ACIT 25(2), MUMBAI V. ATHENA INVESTMENT, MUMBAI

ITA 3129/MUM/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8086 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-12-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 04-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M C OMI NINGSHEN
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI N.K. PRADHAN , ACCOUNTANT MEMBER ITA N O. 3129/MUM/2016 ( ASSESSMENT YEAR : 2008 09 ) ACIT 25(2) R.N.508, C 10, 5 TH FLOOR PRATYAKSHAKAR BHAVAN BKC, BANDRA (E) MUMBAI 400 051 . APPELLANT V/S M/S. ATHENA INVESTMENT 301, CASABLANCA, PLOT NO.130 GULMOHAR ROAD, JVPD SCHEME VILE PARLE (W) MUMBAI 400 049 PAN: AAMFA7242E . RESPONDENT APPELLANT BY : SHRI M.C. OMI NINGSHEN RESPONDENT BY : NONE DATE OF HEARING 15/1 2/2017 DATE OF ORDER 15/12/2017 O R D E R PER SAKTIJIT DEY, J.M. THIS IS AN APPEAL BY THE DEPARTMENT AGA INST ORDER DATED 25/02/2016 OF LD. COMMISSIONER OF INCOME TAX (APPEALS) 4 4 , MUMBAI FOR THE A.Y.200 8 0 9 . 2 ITA NO. 3129/MUM/2016 M/S. ATHENA INVESTMENT 2. BRIEFLY THE FACTS ARE , THE ASSESSEE A PARTNERSHIP FIRM IS ENGAGED IN THE BUSINESS OF SHARE TRADING. FOR THE ASSESSMENT UNDER DISPUTE, ASSESSEE FILED ITS RETURN OF INCOME ON 10/08/2008 DECLARING TOTAL INCOME OF RS.1,32,76 ,313/. ASSESSEES RETURN WAS SELECTED FOR SCRUTINY AND THE ASSESSING OFFICER AFTER CALLING FOR NECESSARY DETAILS AND EXAMINING THEM , COMPLETED THE ASSESSMENT UNDER SECTION.143(3) OF THE ACT VIDE ORDER DATED 18/11/2011 ACCEPTING THE RETURN ED INCOME OF RS.1, 32,76,334/ A FTER ALLOWING REBATE UNDER SECTION. 88E OF THE ACT. SUBSEQUENTLY, THE ASSESSING OFFICER BEING OF THE VIEW THAT REBATE UNDER SECTION.88E WAS WRONGLY ALLOWED ON TAXABLE INC OME OF RS.45,43,833/ WHICH DID NOT SUFFER SECURITY TRANSACTION TAX , ISSU ED A NOTICE UNDER SECTION.154 OF THE ACT TO RECTIFY THE MISTAKE IN THE ASSESSMENT ORDER. THOUGH , THE ASSESSEE OBJECTED TO THE PROPOSED RECTIFICATION, HOWEVER, THE ASSESSING OFFICER REJECTING THE OBJECTION OF THE ASSESSEE HELD THAT ASSESSEE IS NOT ELIGIBLE TO AVAIL REBATE UNDER SECTION. 88E ON INC OME AMOUNTING TO RS.45,43,833/ . ACCORDINGLY , HE PASSED THE ORDER UNDER SECTION.154 REDUCING THE REBATE UNDER SECTION 88E . 3. BEING AGGRIEVED OF T HE ORDER SO PASSED, ASSESSEE PREFERRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY BOTH ON THE ISSUE OF 3 ITA NO. 3129/MUM/2016 M/S. ATHENA INVESTMENT JURISDICTION TO INITIA TE PROCEEDING UNDER SECTION. 154 AS WELL AS ON MERITS. 4. LEARNED COMMISSIONER OF INCOM E TAX (APPEALS) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE A LLOWED BOTH THE GROUNDS AND ACCORDINGLY, RESTORED THE REBATE UNDER SECTION.88E AS PER THE ASSESSMENT ORDER. 5. WHEN THE APPEAL W AS CALLED FOR HEARING NO ONE APPEARED ON BEHALF OF THE ASSESSEE IN SPITE OF ISSUANCE OF NOTICE THROUGH RPAD. THEREFORE, WE PRO CEED TO DISPOSE OFF THE APPEAL EX PARTE QUA THE ASSESSEE AFTER HEARING THE LD. DEPARTMENTAL REPRESENTATIVE. 6. HEARD LD. DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIALS ON RECORD. AS COULD BE SEEN , BEFORE THE FIRST APPELLATE AUTHORITY THE ASSESSEE H AS FACTUALLY ESTABLISHED THROUGH DOCUMENTARY EVIDENCE THAT TAX COMPUTED ON INCOME CHARGEABLE ARISING FROM TAXABLE SECURITIES TRANSACTION WAS RS.39,82,899/ WHICH WAS CORRECTLY ALLOWED BY THE ASSESSING OFFICER WHILE COMPLETING THE ASSESSMENT. 8. THE FIRST APPELLATE AUTHORITY HAS ALSO FOUND THAT THE CALCULATION OF REBATE UNDER SECTION.88E OF THE ACT BY THE ASSESSING 4 ITA NO. 3129/MUM/2016 M/S. ATHENA INVESTMENT OFFICER WHILE COMPLETING THE ASSESSMENT WAS AS PER THE PROCEDURE LAID DOWN IN THE ACT. HE HAS ALSO FOUND THAT THE TAX LIABILITY ON NET BUSINESS TRANSACTION AFTER REDUCIN G NON SECURITY TRANSACTION TAX SU FFERED TRANSACTION WAS RS.39,82,899/ A S AGAINST THE GROSS SECURITY TRANSACTION TAX PAID OF RS. 49,45,466/ , THEREFORE , THE ASSESSING OFFICER WHILE COMPLETING THE ASSESSEE HAS RESTRICTED THE REBATE UNDER SECTION.88E TO RS.39,82,899/ AS PER THE STATUTORY PROVISION. 9. THE LD. DEPARTMENTAL REPRESENTATIVE WAS UNABLE TO DEMONSTRATE BEFORE US THAT THE AFORESAID FACTUAL FINDING OF THE COMMISSIONER OF INCOME TAX (APPEALS) OR THE COMPUTATION OF REBATE UNDE R SECTION.88E IN THE ASSESSMENT ORDER WAS NOT IN ACCORDANCE WITH THE PROVISIONS OF THE ACT. THEREFORE, WE ARE UNABLE TO INTERFERE WITH THE ORDER OF THE LD. FIRST APPELLATE AUTHORITY. MOREOVER, AS RIGHTLY HELD BY THE LD. FIRST APPELLATE AUTHORITY, THE ASSES SING OFFICER WHILE COMPLETING THE ASSESSMENT HAS ALLOWED REBATE UNDER SECTION.88E AFTER APPLICATION OF MIND AND FOLLOWING DUE PROCESS OF LAW. THAT BEING THE CASE , IT CANNOT BE SAID THAT THE ASSESSMENT ORDER SUFFERED FROM ANY ERROR SO AS TO RECTIFY IT UNDER SECTION.154 OF THE ACT. IN THE AFORESAID VIEW OF THE MATTER WE 5 ITA NO. 3129/MUM/2016 M/S. ATHENA INVESTMENT UPHOLD THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) BY DISMISSING THE GROUNDS RAISED. 10. IN THE RESULT, DEPARTMENTS APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 15.12.2017 SD/ - SD/ - SD/ - N.K. PRADHAN ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 15.12.2017 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE . TRUE COPY BY ORDER KARUNA SR. PRIVATE SECRETARY (DY./ASSTT. REGISTRAR) ITAT, MUMBAI