0 ASSTT.C.I.T.,4(3), MUMBAI v. M/S. JHUNJHUNWALA STOCK BROKERS PVT.LTD., MUMBAI

ITA 5906/MUM/2008 | 2005-2006
Pronouncement Date: 05-04-2010 | Result: Allowed

Appeal Details

RSA Number 590619914 RSA 2008
Assessee PAN AAACJ7576M
Bench Mumbai
Appeal Number ITA 5906/MUM/2008
Duration Of Justice 1 year(s) 6 month(s) 9 day(s)
Appellant 0 ASSTT.C.I.T.,4(3), MUMBAI
Respondent M/S. JHUNJHUNWALA STOCK BROKERS PVT.LTD., MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 05-04-2010
Appeal Filed By Department
Order Result Allowed
Bench Allotted J
Tribunal Order Date 05-04-2010
Date Of Final Hearing 30-03-2010
Next Hearing Date 30-03-2010
Assessment Year 2005-2006
Appeal Filed On 26-09-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH J : MUMBAI BEFORE SHRI D.K. AGARWAL (JM) AND SHRI PRAMOD KU MAR (AM) ITA NO.5905/MUM/2008 ASSESSMENT YEAR : 2004-05 ITA NO.5906/MUM/2008 ASSESSMENT YEAR : 2005-06 ASSTT. COMMISSIONER OF INCOME TAX -4(3) 6 TH FLOOR ROOM NO.649 AAYAKAR BHAVAN MUMBAI-400 020. ..( APPELLANT ) VS. JHUNJHUNWALA STOCK BROKERS PVT. LTD. 16/1 KHATAU BLDG. ALKESH DINESH MODY MARG FORT MUMBAI-400 023. ..( RESPONDENT ) P.A. NO. (AAACJ 7576 M) APPELLANT BY : SHRI L.K. AGRAWAL RESPONDENT BY : SHRI HAR ESH P. SHAH O R D E R PER D.K. AGARWAL (JM). THESE TWO APPEALS PREFERRED BY THE REVENUE ARE DIRECT ED AGAINST SEPARATE ORDERS DATED 16.7.2008 AND 21.7.2008 PASSED BY THE LD. CIT(A) FOR THE ASSESSMENT YEARS 2004-05 AND 2005-06 RESPECTIVELY. SINCE FACTS ARE IDENTICAL AND ISSUE INVOLVED IS COMMON BOTH THESE APPEALS ARE DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. BRIEFLY STATED FACTS OF THE CASE EXTRACTED FROM ITA NO.5905 /MUM/2008 FOR ASSESSMENT YEAR 2004-05 ARE THAT THE ASSESSEE ITA NO.5905 & 5906/M/08 A.Y:04-05 & 05-06 2 COMPANY ENGAGED IN THE BUSINESS OF SHARE BROKING AND DEA LING IN SHARES AND SECURITIES. THE RETURN WAS FILED DECLARING NIL INCOME. DURING THE COURSE OF ASSESSMENT IT WAS INTERALIA OBSERVED BY THE AO THAT THE ASSESSEE HAS CLAIMED DEPRECIATION ON BSE CARD OF RS.43 66 150/-. ON BEING ASKED IT WAS EXPLAINED BY TH E ASSESSEE THAT IN VIEW OF THE DECISION OF THE TRIBUNAL IN THE CASE OF M/S. TECHNO SHARES AND STOCK LTD. IN ITA NO.778 779 1951/MUM/20 04 DATED 4.1.2006 AND OTHER DECISIONS THE CLAIM OF THE DEPRECIAT ION SHOULD BE ADMITTED. FURTHER THE ASSESSEE ACQUIRED THE MEMBERSHIP CARD AFTER 1.4.98 IN FINANCIAL YEAR 2000-01. HOWEVER THE AO W AS OF THE VIEW THAT UNDER THE PROVISIONS OF SEC.32 DEPRECIATION CANNOT BE HELD TO BE ALLOWABLE ON THE MEMBERSHIP CARD OF THE STOCK EXCHANGE MUMBAI. FURTHER THE MEMBERSHIP RIGHT DOES NOT FALL WITHIN THE PURVIEW OF SEC.32(1)(II) OF THE ACT AND THE DEPRECIATION CLAIMED ON THIS RIGHT IS NOT ALLOWABLE AND ACCORDINGLY HE DISALLOWED THE CLAIM OF DEPRECIATION OF RS.43 66 150/- AND ADDED TO THE INCOME OF THE ASSESSEE . ON APPEAL THE LD. CIT(A) WHILE HOLDING THAT THE APPEL LANTS CLAIM IS FULLY COVERED BY THE CASE OF M/S. TECHNO SHARES AND STOCK LTD. VS. ITO (101 TTJ 349) DELETED THE DISALLOWANCE OF DEPRECIATIO N MADE BY THE AO. 3. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A) THE REVENUE IS IN APPEAL BEFORE US CHALLENGING IN ALL THE COMMON GROUNDS FOR THE ASSESSMENT YEARS 2004-05 AND 2005-06 THE DELETION OF DI SALLOWANCE OF DEPRECIATION ON BSE CARD. 4. AT THE TIME OF HEARING BOTH PARTIES HAVE AGREED T HAT THIS ISSUE IS COVERED IN FAVOUR OF THE REVENUE AND AGAINST THE ASSESSEE BY THE ITA NO.5905 & 5906/M/08 A.Y:04-05 & 05-06 3 DECISION OF HONBLE BOMBAY HIGH COURT THEREFORE THE I SSUE MAY BE DECIDED ACCORDINGLY. 5. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RI VAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE FACTS ARE NOT IN DISPUTE. RECENTLY THE HONBLE JURISDICTION AL HIGH COURT IN CIT VS. TECHNO SHARES AND STOCK LTD.(2009) 184 TAXMANN 103(BOM.) HAS HELD THAT THE BSE CARD DID NOT FALL IN ANY OF TH E CATEGORIES SPECIFIED U/S.32(1)(II) DEPRECIATION COULD NOT BE ALLOW ED ON THE BSE CARD. RESPECTFULLY FOLLOWING THE SAME WE ARE OF THE V IEW THAT THE ASSESSEE IS NOT ENTITLED TO DEPRECIATION ON BSE MEMBERSHIP CARD AND ACCORDINGLY THE ORDER PASSED BY THE LD. CIT(A) IN THIS R EGARD IS REVERSED AND THAT OF AO IS RESTORED. THE GROUNDS TAKEN BY THE REVENUE FOR BOTH THE ASSESSMENT YEARS 2004-05 AND 2005-06 ARE TH EREFORE ALLOWED. 7. IN THE RESULT REVENUES APPEALS STAND ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 5.4.2010. SD/- SD/- (PRAMOD KUMAR) ( D.K. AGARWAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI DATED: 5.4.2010. JV. COPY TO: THE APPELLANT THE RESPONDENT THE CIT CONCERNED MUMBAI THE CIT(A) CONCERNED MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR ITAT MUMBAI. ITA NO.5905 & 5906/M/08 A.Y:04-05 & 05-06 4 DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 30.3.10 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 31.3.10 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 5.4.10 SR.PS/PS 7. FILE SENT TO THE BENCH CLERK 12.4.10 SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER