M/s Neptune securities Pvt.Ltd., Ahmedabad V. The Dy.CIT.,Range-3, Ahmedabad

ITA 31/AHD/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 73146 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-03-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 03-03-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 06-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K DHANESTA
• Assessee Lawyers: ANKIT TALSANIA
• Keywords: Depreciation; Principle of natural justice

Judgement Text

, , , , , , , , IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BENCH, ADHMEDABAD .., ! ! ! ! ' #$, BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER !./ I.T.A. NO.31/AHD/2011 ( & '& & '& & '& & '& / / / / ASSESSMENT YEAR : 2007-08) M/S.NEPTUNE SECURITIES PVT.LTD. 104, SHYAMAK COMPLEX B/H KAMDHENU COMPEX AHMEDABAD-380 015 / VS. THE DY.CIT RANGE-3 AHMEDABAD ( !./)* !./ PAN/GIR NO. : AAACN 6965 E ( (+ / // / APPELLANT ) .. ( ,-(+ / RESPONDENT ) (+ . / APPELLANT BY : SHRI ANKIT TALSANIA, A.R. ,-(+ / . / RESPONDENT BY : SHRI R.K. DHANESTA, SR.D.R. ' 0 / $1 / / / / DATE OF HEARING : 03/03/2014 23' / $1 / DATE OF PRONOUNCEMENT : 19/03/2014 4 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-XVI, AHMEDAB AD (CIT(A) FOR SHORT) DATED 24/11/2010 PERTAINING TO ASSESSME NT YEAR (AY) 2007- 08. THE ASSESSEE HAS RAISED THE FOLLOWING GROUND S OF APPEAL:- 1. THE EARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING ACTION OF AO IN DISALLOWING DEPRECIATION ON AHMEDAB AD STOCK EXCHANGE CARD AMOUNTING TO RS.4,64,087/- WHICH IS W HOLLY UNSUSTAINABLE IN LAW AND ON FACTS. IT IS TOTALLY U NCALLED FOR, DESERVES TO BE QUASHED. ITA NO.31/AHD/2 011 M/S. NEPTUNE SECURITIES PVT.LTD. VS. DY.CIT ASST.YEAR 2007-08 - 2 - 2. THE ORDER PASSED BY CIT(A) IS WITHOUT PROPERLY APPR ECIATING THE FACTS AND HE FURTHER ERRED IN GROSSLY IGNORING VARI OUS SUBMISSIONS, EXPLANATIONS AND INFORMATION SUBMITTED BY THE APPEL LANT FROM TIME TO TIME WHICH OUGHT TO HAVE BEEN CONSIDERED BEFORE PASSING THE IMPUGNED ORDER. THIS ACTION OF LD.CIT(A) IS IN CLE AR BREACH OF LAW AND PRINCIPLES OF NATURAL JUSTICE AND THEREFORE DES ERVES TO BE QUASHED. 3. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER, ED IT, MODIFY, DELETE OR CHANGE ALL OR ANY OF THE GROUNDS OF THE APPEALS AT THE TIME OF OR BEFORE THE HEARING OF THE APPEAL. 2. BRIEFLY STATED FACTS ARE THAT THE CASE OF THE AS SESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S.143( 3) OF THE INCOME TAX ACT,1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED VIDE ORDER DATED 18/12/2009, THEREBY THE ASSESSING OFFICER(AO) MADE VARIOUS ADDITIONS INCLUDING THE DISALLOWANCE OF DEPRECIATIO N CLAIM ON EXCHANGE MEMBERSHIP CARD AMOUNTING TO RS.4,64,087/-. THE AS SESSEE CARRIED THE MATTER BEFORE THE LD.CIT(A), WHO AFTER CONSIDERING THE SUBMISSIONS, PARTLY ALLOWED THE ASSESSEES APPEAL, WHEREIN THE L D.CIT(A) CONFIRMED THE ADDITION MADE BY THE AO. 3. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT T HE AUTHORITIES BELOW WERE NOT JUSTIFIED IN DISALLOWING THE CLAIM OF DEPR ECIATION. HE PLACED RELIANCE ON THE JUDGEMENT OF HONBLE APEX COURT REN DERED IN THE CASE OF TECHNO SHARES & STOCKS LTD. VS. CIT REPORTED AT 327 ITR 323 AND ON THE DECISION OF HONBLE COORDINATE BENCH (ITAT B BENC H AHMEDABAD) RENDERED IN THE CASE OF ACIT VS. M/S.NAVKAR SHARE & STOCK BROKER PVT.LTD. IN ITA NO.3247/AHD/2010 FOR AY 2007-08, DA TED 08/03/2011. HE ALSO PLACED RELIANCE ON THE DECISION OF HONBLE COORDINATE BENCH (ITAT B BENCH AHMEDABAD) RENDERED IN THE CASE OF SANIDHYA ITA NO.31/AHD/2 011 M/S. NEPTUNE SECURITIES PVT.LTD. VS. DY.CIT ASST.YEAR 2007-08 - 3 - SECURITIES (P) LTD. VS. DCIT IN ITA NO.2505/AHD/201 0 FOR AY 2007-08, DATED 13/05/2011. 