ITO 4(2)(2), MUMBAI V. SUBHKAM SECURITIES P. LTD, MUMBAI

ITA 1455/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 7851 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2003-2004
• Appeal Filed On: 04-03-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NAVEEN GUPTA
• Assessee Lawyers: R C JAIN
• Keywords: Speculation loss

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E : MUMBAI BEFORE SHRI D.K. AGARWAL, (JM) AND SHRI RAJENDRA SINGH ,(AM) ITA NO.1455/MUM/2009 ASSESSMENT YEAR : 2003-04 INCOME TAX OFFICER WARD 4(2)(2) ROOM NO.644, 6 TH FLOOR AAYAKAR BHAVAN, M.K. ROAD MUMBAI-400 020. ..( APPELLANT ) VS. M/S. SUBHKAM SECURITIES PVT. LTD. 15, ONLOOKER BUILDING SIR P.M. ROAD, FORT MUMBAI-400 023. ..( RESPONDENT ) P.A. NO. (AADCS 4498 N) APPELLANT BY : SHRI NAVEEN GUPTA RESPONDENT BY : SHRI R.C. JAIN O R D E R PER D.K. AGARWAL (JM). THIS APPEAL PREFERRED BY THE REVENUE IS DIRECTED AGAIN ST THE ORDER DATED 8.12.2008 PASSED BY THE LD. CIT(A) FOR TH E ASSESSMENT YEAR 2003-04 DELETING THE PENALTY OF RS.19,12,474/- IMPOSED BY THE ASSESSING OFFICER U/S.271(1)(C)OF THE INCOME TAX ACT 1961(TH E ACT) ON THE ISSUE OF NON-SETTING OFF OF DIVIDEND INCOME AGAINST THE DEEMED SPECULATION LOSS AS PER EXPLANATION TO SEC. 73 OF THE ACT. 2. WE HAVE CAREFULLY HEARD SHRI NAVEEN GUPTA, LD. D R AND SHRI R.C. JAIN, LD. COUNSEL FOR THE ASSESSEE. WE FIND THAT THE ASSESSEE ITA NO.1455/M/09 A.Y: 03-04 2 COMPANY IS ENGAGED IN THE BUSINESS OF SHARES, SECURITIES AND STOCK BROKER. WE FURTHER FIND THAT THE LD. CIT(A) HAS DEL ETED THE PENALTY IN VIEW OF THE COMBINED ORDER PASSED BY THE TRIBUNAL IN G ROUP CASE INCLUDING THE ASSESSEE M/S. SHUBHKAM SECURITIES PVT. LTD. AND OTHERS VS. ITO IN ITA NO.7067 TO 7069/M/06 FOR ASSESSMENT YEAR 2003-04 DATED 7.11.2008 WHEREIN THE TRIBUNAL HAS HELD : (PAG E-7, PARA 14 ) .............THEREFORE, WE HAVE NO HESITATION TO H OLD THAT ALL THESE ASSESSEES COULD CLAIM SET OFF OF SPECULATION LOSS ON ACCOUNT OF SHARE TRADING AGAINST DIVIDEND INCOME ARISING OUT OF SHARES H ELD AS STOCK-IN- TRADE...... THIS BEING SO AND KEEPING IN VIEW THAT THE ADDITION ON WHICH THE IMPUGNED PENALTY WAS IMPOSED BY THE ASSESSING OFFICER HAS BEEN DELETED BY THE TRIBUNAL, THE PENALTY HAS NO LEGS TO STAND AND ACCORDINGLY WE ARE INCLINED TO UPHOLD THE FINDING OF T HE LD. CIT(A) IN DELETING THE PENALTY IMPOSED BY THE ASSESSING OFFICER. T HE GROUNDS TAKEN BY THE REVENUE ARE THEREFORE, REJECTED. 3. IN THE RESULT, THE REVENUES APPEAL STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 01.02.2010. SD/- SD/- (RAJENDRA SINGH) ( D.K. AGARWAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED:01.02.2010. JV. ITA NO.1455/M/09 A.Y: 03-04 3 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR E BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI. ITA NO.1455/M/09 A.Y: 03-04 4 DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 21.1.10 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 21.1.10 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 01.02.10 SR.PS/PS 7. FILE SENT TO THE BENCH CLERK 03.02.10. SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER