ACIT 2(1), MUMBAI v. ANVIL FINRADE P.LTD, MUMBAI

ITA 6601/MUM/2012 | 2007-2008
Pronouncement Date: 25-04-2014 | Result: Dismissed

Appeal Details

RSA Number 660119914 RSA 2012
Assessee PAN AABCA9882E
Bench Mumbai
Appeal Number ITA 6601/MUM/2012
Duration Of Justice 1 year(s) 5 month(s) 24 day(s)
Appellant ACIT 2(1), MUMBAI
Respondent ANVIL FINRADE P.LTD, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 25-04-2014
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 25-04-2014
Date Of Final Hearing 19-03-2014
Next Hearing Date 19-03-2014
Assessment Year 2007-2008
Appeal Filed On 31-10-2012
Judgment Text
A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH MUMBAI .. . . . . BEFORE SHRI P.M. JAGTAP AM AND DR. S.T.M. PAVALAN JM ./ I.T.A. NO.6601/ MUM/2012 ( / ASSESSMENT YEAR : 2007-2008 A CIT 2 ( 1 ) ROOM NO. 561 5 TH FLOOR AAYAKAR BHAVAN M.K. ROAD MUMBAI 20. / VS. M/S ANVIL FINTRADE PVT. LTD. 102 WINDSOR VIDHYA NAGRI MARG KALINA SANTACRUZ (E) MUMBAI 400 098. ./ PAN :AABCA9882E ( % / APPELLANT ) .. ( &'% / RESPONDENT ) A PPELLANT BY SHRI MANVENDRA GOYAL R E SPONDENT BY : DR. K. SHIVARAM * / DATE OF HEARING : 19-03-2014 * / DATE OF PRONOUNCEMENT : 25-04-2014 [ / O R D E R PER P.M. JAGTAP A.M . : .. THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A) - 4 MUMBAI DATED 24-8-2012 WHEREBY HE CANCELLED THE REASSESSMENT MADE BY THE A.O. U/S 143(3) R.W.S. 147 OF THE INCOME TAX AC T 1961 HOLDING THE SAME TO BE INVALID AND ALSO HELD THAT THE ASSESSEE WAS E NTITLED TO REBATE U/S 88E OF THE ACT IN RESPECT OF TAX LIABILITY WORKED OUT U/S 115JB OF THE ACT. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY WH ICH IS ENGAGED IN THE BUSINESS OF DEALING IN SHARES AND SECURITIES. THE R ETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY IT ON 13-10-2007 D ECLARING TOTAL INCOME OF RS. 3 30 71 122/-. THE TAX PAYABLE ON THE SAID INC OME HOWEVER WAS SHOWN ITA 6601/M/12 2 BY THE ASSESSEE AT NIL AFTER CLAIMING REBATE U/S 88E OF THE ACT. IN THE ASSESSMENT ORIGINALLY COMPLETED U/S 143(3) VIDE AN ORDER DATED 18-12-2009 THE CLAIM OF THE ASSESSEE OF TAX PAYABLE BEING NIL AFTER CLAIMING REBATE U/S 88E OF THE ACT WAS ACCEPTED BY THE A.O. AND ONLY TH E DISALLOWANCE U/S 14A OF THE ACT WAS MADE. SUBSEQUENTLY IT WAS NOTICED BY T HE A.O. THAT THE BOOK PROFIT OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERA TION WAS RS. 3 77 82 340/- AND THE ASSESSEE THEREFORE WAS LIABLE TO PAY MINIMU M ALTERNATE TAX AS PER THE PROVISIONS OF SECTION 115JB OF THE ACT. HE THEREFO RE REOPENED THE ASSESSMENT BY ISSUE OF NOTICE U/S 148 OF THE ACT ON 7-10-2010 IN RESPONSE TO WHICH RETURN OF INCOME WAS FILED BY THE ASSESSEE DE CLARING SAME INCOME AS SHOWN IN THE RETURN ORIGINALLY FILED. DURING THE CO URSE OF REASSESSMENT PROCEEDINGS IT WAS CONTENDED ON BEHALF OF THE ASSE SSEE THAT KEEPING IN VIEW THE REBATE ALLOWABLE U/S 88E OF THE ACT THERE WAS NO TAX PAYABLE EVEN AS PER PROVISIONS OF SECTION 115JB OF THE ACT. IT WAS CONT ENDED THAT THE ASSESSMENT U/S 143(3) OF THE ACT WAS ORIGINALLY MADE AFTER TAK ING INTO CONSIDERATION ALL THE RELEVANT FACTS OF THE CASE AND IN THE ABSENCE O F ANY NEW INFORMATION OR FACTS COMING TO THE KNOWLEDGE OF THE A.O. THE REOP ENING OF ASSESSMENT ITSELF WAS BAD IN LAW AS THE SAME WAS BASED MERELY ON CHAN GE OF OPINION. IN SUPPORT OF THIS CONTENTION RELIANCE WAS PLACED BY THE ASSESSEE ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CI T VS. KELVINATOR OF INDIA LTD. (2010) 320 ITR 561(SC) AND THAT OF HONBLE BOM BAY HIGH COURT IN THE CASE OF AVENTIS PHARMA LTD. VS. ACIT (2010) 323 ITR 570 (BOM). THE A.O. DID NOT FIND MERIT IN THE CONTENTIONS RAISED BY THE ASS ESSEE AND REJECTING THE SAME HE WORKED OUT THE TAX PAYABLE BY THE ASSESSEE AS PER THE PROVISION OF SECTION 115JB OF THE ACT AT RS. 35 26 541/- WITHOUT ALLOWING THE REBATE U/S 88E IN THE ASSESSMENT COMPLETED U/S 143(3) R.W.S. 1 47 OF THE ACT VIDE AN ORDER DATED 14-11-2011. 3. AGAINST THE ORDER PASSED BY THE A.O. U/S 143(3) R.W.S. 147 OF THE ACT AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) AND AFTER CONSIDERING THE SUBMISSIONS MADE ON BEHALF OF THE A SSESSEE AS WELL AS THE ITA 6601/M/12 3 MATERIAL AVAILABLE ON RECORD THE LD. CIT(A) HELD T HAT IN THE ABSENCE OF ANY NEW FACT COMING TO THE NOTICE OF THE A.O. SHOWING E SCAPEMENT OF INCOME THE REOPENING OF THE ASSESSMENT ITSELF WAS BAD IN LAW. HE HELD THAT THERE WAS THUS NO BASIS FOR ISSUE OF NOTICE U/S 148 OF THE AC T AND QUASHED THE ASSESSMENT MADE BY THE A.O. PURSUANT TO THE SAID NO TICE. HE ALSO HELD THAT THE TAX PAYABLE BY THE ASSESSEE UNDER THE NORMAL PR OVISIONS OF LAW AS WELL AS U/S 115JB OF THE ACT WAS REQUIRED TO BE COMPARED BE FORE ANY REBATE U/S 88E OF THE ACT AND SINCE THE TAX PAYABLE UNDER THE NORM AL PROVISIONS OF LAW ON SUCH COMPARISON WAS MORE NO TAX WAS PAYABLE BY THE ASSESSEE U/S 115JB OF THE ACT. AGGRIEVED BY THE ORDER OF THE LD. CIT(A) THE REVENUE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERV ED THAT THE ASSESSMENT COMPLETED ORIGINALLY U/S 143(3) OF THE ACT IN THE C ASE OF THE ASSESSEE WAS REOPENED BY THE A.O. ON THE BASIS OF FOLLOWING REAS ONS RECORDED:- ON PERUSAL OF THE RECORDS IT IS SEEN THAT YOU ARE REQUIRED TO PAY TAX U/S 115JB OF THE I.T. ACT. HOWEVER IN THE ASSESSM ENT COMPLETED U/S 143(3) VIDE ORDER DATED 18-12-2009 THE TAX PAYABLE IS COMPUTED ONLY AS PER NORMAL PROVISIONS. THUS THE INCOME U/S 115JB AMOUNTING TO RS. 3.14 CR ORE HAS ESCAPED ASSESSMENT FOR A.Y. 2007-08. AS IS CLEARLY EVIDENT FROM THE REASONS RECORDED BY THE A.O. THERE WAS NO NEW MATERIAL OR INFORMATION THAT HAD COME TO THE POSSES SION OF THE A.O. ON THE BASIS OF WHICH THE ASSESSMENT COMPLETED U/S 143(3) WAS REOPENED BY HIM AND THIS POSITION HAS NOT BEEN DISPUTED EVEN BY THE LD. D.R. AT THE TIME OF HEARING BEFORE US. AS HELD BY THE HONBLE SUPREME C OURT IN THE CASE OF KELVINATOR OF INDIA LTD. (SUPRA) THERE SHOULD BE S OME TANGIBLE MATERIAL TO COME TO THE CONCLUSION THAT INCOME HAD ESCAPED ASSE SSMENT AND IT IS THUS ESSENTIAL THAT THE A.O. SHOULD HAVE BEFORE HIM SOME TANGIBLE MATERIAL JUSTIFYING THE REASON TO BELIEVE THAT INCOME HAD ES CAPED ASSESSMENT. SINCE ITA 6601/M/12 4 THERE WAS NO SUCH TANGIBLE MATERIAL BEFORE THE A.O. ON THE BASIS OF WHICH HE COULD ENTERTAIN THE BELIEF THAT INCOME OF THE ASSES SEE CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT WE AGREE WITH THE LD. CIT(A) TH AT THE REOPENING OF ASSESSMENT ITSELF WAS BAD IN LAW AND THE REASSESSME NT COMPLETED PURSUANT THERETO WAS LIABLE TO BE QUASHED. WE ALSO FIND THAT EVEN THE ISSUE RELATING TO THE ASSESSEES CLAIM FOR REBATE U/S 88E OF THE ACT IS SQUARELY COVERED ON MERIT IN FAVOUR OF THE ASSESSEE BY THE DECISION OF CO-ORD INATE BENCH OF THIS TRIBUNAL RENDERED IN THE CASE OF AATASH SHARE & COMMODITIES BROKING PVT. LTD. VS. ACIT VIDE ORDER DATED 25-09-2013 IN ITA NO. 1407/MU M/2012 WHEREIN IT WAS HELD RELYING ON THE CASE LAW REPORTED AS CIT VS. HO RIZON CAPITAL LTD. [2011] 64 DTR 306 (KAR) AND CIT VS. MBL & CO. LTD. [2013] 35 TAXMANN.COM 60 (DEL) THAT REBATE U/S 88E COULD NOT BE CONFINED ONLY TO T HE TAX UNDER REGULAR PROVISIONS OF THE ACT AND IT WOULD EXTEND ALSO TO T HE TAX PAYABLE ON THE BOOK PROFIT AS PER SECTION 115JB OF THE ACT. IT WAS HELD BY THE TRIBUNAL THAT THE REBATE U/S 88E OF THE ACT THUS WILL HAVE TO BE ALLO WED IRRESPECTIVE OF WHETHER THE TAX IS PAYABLE UNDER THE REGULAR PROVISIONS OF THE ACT OR THE PROVISIONS OF SECTION 115JB OF THE ACT. RESPECTFULLY FOLLOWING TH ESE DECISIONS OF THE COORDINATE BENCH OF THIS TRIBUNAL WE UPHOLD THE IM PUGNED ORDER OF THE LD. CIT(A) ON MERIT ALSO HOLDING THAT THE ASSESSEE WAS ENTITLED TO CLAIM REBATE U/S 88E OF THE ACT EVEN IN RESPECT OF TAX PAYABLE U NDER THE PROVISIONS OF SECTION 115JB OF THE ACT. THE IMPUGNED ORDER OF TH E LD. CIT(A) IS ACCORDINGLY UPHELD AND THIS APPEAL FILED BY THE REVENUE IS DISM ISSED. 5. IN THE RESULT THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 25- 04-2014 . * 0 1 25-04-2014 * SD/- SD/- (DR. S.T.M. PAVALAN) (P.M. JAGTAP ) JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; 1 DATED 25-04-2014 ITA 6601/M/12 5 [ .../ RK SR. PS ' #%& '& / COPY OF THE ORDER FORWARDED TO : 1. % / THE APPELLANT 2. &'% / THE RESPONDENT. 3. 4 () / THE CIT(A)4 MUMBAI. 4. 4 / CIT -2 MUMBAI 5. 7 &9 9 / DR ITAT MUMBAI A BENCH 6. ; / GUARD FILE. / BY ORDER '7 & //TRUE COPY// / ( DY./ASSTT. REGISTRAR) / ITAT MUMBAI