ROSY BLUE SECURITIES P.LTD, MUMBAI V. ASST CIT CEN CIR 46, MUMBAI

ITA 1201/MUM/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0086 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2007-2008
• Appeal Filed On: 08-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAM TIWARI
• Assessee Lawyers: NITESH JOSH
• Keywords: Depreciation; Search and seizure
• Section: 143(3); 153A; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA , A M AND SHRI RAM LAL NEGI, JM ./ I.T.A. NO S . 1201 & 1220/MUM/2016 ( / ASSESSMENT YEAR S : 2007 - 08 & 2008 - 09 ) M/S. ROSY BLUE SECURITIES PVT. LTD. 154 - C, MITTAL COURT, NARIMAN POINT, MUMBAI - 400 021 / VS. ASST.CIT - 46, AAYKAR BHAVAN, M. K. MARG, MUMBAI - 400 020 ./ ./ PAN/GIR NO. AAACR 4082 Q ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI NITESH JOSH / RESPONDENT BY : SHRI RAM TIWARI / DATE OF HEARING : 04.01.2018 / DATE OF PRONOUNCEMENT : 01.03 .2018 / O R D E R PER S HAMIM YAHYA , A. M.: T HESE ARE APPEALS BY THE ASSESSEE AGAINST THE RESPECTIVE ORDERS OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) PASSED FOR THE CONCERNED ASSESSMENT YEARS. SINCE THE ISSUES ARE COMMON AND CONNECTED AND THE APPEALS WERE HEARD TOGETHER TH ESE ARE BEING DISPOSED OF BY THIS COMMON ORDER . 2 ITA NO S . 1201 & 1220/MUM/2016 M/S. ROSY BLUE SECURITIES PVT. LTD. 2. O NE COMMON ISSUE RAISED IS THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) E RRED IN UPHOLDING THE DISALLOWANCE OF DEPRECATION O N WRITTEN DOWN VALUE OF BOMBAY S TOCK E XCHANGE M EMBERSHIP CARD. 3. ANOTHER ISSUE RAISED IN ASSESSMENT YEAR 2008 - 09 IS THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN UPHOLDING THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IN THE COMP UTATION OF CAPITAL GAINS ON THE SALE OF SHARES OF BOMBAY S TOCK E XCHANGE . 4. F OR BOTH THE ASSESSMENT YEARS , T HE ASSESSEE HAS RAISED ONE ADDITIONAL GROUND, WHICH READS AS UNDER : ADDITIONAL GROUND FOR ASSESSMENT YEAR 2007 - 08 : THE DENIAL OF DEPRECIATION OF RS.15,04,143/ - ON BSE MEMBERSHIP CARD WAS ILLEGAL AND BAD IN LAW IN THE AS SESSMENT ORDER UNDER SECTION 153A R.W.S. 143(3) OF THE ACT DATED 31 ST MARCH, 2014 AS SUCH DISALLOWANCE WAS ALREADY STOOD MADE IN THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3) OF THE ACT DATED 4 TH DECEMBER, 2009 WHICH HAS NOT ABATED. A DDITION AL GROUND F OR ASSESSMENT YEAR 2008 - 09: THE DENIAL OF DEPRECIATION OF RS.9,38,281/ - ON BSE MEMBERSHIP CARD AND ADDITION DUE TO ADOPTION OF COST FOR COMPUTING CAPITA L GAINS ARISING ON SALE OF SHARES OF BOMBAY STOCK EXCHANGE LIMITED AT RS.66,72,217/ - INSTEAD OF RS.2,98 ,51,108/ - WAS ILLEGAL AND BAD IN LAW IN THE ASSESSMENT ORDER UNDER SECTION 153A R.W.S. 143(3) OF THE ACT DATED 31 ST MARCH, 2014 AS SUCH DISALLOWANCES WERE ALREADY STOOD MADE IN THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3) OF THE ACT DATED 23 RD NOVEMBER , 2010 WHICH HAS NOT ABATED. 