DCIT 2(1), MUMBAI V. HORNIC COMMODITY DEALERS P.LTD, MUMBAI

ITA 2711/MUM/2013

• Counselvise Citation: 271119914 RSA 2013
• Duration Of Justice: 1 year(s) 9 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-02-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 03-02-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 08-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DHARMESH SHAH
• Assessee Lawyers: DR P DANIEL SPL
• Section: 115JB

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES H MUMBAI . . , . . , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI R.C.SHARMA , ACCOUNTANT MEMBER ITA NO.2711/MUM/2013(A.Y. 2007-08) THE DCIT 2(1), ROOM NO.561, AAYKAR BHAVAN, MK ROAD, MUMBAI 400020 (APPELLANT ) VS. HORNIC COMMODITY DEALERS PVT. LTD., 201, 2 ND FLOOR, FORT FOUNDATION, MAHARASHTRA CHAMBERS, FORT, MUMBAI 400023 PAN:AABCH 4428 (RESPONDENT) APPELLANT BY : SHRI DHARMESH SHAH RESPONDENT BY : SHRI DR .P.DANIEL, SPL.COUNSEL. DATE OF HEARING : 03/02/2015 DATE OF PRONOUNCEMENT : 03 /02/2015 ORDER PER I.P.BANSAL, J.M: THIS IS AN APPEAL FILED BY THE REVENUE AND IT IS D IRECTED AGAINST ORDER PASSED BY LD. CIT(A)-4, MUMBAI DATED 01.02.2013 FOR ASSES SMENT YEAR 2007-08. GROUNDS OF APPEAL READ AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN ALLOWING RELIEF TO THE ASSESSEE TO THE EXT ENT IMPUGNED IN THE GROUNDS ENUMERATED BELOW 1. THE ORDER OF THE CIT(A) IS OPPOSED TO LAW AND FACTS OF THE CASE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) HAS ERRED IN COMING TO A CONCLUSION THAT PROVISIONS OF SECTION 115JB ARE NOT APPLICABLE TO ITA NO.2711/MUM/2013(A.Y. 2007-08) 2 THIS CASE, OVERLOOKING THE FACT THAT THE TAX PAYABL E U/S 115JB IS HIGHER THAN THE TAX PAYABLE AS PER NORMAL PROVISIONS. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DIRECTING THAT REBATE U/S 88E HAS TO BE AL LOWED OUT OF TAX PAYABLE AS PER PROVISIONS OF SECTION 115JB OVERLOOKING THE FACT TH AT SECTION 115JB STARTS WITH NON- ABSTANTE CLAUSE AND THEREFORE, SUCH REBATE CANNOT B E ALLOWED. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DIRECTING THAT REBATE U/S 88E HAS TO BE AL LOWED OUT OF TAX PAYABLE AS PER PROVISIONS OF SECTION 115JB OVERLOOKING THE FACT TH AT SECTION 115JB IS A CODE IN ITSELF AND THE QUANTUM OF TAX REBATE AS PER SUB SECTION (2) OF SECTION 88E CANNOT BE DETERMINED WHILE WORKING OUT THE TAX PAYABLE AS PER THE PROVIS IONS OF SECTION 115JB. 2. IT MAY BE MENTIONED HERE THAT LD. AR WAS REQUES TED TO STATE THAT WHETHER OR NOT ASSESSEE HAS ALSO PREFERRED ANY APPEAL AGAINST THE IMPUGNED ORDER PASSED BY LD. CIT(A). IN RESPONSE IT WAS STATED BY LD. AR T HAT ASSESSEE DID NOT FILE ANY APPEAL AGAINST THE IMPUGNED ORDER PASSED BY LD. CIT (A). 3. IT WAS FURTHER SUBMITTED BY LD. AR THAT THE ISSU E RAISED BY THE REVENUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE FOLLOWING DECISION OF ITAT: (1) D.H. SECURITIES (P) LTD. VS. DCIT, (2014) 146 ITD 1 (SB) (2) ACIT VS. FUTUREPATH MANAGEMENT SERVICES PVT. L TD., ITA NO.7678/MUM/2011 ORDER DATED 27/02/2013. IT WAS FURTHER SUBMITTED THAT THIS ISSUE IS ALSO C OVERED BY THE DECISION OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. HORIZO N CAPITAL LTD., (2011) 245 CTR (KAR) 601. AND DECISION OF HONBLE DELHI HIG H COURT IN THE CASE OF CIT VS. MBL & CO. LTD., (2013) 259 CTR (DEL) 505. 4. HOWEVER, LD. DR RELIED UPON THE ORDER PASSED BY THE ASSESSING OFFICER. ITA NO.2711/MUM/2013(A.Y. 2007-08) 3 5. AFTER CAREFUL CONSIDERATION OF THE SUBMISSIONS O F BOTH THE PARTIES WE ARE OF THE OPINION THAT THE ISSUE RAISED BY THE REVENUE IN THE PRESENT APPEAL IS COVERED IN FAVOUR OF THE ASSESSEE BY THE AFOREMENTIONED DECIS IONS. REFERENCE CAN BE MADE TO THE DECISION OF HONBLE DELHI HIGH COURT IN THE CA SE OF CIT VS. MBL & CO. LTD. (SUPRA), WHEREIN IT HAS BEEN HELD THAT PROVISIONS O F SECTION 87 AND 88E OF THE ACT APPLY TO TOTAL INCOME COMPUTED UNDER SECTION 115JB AND THE ASSESSEE WOULD BE ENTITLED TO DEDUCTION TO THE EXTENT OF THE SECURIT Y TRANSACTION TAX BORNE BY THE ASSESSEE DURING THE COURSE OF BUSINESS IN THE RELEV ANT PREVIOUS YEAR. IN THE CASE OF CIT VS. HORIZON CAPITAL LTD., (SUPRA) ALSO IT HAS BEEN LAID DOWN THAT ASSESSEE IS ENTITLED TO REBATE UNDER SECTION 88E IN RESPECT OF STT PAID WHERE THE TOTAL INCOME IS ASSESSED UNDER SECTION 115JB OF THE ACT. AFO REMENTIONED DECISIONS OF TRIBUNAL ALSO LAID DOWN SIMILAR PROPOSITION. 6. IN THIS VIEW OF THE SITUATION AFTER HEARING BOTH THE PARTIES WE FIND NO MERIT IN THE DEPARTMENTAL APPEAL AND THE SAME IS DISMISSED. 7. IN THE RESULT, APPEAL FILED BY THE REVENUE IS D ISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 03/02/2015 ! ' #$% 03/02/2015 & ' SD/- SD/- ( . . /R.C.SHARMA ) ( . . / I.P. BANSAL ) /ACCOUNTANT MEMBER / JUDICIAL EMBER MUMBAI; #$ DATED 03/02/2015 ITA NO.2711/MUM/2013(A.Y. 2007-08) 4 ()* ()* ()* ()* +*!) +*!) +*!) +*!) / COPY OF THE ORDER FORWARDED TO : 1. ,- / THE APPELLANT 2. (.,- / THE RESPONDENT. 3. / ( ) / THE CIT(A)- 4. / / CIT 5. *0& ()$ , , / DR, ITAT, MUMBAI 6. &1 2 / GUARD FILE. $ $ $ $ / BY ORDER, .*) () //TRUE COPY// 3 33 3 / 4 4 4 4 5 5 5 5 (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . $ . ./ VM , SR. PS