DCIT 4(1), MUMBAI V. DINDAYAL BIYANI STOCK BROKERS LTD, MUMBAI

ITA 5844/MUM/2013

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0698 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-05-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2007-2008
• Appeal Filed On: 30-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LOVE KUMAR
• Keywords: Reassessment proceedings
• Section: 115JB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ' D ' BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI R.C. SHARMA , ACCOUNTANT MEMBER ITA NO. 5844/MUM/2013 (ASSESSMENT YEAR: 2007 - 08 ) D C I T - 4(1) VS. M/S. DINDAYAL BIYANI STOCK ROOM NO. 640, 6TH FLOOR AYAKAR BHAVAN, M.K. ROAD MUMBAI 400020 BROKERS LTD. 417, STOCK EXCHANGE TOWER DALAL STREET, FORT, MUMBAI 400023 PAN - AAACD5066E APPELLANT RESPONDENT APPELLANT BY: SHRI LOVE KUMAR RESPONDENT BY: SHRI J.P. BAIRAGRA DATE OF HEARING: 28.05. 2015 DATE OF PRONOUNCEMENT: 28.05.2015 O R D E R PER D. MANMOHAN, V.P. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER PASSED BY CIT(A) - 8, MUMBAI AND IT PERTAINS TO A.Y. 2007 - 08. 2. FOLLOWING GROUNDS WERE URGED BEFORE US: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE FACT AND IN LAW, THE LD. CIT(A) ERRED IN ALLOWING THE APPEAL OF THE ASSESSEE RELYING ON THE DECISION OF THE KARNATAKA HIGH COURT IN THE CASE OF M/S. HORIZON CAPITAL LTD. WHICH IS NOT THE JURISDICTIONAL ONE. 2. O N THE FACTS AND IN THE CIRCUMSTANCES OF THE FACT AND IN LAW, THE LD. CIT(A) ERRED IN ALLOWING REBATE U/S 88E WHICH SPECIFICALLY DEALS WITH MINIMUM ALTERNATIVE TAX PAYABLE ONLY IN CASES WHERE TAX OTHERWISE PAYABLE IS BELOW 10% DUE TO OPERATION OF ALL OTHER PROVISIONS OF ACT, AND SUCH ALL OTHER PROVISIONS INCLUDES 88E OF THE I.T. ACT. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE IMPUGNED ORDER OF THE LD. CIT(A) IS CONTRARY TO LAW AND CONSEQUENTLY MERITS TO BE SET ASIDE THAT OF THE ASSE SSING OFFICER BE RESTORED. ITA NO. 5844/MUM/2013 M/S. DINDAYAL BIYANI STOCK BROKERS LTD. 2 3. FACTS NECESSARY FOR DISPOSAL OF THE APPEAL ARE STATED IN BRIEF. ASSESSEE - COMPANY IS A MEMBER OF THE STOCK EXCHANGE AND ENGAGED IN THE BUSINESS OF SHARE AND STOCK BROKING AND TRADING. ASSESSEE - COMPANY WAS DEALING IN SHARES AND WAS AL LOWED REBATE UNDER SECTION 88E OF THE ACT. AFTER ALLOWANCE OF REBATE UNDER SECTION 88E, THE NET TAX PAYABLE WAS DETERMINED AT ` 9,17,971/ - UNDER THE NORMAL PROVISIONS OF THE ACT WHEREAS THE TAX LIABILITY OF THE ASSESSEE UNDER SECTION 115JB WORKS OUT TO ` 18,05,193/ - . 4. THE AO, DURING THE COURSE OF REASSESSMENT PROCEEDINGS, WAS OF THE VIEW THAT THE REBATE UNDER SECTION 88E IS NOT DEDUCTIBLE FROM THE TAX LIABILITY COMPUTED UNDER THE PROVISIONS OF SECTION 115JB OF THE ACT AND ACCORDINGLY COMPLETED THE ASSESSMEN T. 5. ON AN APPEAL FILED BY THE ASSESSEE THE LEARNED CIT(A) OBSERVED THAT THE ISSUE STANDS COVERED BY THE DECISION OF THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF M/S. HORIZON CAPITAL LTD. 245 CTR 601 AND ACCORDINGLY ALLOWED THE PLEA OF THE ASSESSEE. AO WA S DIRECTED TO ALLOW DEDUCTION TO THE ASSESSEE UNDER SECTION 88E OF THE ACT WHILE COMPUTING TAX LIABILITY UNDER SECTION 115JB OF THE ACT. 6. AGGRIEVED, REVENUE IS IN APPEAL BEFORE US. AT THE TIME OF HEARING THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT T HE ISSUE STANDS COVERED BY VARIOUS DECISIONS OF THE TRIBUNAL AS WELL AS THE DECISIONS OF THE HON'BLE KARNATAKA HIGH COURT AND HON'BLE DELHI HIGH COURT (SEE PAPER BOOK FROM PAGES 13 TO 35) AND IN THE ABSENCE OF ANY CONTRARY DECISION ON THE ABOVE, THE VIEW T AKEN BY THE LEARNED CIT(A) DESERVES TO BE UPHELD. 7. THE LEARNED D.R. COULD NOT PLACE ANY CONTRARY DECISION ON THIS POINT. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY PERUSED THE RECORD. THE ITAT MUMBAI BENCHES HAVE CONSISTENTLY TAKEN A VIEW THAT REBATE UNDER SECTION 88E OF THE ACT CAN BE CLAIMED BY THE ASSESSEE WHILE COMPUTING TAX LIABILITY UNDER SECTION 115JB OF THE ACT (DCIT V S. M/S. ARCHADIA SHARE AND STOCK BROKERS P. LTD., ITA NO. 6500/MUM/2013 DATED 26.03.2015 & ACIT VS. M/S. VISARIA SECURITIES P. LTD., ITA NO. 2271/MUM/2013 DATED 10.09.2013). ITA NO. 5844/MUM/2013 M/S. DINDAYAL BIYANI STOCK BROKERS LTD. 3 HAVING REGARD TO THE CIRCUMSTANCES OF THE CASE WE UPHOLD THE ORDER PASSED BY THE CIT(A) AND DISMISS THE APPEAL FILED BY THE REVENUE. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH MAY, 2015. SD/ - SD/ - ( R.C. SHARMA ) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATED: 28 TH MAY, 2015 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 8 , MUMBAI 4. THE CIT 4 , MUMBAI CITY 5. THE DR, D BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.