5 . W E HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS , W ITH REGARD TO THE ADMISSION OF ADDITIONAL GROUND. SINCE THE ADDITION AL GROUND IS AN IMPORTANT LEGAL MATTER , WE ADMIT THE SAME. W E NOTE THAT IN BOTH THE ASSESSMENT YE ARS , THE AS SESSMENT ORDER HAD ALREADY BEEN COMPLETED U/S. 143(3) EARLIER , H ENCE , THESE ASSESSMENTS HAVE 3 ITA NO S . 1201 & 1220/MUM/2016 M/S. ROSY BLUE SECURITIES PVT. LTD. NOT ABATED. THE PRESENT ASSESSMENT HAS BEEN DONE U /S.1 53A. IN THE PRESENT ASSESSMENT U /S. 153A WHICH IS AN ASSESSMENT PURSUANT TO SEARCH AND SEIZURE ACTI ON , NO SEIZED MATE RIAL HAS BEEN REFERRED TO FOR M AKING OF THIS ADDITION. THE HON BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. C ONTINENTAL W AREHOUSING CORPORATION (NHAVA SHEVA) LTD. [2015] 374 ITR 645 (BOM) HAS EXPOUNDED THAT IN CASE OF AN ASSESSMEN T U /S. 153A PURSUANT TO SEARCH AND SEIZURE ACTION WHERE ASSESSMENT HAS ALREADY BEEN DONE EARLIER , NO ADDITION CAN BE MADE D EHORSE ANY SEIZED MATERIAL. THE LD. DEPARTMENTAL REPRESENTATIVE C OULD NOT POINT OUT ANY INCRIMINATING MATERIAL FOUND IN SEARCH A ND FA IRLY AGREED THAT THE ADDITION IN THE PRESENT CASE HAS NOT BEEN MADE WITH REFERENCE TO ANY SEIZED MATERIAL PURSUANT TO SEARCH. 6 . ACCORDINGLY , SINCE THE PRESENT ASSESSMENT U /S. 153A H AS BEEN DONE D EHORSE ANY SEIZED MATERIAL AND THE EARLIER ASSESSMENT HAS A LREADY BEEN COMPLETED U /S. 143 (3) , R ESPECTFULLY FOLLOWING THE PRECEDENT FROM THE HON'BLE JURISDICTIONAL HIGH COURT IN CONTINENTAL WAREHOUSING CORPORATION (NHAVA SHEVA) LTD. (SUPRA) , WE HOLD THAT THE ADDITION IS NOT AT ALL SUSTAINABLE AT THE THRESHOLD. ACCO RDINGLY , THE ADDITIONAL GROUND RAISED BY THE ASSESSEE STANDS ALLOWED. 7 . SINCE THE ASSESSMENT HAS BEEN QUASHED BY ALLOWING THE ADDITIONAL GROUND , THE ADJUDICATION ON THE MERITS OF THE APPEAL IS NOW ONLY OF ACADEMIC INTEREST AND ACCORDINGLY WE ARE NOT ENGA GING INTO THE S AME. 4 ITA NO S . 1201 & 1220/MUM/2016 M/S. ROSY BLUE SECURITIES PVT. LTD. 8 . IN THE RESULT , THESE APPEALS BY THE ASSESSEE STAND ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 01.03.2018 SD/ - SD/ - ( RAM LAL NEGI ) (S HAMIM YAHYA ) / J UDICIAL MEMBER / A CCOUNTANT MEMBER MUMBAI ; DATED : 01.03.2018 . . ./ ROSHANI , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI SR. NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTA TION SHEETS ARE ATTACHED YES SR.PS/PS 2 WORD PROCESSED IN DRAGON SOFTWARE ON 22.02.18 SR.PS/PS 3 DRAFT PLACED BEFORE AUTHOR 22.02.18 SR.PS/PS 4 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 5 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 6 APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 7 ORDER PRONOUNCEMENT ON SR.PS/PS 8 FILE SENT TO THE BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE AR 11 DATE OF DISPATCH OF ORDER