ACIT 4(2), MUMBAI V. PUNEET SECURITIES P.LTD, MUMBAI

ITA 1599/MUM/2012

• Counselvise Citation: 159919914 RSA 2012
• Duration Of Justice: 1 year(s) 5 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 02-09-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 06-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEEPAK KUMAR SINHA
• Section: 115JB; 6; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C , BENCH , MUMBAI , BEFORE SHRI R.K.GUPTA , J M & SHRI R AJENDRA SINGH , A M TA NO. 1599 / MUM / 20 1 2 ( ASSESSMENT YEAR : 200 8 - 09 ) ACIT 4(2), MUMBAI - 20 VS. M/S PUNEET SECURITIES PVT. LTD., 105/4, GROUND FLOOR, BOMBAY SAMACHAR MARG, MUMBAI - 400 001 PAN/GIR NO. : A AA CP 2313 C ( APPELLANT ) .. ( RESPONDENT ) /REVENUE BY : MR. DEEPAK KUMAR SINHA /ASSESSEE BY : MR. RAKESH JOSHI DATE OF HEARING : 2 ND S E PTEMBER , 201 3 DATE OF PRONOUNCEMENT : 4 TH SEPTEMBER , 2013 O R D E R P ER SHRI R.K.G UPTA, JM : THE DEPARTMENT HAS PREFERRED THIS APPEAL AGAINST THE ORDER OF LEARNED CIT(A) , MUMBAI FOR ASSESSMENT YEAR 2008 - 09 . 2 . THE DEPARTMENT IN ITS APPEAL HAS RAISED OBJECTION IN REGARD TO HO LDING THAT REBATE IS ALLOWABLE FROM TAX LIABILITY COMPUTATION UNDER SECTION 115JB OF THE ACT. 3 . AT THE VERY OUTSET, LEARNED COUNSEL OF THE ASSESSEE STATED THAT THE ISSUE INVOLVED IN THIS APPEAL IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISI ON OF THE HON BLE KARNATAKA HIGH COURT IN THE I TA NO. 1599 /1 2 2 CASE OF CIT VS. M/S HARIZON CAPITAL LTD., REPORTED IN 245 CTR 601 , COPY OF WHICH HAS ALSO BEEN FILED. 4 . LEARNED DR, ON THE OTHER HAND, STATED THAT THOUGH THE ISSUE IS COVERED BY THE DECISION OF THE HON BLE KARNATAKA HIGH COURT, HOWEVER, HE PLACED RELIANCE ON THE ORDER OF AO. 5. AFTER CONSIDERING THE ORDER OF THE AO AND CIT(A) , WE FIND NO INFIRMITY IN THE FINDINGS OF THE LEARNED CIT(A) . WE NOTED THAT AGAINST THE FINDINGS OF THE AO THAT THE TAX LIABILITY UNDE R SECTION 115JB OF THE INCOME TAX ACT WAS HIGHER THAN THE NORMAL TAX HOLDING AND, THEREFORE, THE ASSESSEE WAS LIABLE TO PAY TAX UNDER SECTION 115JB INSTEAD OF NORMAL TAX BY NOT ALLOWING CREDIT OF SECURITIES TRANSACTION TAX FROM TAX PAYABLE UNDER SECTION 11 5JB. 6 . ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A), BEFORE WHOM IT WAS SUBMITTED THAT DEDUCTION UNDER SECTION 88E BE ALLOWED FROM TAX PAYABLE UNDER MAT(115JB) FOR COMPARISON OF NET TAX LIABILITY BOTH UNDER NORMAL AND U/S 115JB FOR THE PURPOSE OF DETERMI NING THE TAXABILITY UNDER SECTION 115JB. IN SUPPORT OF ITS CONTENTIONS, THE ASSESSEE PLACED RELIANCE ON THE DECISION IN THE CASE OF M/S HORIZON CAPITAL LTD ., DECIDED BY THE BANGALORE BENCH IN ITA NO. 592/BANGALORE/2010 AND IN THE CASE OF M/S MBL & CO. LTD. , DECIDED IN ITA NO. 2478/DEL/2010 , BY THE DELHI BENCH OF THE TRIBUNAL AND ALSO PLACED RELIANCE ON THE DECISION OF NAMAN SECURITIES & I TA NO. 1599 /1 2 3 FINANCE PVT. LTD. , DECIDED BY THE CIT(A) FOR THE ASSESSMENT YEAR 2007 - 08. LEARNED CIT(A) AFTER CONSIDERING THE SUBMISSION A ND PERUSING THE MATERIAL ON RECORD FOUND THAT THE ISSUE IS SQUARELY COVERED BY THE DECISION OF THE TRIBUNAL IN THE CASE OF M/S HORIZON CAPITAL LTD (SUPRA) & M/S MBL & CO. LTD. (SUPRA) . ACCORDINGLY, HE ALLOWED THE ISSUE IN FAVOUR OF THE ASSESSEE. 