3.1. ON THE CONTRARY, LD.SR.DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE ORDER OF THE LD.CIT(A) IS JUSTIFIED. HE SUBMITTED THAT THE LD.CIT(A) HAS FOLLOWED THE JUDGE MENT OF HONBLE APEX COURT RENDERED IN THE CASE OF STOCK EXCHANGE A HMEDABAD VS. ACIT (248 ITR 209). 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS THE CASE-LAWS RELIED UPON BY THE RESPECT IVE PARTIES. THE LD.CIT(A) HAS RELIED ON THE JUDGEMENT OF THE HONBL E APEX COURT RENDERED IN THE CASE OF STOCK EXCHANGE AHMEDABAD(SU PRA). WE FIND IN THAT CASE THE ISSUE OF DEPRECIATION WAS NOT BEFORE THE HONBLE APEX COURT AND THE ISSUE BEFORE THE HONBLE APEX COURT W AS WHETHER THE MEMBERSHIP CARD CAN BE ATTACHED U/S.281-B OF THE A CT. THEREFORE, THE JUDGEMENT AS RELIED UPON BY THE LD.CIT(A) IS NOT AP PLICABLE IN THE PRESENT CASE. WE FIND THAT UNDER THE IDENTICAL FACTS, THE HONBLE COORDINATE BENCH OF THIS TRIBUNAL IN ITA NO.2505/AHD/2010 IN T HE CASE OF SANIDHYA SECURITIES (P) LTD.(SUPRA) HAS RESTORED THE MATTER BACK TO THE FILE OF AO FOR CARRYING OUT A COMPARISON BETWEEN THE RULES OF BOMBAY STOCK EXCHANGE AND AHMEDABAD STOCK EXCHANGE IN RELATION TO MEMBERSHIP CARD. SINCE THE JUDGEMENT OF THE HONBLE APEX COUR T RENDERED IN THE CASE OF TECHNO SHARES & STOCKS LTD. (327 ITR 323) IS APPLICABLE WITH REGARD TO RULES AND BY-LAWS OF BOMBAY STOCK EXCHANG E GOVERNING ITA NO.31/AHD/2 011 M/S. NEPTUNE SECURITIES PVT.LTD. VS. DY.CIT ASST.YEAR 2007-08 - 4 - MEMBERSHIP CARD. IT IS NOT CLEAR WHETHER THE RULE S OF BOMBAY STOCK EXCHANGE AND THAT OF THE AHMEDABAD STOCK EXCHANGE A RE SIMILAR, THEREFORE UNDER THESE FACTS, THE ISSUE IS RESTORED BACK TO THE FILE OF AO TO MAKE VERIFICATION WITH REGARD TO THE RULES OF BOMBA Y STOCK EXCHANGE AND AHMEDABAD STOCK EXCHANGE AND AFTER MAKING COMPA RISON OF RULES, IF IT IS FOUND THAT THE BOMBAY STOCK EXCHANGE MEMBE RSHIP AND THE AHMEDABAD STOCK EXCHANGE CARD ARE PARI MATERIAL ARE SAME, THEN THE AO WOULD ALLOW THE CLAIM OF THE ASSESSEE. THUS, TH IS GROUND OF ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOS ES ONLY. 5. GROUND NO.2 IS AGAINST THE ACTION OF LD.CIT(A) R EGARDING BREACH OF LAW AND PRINCIPLES OF NATURAL JUSTICE. SINCE WE HAVE RESTORED THE GROUND NO.1 OF ASSESSEES APPEAL BACK TO THE FILE OF AO, THIS GROUND IS ACADEMIC IN NATURE. 6. GROUND NO.3 IS GENERAL IN NATURE REQUIRES NO IND EPENDENT ADJUDICATION. 7. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED BUT FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN COURT ON THE DATE MENTIONED HER EINABOVE AT CAPTION PAGE SD/- SD/- ( .. ) (' #$) ( N.S. SAINI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 19/ 03 /2014 71.., .../ T.C. NAIR, SR. PS ITA NO.31/AHD/2 011 M/S. NEPTUNE SECURITIES PVT.LTD. VS. DY.CIT ASST.YEAR 2007-08 - 5 - 4 / ,$8 98'$ 4 / ,$8 98'$ 4 / ,$8 98'$ 4 / ,$8 98'$/ COPY OF THE ORDER FORWARDED TO : 1. (+ / THE APPELLANT 2. ,-(+ / THE RESPONDENT. 3. !! $ ': / CONCERNED CIT 4. ':() / THE CIT(A)-XVI, AHMEDABAD 5. 8 #; ,$ , , / DR, ITAT, AHMEDABAD 6. ;<& =0 / GUARD FILE. 4' 4' 4' 4' / BY ORDER, -8$ ,$ //TRUE COPY// > >> >/ // / !) !) !) !) ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 11.3.14 (DICTATION-PAD 10-PA GES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 12.3.14 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH FAIR ORDER PLACED BEFORE OTHER MEMBER 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.19.3.14 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 19.3.14 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER