AMISHA SANJAY MOTA, MUMBAI V. ITO WD 12(2)(3), MUMBAI

ITA 2989/MUM/2013

• Counselvise Citation: 298919914 RSA 2013
• Duration Of Justice: 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 18-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROOPAK KUMAR
• Assessee Lawyers: JITENDRA SINGH
• Keywords: Speculation loss
• Section: 32; 132

Judgement Text

. , IN THE INCOME TAX APPELLATE TRIBUNAL SMC , BENCH MUMBAI , BEFORE SHRI R. K. GUPTA , JM ITA NO. 2989 / MUM/ 20 1 3 ( ASSESSMENT YEAR : 200 7 - 08 ) AMISHA SANJAY MOTA, 35/37, 1 ST FLOOR, RATAN HOUSE, BAZARGATE STREET, FORT, MUMBAI - 400 001. VS. ITO WARD 12(3)(3), MUMBAI PAN/GIR NO. : A ABPM 5164 G ( APPELLANT ) .. ( RESPONDENT ) /ASSESSEE BY : SHRI JITENDRA SINGH /REVENUE BY : SHRI ROOPAK KUMAR DATE OF HEARING : 19 TH AUGUST , 201 3 DATE OF PRONOUNCEMENT : 19 TH AUGUST , 2013 O R D E R TH E ASSESSEE HAS PREFERRED THIS APPEAL AGAINST THE ORDER OF LEANED CIT(A) - 10 , MUMBAI RELA TING TO THE ASSESSMENT YEAR S 200 7 - 08 . 2 . THE ASSESSEE IS OBJECTING IN UPHOLDING THE DISALLOWANCE OF REBATE OF RS. 26,113/ - UNDER SECTION 88E BEING PROPORTIONATE AMOUNT OF STT PAID ON SECURITIES TRANSACTIONS OF SPECULATIVE NATURE ON THE GROUND THAT THERE WAS SPECULATION LOSS. 3 . THE ASSESSEE ENGAGED IN THE BUSINESS OF TRADING IN SHARES AND STOCKS. DURING THE ASSESSMENT PROCEEDINGS, THE AO NOTICED THAT THE ASSESSEE CLAIMED DEDUCTION UNDER SECTION 88E ON SPECULATION INCOME AS WELL AS SPECULATION LOSS. THE AO WAS OF THE VIEW THAT THE DEDUCTION ITA NO. 2989 /20 1 3 2 UNDER SECTION 88E IS ALLOWABLE ON THE PROFIT AND NOT ON THE LOSS. ACCORDINGLY, HE DISALLOWED THE PROPORTIONATE REBATE OF RS. 26,113/ - C LAIMED UNDER SECTION 88E OF THE ACT. 4. IN APPEAL , LEARNED CIT(A) ALSO CONFIRMED THE ACTION OF THE AO. 5 . AFTER CONSIDERING THE ORDER OF AO AND CIT(A) , I FIND THAT THE ASSESSEE DESERVES TO SUCCEED ON THE ISSUE INVOLVED. THE ALLOWABILITY OF REBATE IS ALL OWABLE AS ADMITTED BY THE AO HIMSELF, HOWEVER, THE AO DISALLOWED PROPORTIONATE REBATE CLAIMED UNDER SECTION 88E BY OBSERVING THAT ON SPECULATION TRANSACTION WHERE THE LOSS HAS INCURRED IS NOT ALLOWABLE. HOWEVER, HE HAS ALLOWED THE REBATE ON ACCOUNT OF STT PAID ON THE SPECULATION INCOME. IN MY VIEW, WHETHER THERE IS INCOME OR LOSS , IF THE STT PAID , IS ALLOWABLE UNDER SECTION 88E THEN DEDUCTION SHOULD HAVE BEEN ALLOWED IN CASE OF LOSS ALSO. THE TOTAL INCOME OF THE ASSESSEE AFTER ADJUSTING THE LOSS IS OF PROFI T. THEREFORE, THE CLAIM OF THE ASSESSEE IS ALLOWABLE. ACCORDINGLY, I DIRECT THE AO TO ALLOW THE REBATE CLAIMED BY THE ASSESSEE. 6 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN TH E OPEN COURT ON THIS 19 TH DAY OF AUG .2013 201 3 SD/ - ( ) ( R.K.GUPTA ) / JUDICIAL MEMBER MUMBAI ; DATED : 19/08/ 2013 /PKM , PS ITA NO. 2989 /20 1 3 3 COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A) , MUMBAI. 4. / CIT 5. / DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// / BY ORDER, ( ASSTT. REGISTRAR) / ITAT, MUMBAI