7 . THE FIN DINGS OF THE LEARNED CIT(A) HAVE BEEN RECORDED IN PARA 5.3, WHICH ARE AS UNDER : - 5.3 I HAVE CONSIDERED THE CONTENTION OF THE AO AS WELL AS OF THE LD. AR.I FIND THAT IDENTICAL ISSUE HAS BEEN DECIDED BY THE HON BLE TRIBUNAL. IN THE CASES OF M/S HORIZON CAPI TAL LTD . AND M/S MBL & CO. LTD. (SUPRA) , UNDER IDENTICAL FACT THAT THE PRESENT ASSESSEE HAD ALSO MADE PAYMENT OF STT AND ITS TOTAL INCOME INCLUDED INCOME FROM TRANSACTIONS ON WHICH STT WAS PAID. THE ONLY REASONS STATED BY THE AO FOR NOT ALLOWING REBATE U/ S.88E FROM TAX PAYABLE U/S.115JB OR COMPUTING TAX PAYABLE UNDER NORMAL PROVISIONS AFTER REDUCING THE AMOUNT OF REBATE U/S88E FROM SUCH TAX FOR COMPARING THE TAX PAYABLE NORMALLY OR U/S.115JB ARE THAT STT WAS NOT INCOME TAX AND PROVISIONS OF SECTION 115JB W ERE NON - OBSTANTE DEEMING FICTIONS. FURTHER IDENTICAL TO THE CONTENTIONS RAISED BY THE APPELLANT, IT WAS SUBMITTED BEFORE THE HON BLE TRIBUNAL IN THE CASE OF M/S HORIZON CAPITAL LTD. (SUPRA), THAT FORM NO. 6 THE FORMAT OF INCOME TAX RETURN PRESCRIBED BY THE DEPARTMENT OF INCOME TAX PROVIDE FOR REBATE U/S.88E FROM HIGHER OF INCOME TAX UNDER REGULAR PROVISIONS OF THE ACT OR UNDER SECTION 115JB OF THE ACT. THUS, I FIND THAT THE RELEVANT FACTS AND CIRCUMSTANCES AS WELL AS THE STATEMENTS AND ARGUMENTS OF BOTH THE A SSESSEE AND THE DEPARTMENT IN THE CASES OF M/S HORIZON CAPITAL LTD. & M/S. MBL & CO. LTD. (SUPRA) , WERE IDENTICAL TO THOSE IN THE INSTANT CASE OF THE APPELLANT. THE DECISION IN THE CASES OF M/S HORIZON CAPITAL LTD. & M/S MBL & CO. LTD. (SUPRA) , THEREFORE, ARE CLEARLY APPLICABLE IN THE INSTANT CASE WHICH BEING THE DECISION OF A SUPERIOR JUDICIAL AUTHORITY IS BINDING FOR DECIDING IDENTICAL ISSUE UNDER IDENTICAL FACTS AND CIRCUMSTANCES. FURTHER, IT HAS BEEN POINTED BY THE APPELLANT THAT SAME VIEW HAS BEEN PRON OUNCED IN THE ORDER DATED 02.07.2010 IN APPEAL NO. CIT(A) - 41/ ACC - 37/IT - 601/09 - 10 IN THE NAME OF NAMAN SECURITIES & FINANCE PVT. LTD. IN WHICH IT HAS BEEN OBSERVED THAT IT WAS CLEAR FROM ITR 6 THAT WHERE TAX PAYABLE WORKS OUT UNDER NORMAL PROVISIONS OF ACT O R UNDER MAT U/S 115JB WHICHEVER IS HIGHER, THE REBATE U/S.88E IS I TA NO. 1599 /1 2 4 TO BE ALLOWED TO THE APPELLANT THAT THER E WAS N O PROHIBITION IN CLAIMING REBATE IN RESPECT OF SECURITIES TRANSACTION TAX PAID AGAINST INCOME TAX PAY ABLE UNDER MAT UNDER PROVISIONS OF SECTION 115JB OF THE INCOME TAX. RESPECTFULLY FOLLOWING THE DECISION IN THE CASE OF M/S HORIZON CAPITAL LTD. & M/S MBL & CO. LTD. (SUPRA) , RENDERED BY THE HON BLE BANGALORE AND DELHI TRIBUNALS RESPECTIVELY, I AM OF THE OPINION THAT COMPARISON BETWEEN TAX DETERMINE D UNDER NORMAL PROVISIONS OF THE INCOME TAX ACT AND THAT DETERMINED UNDER SECTION 115JB SHALL BE MADE FOR THE PURPOSE OF DETERMINING APPLICABILITY OF THE PROVISIONS O F SE CTION 115JB ON GROSS BASIS BEFORE ALLOWING REBATE U/S.88E WOULD ALSO BE AVAILABLE TO TH E ASSESSEE AGAINST THE TAX PAYABLE U/S.115JB OF THE INCOME TAX ACT. THE APPELLANT SHALL BE REQUIRED TO MAKE PAYMENT OF HIGHER OF THE TWO AMOUNTS. SUCH POSITION IS INEVITABLE FROM THE FORMAT OF THE RETURN OF INCOME (ITR - 6) AS PRESCRIBED. THE APPEAL ON THIS GROUND IS ALLOWED. 8. THE ABOVE FINDINGS OF THE LEARNED CIT(A) REMAINED UNCONTROVERTED. WE FURTHER NOTED THAT THE DECISION OF THE BANGALORE BENCH IN THE CASE OF M/S HORIZON CAPITAL PVT. LTD. (SUPRA) HAS BEEN CONFIRMED BY THE HON BLE KARNATAKA HIGH COURT REPORTED IN 245 CTR 601 , COPY OF WHICH IS ALSO PLACED ON RECORD. THEREFORE, WE SEE NO REASON TO INTERFERE IN THE FINDINGS OF THE LEARNED CIT(A). ACCORDINGLY, WE CONFIRM THE ORDER OF THE LEARNED CIT(A) 9 . RESULTANTLY , APPEAL OF THE DEPARTMENT IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 4 TH DAY OF SEPT . 201 3 . SD/ - ( ) ( R AJENDRA SINGH ) SD/ - ( ) ( R.K.GUPTA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 04 / 09 / 2013 /PKM , PS I TA NO. 1599 /1 2 5 COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE C I T(A) , MUMBAI . 4. / C I T 5. / DR, ITAT, MUMBAI . 6. GUARD FILE. //TRUE COPY// / BY ORDER, ( /ASSTT. REGISTRAR) / ITAT, MUMBAI