MEHTA INVESTMENTS, MUMBAI V. ADDL CIT 4(3), MUMBAI

ITA 5747/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1522 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-06-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Assessment Year: 2005-2006
• Appeal Filed On: 28-10-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: VIRENDRA OJHA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI VIJAY PAL RAO, JM ITA NOS.5747 & 5748/MUM/2009 : ASST.YEARS 2005-200 6 & 2006-2007 M/S.MEHTA INVESTMENTS OM PLAZA, 4 TH FLOOR, OPP. KANDIVALI STATION KANDIVALI (WEST), MUMBAI 400 067. PA AAGFM9171Q. VS. THE ADDL.COMMISSIONER OF INCOME-TAX RANGE 4(3) MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI DHARMESH SHAH RESPONDENT BY : SHRI VIRENDRA OJHA O R D E R PER R.S.SYAL, AM : THESE TWO APPEALS BY THE ASSESSEE RELATE TO THE AS SESSMENT YEARS 2005-2006 AND 2006-2007. SINCE COMMON ISSUES ARE RAISED IN TH ESE APPEALS, WE ARE, THEREFORE, PROCEEDING TO DISPOSE THEM OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. ASSESSMENT YEAR 2005-2006 2. FIRST TWO GROUNDS WERE NOT PRESSED BY THE LEARNE D A.R. THESE, THEREFORE, STAND DISMISSED. 3. GROUND NO.3 IS AGAINST THE CONFIRMATION OF DISAL LOWANCE OF RS.41,396 ON ACCOUNT OF PENALTY PAID TO NATIONAL STOCK EXCHANGE. AT THE VERY OUTSET, THE LEARNED COUNSEL FOR THE ASSESSEE CONTENDED THAT THIS ISSUE HAS BEEN DECIDED IN ASSESSEES FAVOUR BY THE MUMBAI BENCH OF THE TRIBUNAL IN SEVE RAL CASES INCLUDING GOLDCREST CAPITAL MARKETS LTD. VS. ITO [36 DTR (TRIB) 177 (MU M.)] . COPY OF THE SAID ORDER WAS PLACED ON RECORD. THE LEARNED DEPARTMENTAL REPR ESENTATIVE FAIRLY CONCEDED ITA NOS.5747 & 5748/MUM/2009 M/S.MEHTA INVESTMENTS. 2 THAT THE FACTS OF THE INSTANT GROUND WERE SIMILAR T O THOSE DECIDED BY THE TRIBUNAL IN THE CASE OF GOLDCREST CAPITAL MARKETS LTD. (SUPRA) . RESPECTFULLY FOLLOWING THE PRECEDENT, WE ALLOW THIS GROUND OF APPEAL. 4. GROUND NOS. 4 AND 5 ARE AGAINST THE CONFIRMATION OF DISALLOWANCE U/S.40(A)(IA) ON ACCOUNT OF TRANSACTION CHARGES OF RS.8,63,249 AND TRANSACTION CHARGES (F & O) OF RS.5,03,228. HERE AGAIN THE LEAR NED A.R. CONTENDED THAT SIMILAR ISSUE HAS BEEN DECIDED BY THE MUMBAI BENCH OF THE T RIBUNAL IN SEVERAL CASES INCLUDING KOTAK SECURITIES LTD. VS. ADDL.CIT [25 SOT 440 (MUM .)] . COPY OF THE SAID ORDER WAS PLACED ON RECORD. IT WAS PUT FORTH T HAT THE TRIBUNAL HAS HELD THAT SECTION 40(A)(IA) IS NOT ATTRACTED ON TRANSACTION C HARGES. THE LEARNED DEPARTMENTAL REPRESENTATIVE CANDIDLY ACCEPTED THIS POSITION IN L AW AS STATED BY THE LEARNED A.R. RESPECTFULLY FOLLOWING THE PRECEDENT, WE ALLOW THE SE TWO GROUNDS OF APPEAL. 5. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED. ASSESSMENT YEAR 2006-2007 6. GROUND NOS. 1 AND 2 ARE NOT PRESSED BY THE LEARN ED A.R. THESE, THEREFORE, STAND DISMISSED. 7. GROUND NO.3 IS AGAINST THE CONFIRMATION OF DISAL LOWANCE OF RS.29,550 ON ACCOUNT OF PENALTY PAID TO NATIONAL STOCK EXCHANGE. BOTH THE SIDES ARE IN AGREEMENT THAT THE FACTS AND CIRCUMSTANCES OF THIS GROUND IN THE INSTANT YEAR ARE MUTATIS MUTANDIS SIMILAR TO THOSE OF THE PRECEDING YEAR. FOLLOWING THE VIEW TAKEN HEREINABOVE, WE ALLOW THIS GROUND OF APPEAL. 8. GROUND NO.4 IS AGAINST THE CONFIRMATION OF DISAL LOWANCE U/S.40(A)(IA) ON ACCOUNT OF TRANSACTION CHARGES OF RS.7,03,465. HERE AGAIN BOTH THE SIDES ARE IN ITA NOS.5747 & 5748/MUM/2009 M/S.MEHTA INVESTMENTS. 3 AGREEMENT THAT THE FACTS AND CIRCUMSTANCES OF THIS GROUND IN THE INSTANT YEAR ARE IDENTICAL TO THOSE OF THE PRECEDING YEAR. IN VIEW O F DISCUSSION MADE SUPRA FOR THE EARLIER YEAR, WE ALLOW THIS GROUND OF APPEAL. 9. GROUND NO.5 IS AGAINST THE CONFIRMATION OF DISAL LOWANCE U/S.40(A)(IA) ON ACCOUNT OF LEASED LINE CHARGES OF RS.81,144. HERE A GAIN THE LEARNED A.R. STATED THAT THIS ISSUE IS COVERED IN ASSESSEES FAVOUR BY THE O RDER PASSED BY THE MUMBAI BENCH OF THE TRIBUNAL IN DCIT VS. ANGEL BROKING LTD. [3 ITR (TRIB.) 294 (MUM .)] . THE LEARNED DEPARTMENTAL REPRESENTATIVE FAIRLY CONCEDED THE FACTUAL POSITION. RESPECTFULLY FOLLOWING THE PRECEDENT, WE ALLOW THIS GROUND. 10. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED. ORDER PRONOUNCED ON THIS 18 TH DAY OF JUNE, 2010 . SD/- SD/- (VIJAY PAL RAO) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 18 TH JUNE, 2010 . DEVDAS* COPY TO : 1. THE APPELLANT. 2. THE RESPONDENTS. 3. THE CIT CONCERNED 4. THE CIT(A)-XIV, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.