ROLTA SHARES AND STOCKS P.LTD, v. DCIT CEN CIR 4(2),

MA 655/MUM/2010 | 2001-2002
Pronouncement Date: 25-03-2011 | Result: Allowed

Appeal Details

RSA Number 65519924 RSA 2010
Assessee PAN AAACR3156M
Bench Mumbai
Appeal Number MA 655/MUM/2010
Duration Of Justice 4 month(s) 22 day(s)
Appellant ROLTA SHARES AND STOCKS P.LTD,
Respondent DCIT CEN CIR 4(2),
Appeal Type Miscellaneous Application
Pronouncement Date 25-03-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted K
Tribunal Order Date 25-03-2011
Assessment Year 2001-2002
Appeal Filed On 03-11-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH K MUMBAI BEFORE SHRI P.M.JAGTAP (A.M) & SHRI N.V.VASUDEVAN (J.M) M.A.NO.655/MUM/2010 (IN M.A. NO.796/M/09 ARISING OUT OF ITA NO.462/M /2005) A.Y. 2001-02 ROLTA SHARES & STOCKS PVT. LTD. MAKER TOWER F 21 ST FLOOR CUFFE PARADE MUMBAI 400 005. PAN: AAACR 3156M (APPLICANT) VS. THE DCIT CEN.CIR (1)/RG.4(2) AAYKAR BHAVAN MK ROAD MUMBAI 20. (RESPONDENT) APPLICANT BY : SHRI SHEKHAR GUPTA RESPONDENT BY : SHRI HARI GOVIND SINGH ORDER PER N.V.VASUDEVAN J.M THIS IS AN APPLICATION FILED BY THE ASSESSEE PRAYI NG FOR RECTIFICATION OF ORDER PASSED IN MA NO.796/M/09 DATED 30/4/2010. ON E OF THE GROUND DECIDED BY THE TRIBUNAL IN THE ABOVE APPEAL WAS AS TO THE ELIGIBILITY OF DEPRECIATION ON MEMBERSHIP CARD OF BSE. BY FOLLOWI NG THE DECISION OF THE ITAT MUMBAI BENCH IN THE CASE OF TECHNO SHARES AND STOCK LTD. VS. ITO 101 TTJ(MUM) 349 THE TRIBUNAL ALLOWED THE CLAIM OF THE ASSESSEE FOR DEPRECIATION ON MEMBERSHIP CARD OF BSE BY ITS ORDE R DATED 1/8/2006. THE REVENUE FILED MA NO.796/M/09 PRAYING FOR RECTIFICAT ION OF THAT ORDER IN VIEW OF THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF TECHNO SHARES & STOCK BROKERS LTD. ITA NO.218 OF 2007 DATE D 11/9/2009 WHEREIN THE HONBLE HIGH COURT HAS HELD THAT DEPRECIATION O N BSE MEMBERSHIP CARD CANNOT BE ALLOWED. THE REVENUES MISCELLANEOUS APP LICATION WAS ALLOWED BY THE TRIBUNAL BY ITS ORDER DATED 30/4/2010. MA NO.655/MUM/2010 2 2. IN THIS MA THE ASSESSEE HAS POINTED OUT THAT T HE HONBLE SUPREME COURT IN THE CASE OF TECHNO SHARES AND STOCK LTD. IN CIVI L APPEAL NO.7780-7781 OF 2010 ARISING OUT OF SLP CIVIL NOS. 4053& 4054 OF 20 10 HAS REVERSED THE DECISION OF THE HONBLE BOMBAY HIGH COURT AND HAS H ELD THAT DEPRECIATION ON BSE CARD IS ALLOWABLE. IN VIEW OF THE ABOVE THE ASSESSEE HAS FILED THE PRESENT MISCELLANEOUS APPLICATION PRAYING FOR RESTO RATION OF THE ORIGINAL ORDER OF THE TRIBUNAL. 3. THE LD. D.R SUBMITTED THAT A MISCELLANEOUS APPLI CATION CANNOT BE FILED TO RECTIFY AN ORDER PASSED IN A MISCELLANEOUS APPLI CATION. ACCORDING TO HIM UNDER SECTION 254(2) OF THE ACT ONLY AN ORDER UNDER SECTION 254(1) OF THE ACT CAN BE RECTIFIED AND NOT AN ORDER UNDER SECTION 254 (2) OF THE ACT. IN THIS REGARD RELIANCE WAS PLACED ON THE DECISION OF THE S PECIAL BENCH OF ITAT DELHI IN THE CASE OF SHRI PADAM PRAKASH HUF VS. ITO IN M A NO.57/DEL/2010 ORDER DATED 7/1/2011. 4. WE HAVE CONSIDERED THE SUBMISSION OF THE LD. D.R . IN THE CASE OF PADAM PRAKASH HUF (SUPRA) IT WAS A CASE OF SUCCESS IVE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE. EARLIER THE AP PLICATION OF THE ASSESSEE WAS DISMISSED FOLLOWING THE DECISION OF THE HONBLE SUP REME COURT. THE ASSESSEE SOUGHT TO CHALLENGE THAT ORDER PASSED IN M ISCELLANEOUS APPLICATION ON THE GROUND THAT ORDER IN MISCELLANEOUS APPLICATI ON CANNOT BE CHALLENGED BY ANOTHER MISCELLANEOUS APPLICATION FILED UNDER SE CTION 254(2) OF THE ACT. IN THE PRESENT CASE HOWEVER ORDER PASSED IN THE MIS CELLANEOUS APPLICATION ALREADY MERGED WITH THE ORDER PASSED UNDER SECTION 254(1) OF THE ACT. THE DECISION OF THE TRIBUNAL CONSEQUENT TO THE EARLIER ORDER IN THE MISCELLANEOUS APPLICATION BECAME A DECISION UNDER SECTION 254(1) OF THE ACT. IT WAS THEREFORE AMENABLE TO RECTIFICATION UNDER SECTION 254(2) OF THE ACT. IN VIEW OF THE FACT THAT THE ISSUE HAS NOW BEEN FINALLY CON CLUDED BY THE HONBLE SUPREME COURT WE ARE OF THE VIEW THAT MISCELLANEOU S APPLICATION HAS TO BE MA NO.655/MUM/2010 3 ALLOWED AND THE ORIGINAL ORDER OF THE TRIBUNAL DATE D 1/8/2006 SHOULD BE RESTORED. WE DIRECT ACCORDINGLY. 5. IN THE RESULT THE MISCELLANEOUS APPLICATION IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON T HE 25 TH DAY OF MAR.2011 SD/- SD/- (P.M.JAGTAP) (N.V.VASUDEVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI DATED. 25 TH MARCH.2011 COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CITY CONCERNED 4. THE CIT(A)- CONCERNED 5. THE D.RE BENCH. (TRUE COPY) BY ORDER ASST. REGISTRAR I TAT MUMBAI BENCHES MUMBAI. VM. MA NO.655/MUM/2010 4 DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 18/3/2011 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 18/3/2011 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 SR.PS/PS 7. FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER