALLY CONFIRMED THE ORDER OF THE AO.SO REV ERSING HIS ORDER WE DECIDE FOURTH GROUND OF APPEAL IN ITS FAVOUR. 5. NEXT GROUND IS WITH REGARD TO DISALLOWANCE OF LONG TERM CAPITAL LOSS(LTCL).THE AR FAIRLY CONCEDED THAT THE ORDER OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF BENNET COLEMAN & CO.(133ITD1) WAS AGAINST THE ASSESSEE WHE REIN IDENTICAL ISSUE WAS DECIDED IN FAVOUR OF THE REVENUE.RESPECTFULLY FOLLOWING THE SA ID ORDER OF THE TRIBUNAL WE DISMISS GROUND NO.5 RAISED BY THE ASSESSEE. 6. LAST GROUND OF APPEAL IS ABOUT TAXING THE LONG TERM CAPITAL GAINS(LTCG)AT THE CORPORATE RATE OF TAX (35.87%) AS AGAINST THE RATE PRESCRIBED U/S.112 OF THE ACT ( 20.5%).THE AO IS DIRECTED TO PASS NECESSARY RECTIFICATION ORDER AFTE R VERIFICATION OF FACTS.LAST GROUND IS DECIDE IN FAVOUR OF THE ASSESSEE IN PART. AS A RESULT APPEAL FILE D BY THE ASSESSEE STANDS PARTLY ALLOWED. 5440/M/09- STANROSE MAFATLAL INVESTMENTS & FINANCE LTD. 6 ORDER PRONOUNCED IN THE OPEN COURT ON 03 RD NOVEMBER 2017. 2017 SD/- SD/- ( / SAKTIJIT DEY ) ( / RAJENDRA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; /DATED : 03.11.2017. JV.SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ 4. THE CONCERNED CIT / 5. DR BENCH ITAT MUMBAI / . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER / DY./ASST. REGISTRAR /ITAT MUMBAI.