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

ITA 5373/MUM/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2079 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-05-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Next Hearing Date: 12-05-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 27-08-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NAVEEN GUPTA
• Assessee Lawyers: PREM BHANDARI
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI VIJAY PAL RAO, JM ITA NO.5373/MUM/2008 : ASST.YEAR 2005-2006 M/S.SEEMA SECURITIES (P) LIMITED 723 P.J.TOWER, DALAL STREET FORT, MUMBAI 400 023. PA NO.AACCS7683Q. VS. THE ASSTT.COMMISSIONER OF INCOME-TAX CIRCLE 4(2) MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PREM BHANDARI RESPONDENT BY : SHRI NAVEEN GUPTA O R D E R PER R.S.SYAL, AM : THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDE R PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) ON 24.7.2008 I N RELATION TO THE ASSESSMENT YEAR 2005-2006. 2. FIRST GROUND IS AGAINST THE CONFIRMATION OF DISA LLOWANCE OF DEPRECIATION U/S.32 ON BOMBAY STOCK EXCHANGE MEMBERSHIP CARD. 3. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD WE FIND THAT THIS ISSUE IS NO MORE RES INTEGRA IN VIEW OF THE JUDGEMENT OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE O F CIT VS. TECHNO SHARES & STOCKS LIMITED [(2010) 323 ITR 69 (BOM.)] HOLDING THAT DEPRECIATION CANNOT BE ALLOWED ON BOMBAY STOCK EXCHANGE MEMBERSHIP CARD. T HE VIEW TAKEN BY THE LEARNED CIT(A), BEING IN CONFORMITY WITH THAT TAKEN BY THE HONBLE JURISDICTIONAL HIGH COURT, DOES NOT WARRANT ANY INTERFERENCE. THI S GROUND IS NOT ALLOWED. 4. THE ONLY OTHER GROUND IS AGAINST THE DISALLOWANC E OF RS.2,95,089 MADE U/S.40(A)(IA) OUT OF TRANSACTION CHARGES PAID TO ST OCK EXCHANGE. ON THIS ISSUE ALSO BOTH THE SIDES ARE IN AGREEMENT THAT IT HAS BEEN FA IRLY DECIDED BY DIFFERENT BENCHES ITA NO.5373/MUM/2008 M/S.SEEMA SECURITIES (P) LIMITED. 2 OF THE MUMBAI TRIBUNAL HOLDING THAT TRANSACTION FEE S PAID TO STOCK EXCHANGE IS A PAYMENT FOR USE OF FACILITY PROVIDED BY STOCK EXCHA NGE AND NOT FOR ANY SERVICES AND HENCE PROVISIONS OF SECTION 194J CANNOT BE APPL IED, AS A RESULT OF WHICH NO DISALLOWANCE CAN BE MADE U/S.40(A)(IA). THE LEARNED A.R. HAS PLACED ON RECORD A COPY OF THE ORDER IN KOTAK SECURITIES LTD. VS. ADDL.CIT [(2009) 124 TTJ (MUMBAI) 241] DECIDING THE POINT IN ASSESSEES FAVOUR. RESPECTF ULLY FOLLOWING THE PRECEDENT, WE OVERTURN THE IMPUGNED ORDER ON THIS ISSUE AND OR DER FOR THE DELETION OF ADDITION OF RS.2,95,089. THIS GROUND IS ALLOWED. 5. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED. ORDER PRONOUNCED ON THIS 14 TH DAY OF MAY 2010. SD/- SD/- ( VIJAY PAL RAO ) ( R.S.SYAL ) JUDICIAL MEMBER ACCOUNTANT M EMBER MUMBAI : 14 TH MAY, 2010 . DEVDAS* COPY TO : 1. THE APPELLANT. 2. THE RESPONDENTS. 3. THE CIT CONCERNED 4. THE CIT(A)-IV, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI. ITA NO.5373/MUM/2008 M/S.SEEMA SECURITIES (P) LIMITED. 3 DATE INITIAL 1. DRAFT DICTATED ON 12.05.2010 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 12.05.2010 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. FILE SENT TO THE BENCH CLERK SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 9. DATE OF DISPATCH OF ORDER. *