DCIT 4(1), MUMBAI V. ARCADIA SHARE & STOCK BROKERS P.LTD, MUMBAI

ITA 6500/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88650 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-03-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 05-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R N DSOUZA
• Assessee Lawyers: AJAY R SINGH
• Section: 143(3); 115JB; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI D.MANMOHAN ( VP ) & SHRI SANJAY ARORA (AM) I.T.A. NO. 6500 /MUM/ 20 13 (ASSESSMENT YEAR : 200 7 - 0 8 ) DCIT 4(1) ROOM NO. 640 6 TH FLOOR AAYAKAR BHAVAN M.K. ROAD MUMBAI - 400 020. VS. M/S. ARCA DIA SHARE & STOCK BROKERS PVT. LTD. 210, 2 ND FLOOR TULSIANI CHAMBERS NARIMAN POINT MUMBAI - 400 021. PAN/GIR NO . AAACA4562G ( APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI AJAY R. SINGH DEPARTMENT BY : SHRI R.N.DSOUZA DATE OF HEARING : 26 .3 . 201 5 DATE OF PRONOUNCEMENT : 26 . 3 . 201 5 O R D E R PER D. MANMOHAN (VP ) : - THIS IS AN APPEAL FILED AT THE INSTANCE OF THE REVENUE AND IT PERTAINS TO A.Y. 2007 - 08. FOLLOWING GR OUNDS WERE URGED BY THE REVENUE : - 1 'ON THE FACTS AND IN THE CIRCUMSTANC ES OF THE CASE 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. 'ON THE FACTS AND IN THE CIRCUMST ANCE S OF THE CASE AND IN L AW, THE LD.CIT(A) ERRED IN ALLOWING REBATE U/S 88E OF THE INCOME TAX ACT OVER CLEAR WORDS OF SECTION 115JB WHICH SPECIFICALLY DEALS WITH MINIMUM ALTERNATIVE TAX PAYABLE ONLY IN CASES WHERE TAX OTHERWISE PAYABLE IS BELOW 10% DUE T O OPERATION OF ALL OTHER PROVISIONS OF THE ACT, AND SUCH ALL PROVISIONS INCLUDES SECTION 88E OF THE I. T. ACT.' M/S. ARCADIA SHARE & STOCK BROKERS PVT. LTD. 2 3 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE IMPUGNED ORDER OF THE LD.CIT(A) IS CONTRARY TO LAW AND CONSEQUENTLY MER ITS TO BE SET ASIDE THAT OF THE ASSESSING OFFICER BE RESTORED.' 2. FACTS IN SHORT ARE THAT THE ASSESSEE - COMPANY WAS ENGAGED IN THE BUSINESS OF SHARE AND STOCK BROKING. FOR THE ASSESSMENT YEAR UNDER CONSIDERATION IT DECLARED TOTAL INCOME AT RS. 19 CRORES. THOUGH THE ASSESSMENT WAS COMPLETED U/S. 143(3) OF THE ACT , THE SAME WAS REOPENED BY ISSUING NOTICE U/S. 148 OF THE ACT , WHEREIN THE AO NOTICED THAT THE ASSESSEE - COMPANY WAS ALLOWED REBATE U/S. 88E OF THE ACT TO THE TUNE OF RS. 6 CRORES AND AFTER ALLOWING REBATE , THE NET TAX PAYABLE WAS DETERMINED AT RS. NIL UNDER T HE NORMAL PROVISIONS OF THE ACT, W HEREAS TAX LIABILITY OF THE ASSESSEE U/S. 115JB OF THE ACT WORKS OUT TO RS. 2, 14,67,162/ - . ACCORDING TO THE AO THE TAX LIABILITY U/S. 115JB OF THE ACT WAS MORE A S COMPARED TO TAX UNDER NORMAL PROVISIONS, AFTER ALLOWANCE OF REBATE U/S. 88E OF THE ACT. ACCORDINGLY TAX PAYABLE U/S. 115JB WAS WORKED OUT AND REBATE U/S. 88E WAS NOT ALLOWED FROM TAX LIABILITY U/S. 115JB OF THE ACT. 3 . ON AN APPEAL FILED BY THE ASSESSE E THE TRIBUNAL OBSERVED THAT THE ISSUE STANDS COVERED BY THE DECISION OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. HORIZON CAPITAL LTD. (245 CTR 601) AND ALSO REFERRED TO THE DECISION OF ITAT IN ASSESSEES OWN CASE FOR A.Y. 2008 - 09 (ITA NO. 1515/ MUM/2012 DATED 20.3.2013). LD. CIT(A) ACCORDINGLY DIRECTED THE AO TO COMPUTE THE TAX LIABILITY U/S. 115JB OF THE ACT AS PER THE DECISION OF THE ITAT (SUPRA). 4 . AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE US. LD. DR ADMITTED THAT THE ISSUE STANDS SQUARELY COVERED BY THE AFORESAID DECISION. HOWEVER, IT WAS SUBMITTED THAT THE REVENUE HAS NOT ACCEPTED THE VIEW TAKEN BY THE ITAT. M/S. ARCADIA SHARE & STOCK BROKERS PVT. LTD. 3 5 . WE HAVE HEARD LD. COUNSEL FOR THE ASSESSEE AND PERUSED THE RECORD. THE VIEW TAKEN BY THE LD. CIT(A) IS CONSISTENT WITH THE VIEW TAKEN BY THE ITAT IN ASSESSEES OWN CASE IN EARLIER YEAR. SUCH BEING THE CASE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER PASSED BY LD. CIT(A). THEREFORE , THE APPEAL FILED BY THE REVENUE IS DISMISSED. PRONOUNCED ACCORDINGLY. SD/ - (SANJAY ARORA ) ACCOUNTANT MEMBER SD/ - (D. MANMOHAN ) VICE PRESIDENT MUMBAI ; DATED : 26 / 3 /20 15 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY O RDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) ITAT, MUMBAI PS