DCIT 9(2), MUMBAI V. MANSI SHARE & STOCK ADVISORS PVT.LTD., MUMBAI

ITA 6000/MUM/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 84012 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 28-10-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 26-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIJAY KUMAR BORA
• Keywords: Tax effect
• Section: 14A

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI N. K. BILLAIYA, ACCOUNTANT MEMBER ITA NO.6000/MUM/2011 (A.Y. 2008-09) DCIT-9(2) AAYAKAR BHAVAN, R.NO.218 2 ND FLOOR, M.K. ROAD MUMBAI-400 020. / VS. M/S. MANSI SHARE & STOCK ADVISORS PVT. LTD. SHOP NO.5 SHANTINATH APARTMENT, OPP. CHAFEKAR GYM, BORIVALI(W) MUMBAI-400 092. ( ! / // / APPELLANT) ( '# ! / RESPONDENT) P.A. NO.AADCM 6645 D ! $ % $ % $ % $ % /APPELLANT BY : SHRI VIJAY KUMAR BORA '# ! $ % $ % $ % $ % /RESPONDENT BY : SHRI HIRO R AI $ &'( / / / / DATE OF HEARING : 28.10.2014 )*+ $ &'( / DATE OF PRONOUNCEMENT : 28 .10.2014 ,- ,- ,- ,- / / / / O R D E R PER JOGINDER SINGH (JM) : THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 21/6/2011 OF THE LD. FIRST APPELLATE AUTHORITY ON T HE GROUND WHETHER THE LD. CIT(A) IS CORRECT IN RESTRICTING THE ADDITI ON OF RS.29,10,393/- TO RS.36,700/- U/S. 14A R.W. RULE 8D OF THE RULES ACCE PTING THE CLAIM OF THE ASSESSEE THAT THE INVESTMENT WERE ONLY RS.1000/ - WHEREAS THE ITA NO.6000/MUM/2011 2 PRIMARY BUSINESS OF THE ASSESSEE IS TRADING IN SHA RES AND SECURITIES AND IN THE BALANCE SHEET THE TRADE INVESTMENT IN SH ARES HAVE BEEN SHOWN TO THE TUNE OF RS.3,35,91,250/- AS ON 31/3/20 08 IGNORING THE DECISION OF THE SPECIAL BENCH IN THE CASE OF CHEMINVEST LTD. VS. I TO (124 TTJ 577) . 2. AT THE TIME OF HEARING THE LD. DR SHRI VIJAY KUMA R BORA DEFENDED THE CONCLUSION DRAWN IN THE ASSESSMENT ORD ER WHEREAS SHRI HIRO RAI LD. COUNSEL FOR THE ASSESSEE DEFENDED THE CONCLUSION DRAWN IN THE IMPUGNED ORDER BY FURTHER SUBMITTING THAT EVEN THE ASSESSEE PAID SECURITY TRANSACTION TAX AS THE ASSESSEE IS ELIGIBL E TO RELIEF U/S. 88E OF THE ACT. 2.1 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL AVAILABLE ON RECORD. SO FAR AS THE ISSUE O F TAX EFFECT BELOW MONETARY LIMIT IS CONCERNED THE ASSESSEE IS FORTIFI ED BY THE DECISION OF THE TRIBUNAL IN THE CASE OF SHRI KULDEEP GANESH HA KE (ITA NO.4284/M/2013) THE RELEVANT PORTION OF THE SAME IS REPRODUCED HEREUNDER:- 3. WE HAVE PERUSED AND CONSIDERED THE MATERIAL AVA ILABLE ON RECORD. SINCE THE TAX EFFECT IN THE PRESENT APPE AL IS BELOW PRESCRIBED LIMIT, THEREFORE, WE ARE OF THE VIEW THA T THE APPEAL OF THE REVENUE IS NOT MAINTAINABLE. THE CENT RAL BOARD OF DIRECT TAXES (CBDT) VIDE INSTRUCTION NO. 5 DATED 10/7/2014 HAS PRESCRIBED THE MONETARY LIMIT FOR FIL ING THE APPEAL BY THE DEPARTMENT WHERE TAX EFFECT IS LESS T HAN RS.4.00 LACS. THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF MADHUKAR INAMDAR (185 TAXMANN. 101) HAS HELD THAT CBDT CIRCULAR ARE APPLICABLE WHERE THE APPEALS ARE PENDI NG AND NOT ONLY TO THE APPEAL WHICH ARE TO BE FILED AFTER THE CIRCULAR ITA NO.6000/MUM/2011 3 WAS ISSUED. IN VIEW OF THE AFOREMENTIONED INSTRUCTI ONS OF THE CBDT AND SINCE THE TAX EFFECT IN THE APPEAL OF THE REVENUE IS BELOW THE PRESCRIBED LIMIT, THEREFORE, T HE APPEAL OF THE REVENUE IS NOT MAINTAINABLE. OUR VIEW IS FUR THER FORTIFIED BY THE DECISION OF H BENCH IN ITO VS. SURENDERMAL R. LODHA (ITA NO.1628/MUM/11 ASSESSMENT YEAR 2004-0 5 ORDER DATED 25/8/2014) , CONSEQUENTLY, THIS APPEAL OF THE REVENUE IS DISMISSED. 2.1 EVEN OTHERWISE THERE IS UNCONTROVERTED FINDING IN PARA 4.1 OF THE ORDER OF LD. CIT(A) WHICH IS REPRODUCED HEREUND ER :- 4.1 IT IS OBSERVED THAT EVEN AFTER AFFECTING DISAL LOWANCE, BY AUTOMATICALLY APPLYING RULE 8D, THE TAX PAYABLE CAME TO RS.10,40,413/- AND SO THE APPELLANT WAS CLEARLY ENT ITLED TO REBATE U/S. 88E, WHICH THE ASSESSING OFFICER FAILED TO PROVIDE. IT IS OBVIOUS NO DEMAND SHOULD HAVE BEEN R AISED IN THIS CASE EVEN AFTER AFFECTING DISALLOWANCE U/S. 14 A R.W. RULE 8D AS SUFFICIENT REBATE WAS AVAILABLE. THIS GR OUND OF THE APPELLANT IS ALLOWED. 2.2 IN VIEW OF THE ABOVE UNCONTROVERTED FINDING THE APPEAL OF THE REVENUE IS NOT MAINTAINABLE. THEREFORE, IT IS DISMI SSED. 3. FINALLY, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. DR AT THE CONCLUSION OF THE HEARING ON 28 TH DAY OF OCTOBER, 2014 . ,- $ )*+ .,/ 28.10.2014 * $ 6 SD/ - SD/- ( N.K. BILLAIYA ) (JOGINDER SINGH) ( ,7 ( ,7 ( ,7 ( ,7 / ACCOUNTANT MEMBER ,7 ,7 ,7 ,7 / JUDICIAL MEMBER MUMBAI; ., DATED : 28 TH OCT. 2014. ../ JV, SR.PS . ITA NO.6000/MUM/2011 4 ,- $ '&8 98+& ,- $ '&8 98+& ,- $ '&8 98+& ,- $ '&8 98+&/ COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT 2. '# ! / THE RESPONDENT. 3. : ( ) / THE CIT, MUMBAI. 4. : / CIT(A)-13, MUMBAI 5. 8=6 '& , , / DR, ITAT, MUMBAI 6. 6> ? / GUARD FILE. ,- ,- ,- ,- / BY ORDER, #8& '& //TRUE COPY// @ @@ @/ // /A B A B A B A B (DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI