The DCIT, Circle-5, Ahmedabad V. Nikkie Stock Brokers Pvt.Ltd., Ahmedabad

ITA 850/AHD/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 80265 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 4 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 25-07-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 17-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Assessee Lawyers: K H SHAH
• Keywords: Depreciation; Tax effect
• Section: 143(3)

Judgement Text

, , , , , , , , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD , !' # $ $ $ $ %, # BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER $./ I.T.A. NO.850/AHD/2011 ( ( )( ( )( ( )( ( )( / / / / ASSESSMENT YEAR : 2004-05) DCIT CIRCLE-5 AHMEDABAD / VS. NIKKIE STOCK BROKERS PVT.LTD. 804, SHITIRATNA COMPLEX NR.PANCHVATI CIRCLE E.B., AHMEDABAD #* !' $./+, $./ PAN/GIR NO. : AAACN 7896 C ( *- / // / APPELLANT ) .. ( ./*- / RESPONDENT ) *- 0 ! / APPELLANT BY : SHRI DINESH SINGH, SR.DR ./*- 1 0 ! / RESPONDENT BY : SHRI K.H. SHAH, A.R. 2 1 ' / / / / DATE OF HEARING 25/07/2014 34) 1 ' / DATE OF PRONOUNCEMENT 08/08/2014 !5 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST TH E ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-XI, AHMEDABA D (CIT(A) IN SHORT) DATED 03/01/2011 PERTAINING TO ASSESSMENT Y EAR (AY) 2004-05. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APP EAL:- 1. THE LD.COMMISSIONER OF INCOME TAX (A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE DISALLOWANCE OF DEPRECIATION OF ` 2,45,250/-. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME TAX (A) OUGHT TO HAVE UPHELD THE ORDER OF TH E ASSESSING OFFICER. ITA NO. 850/AHD /2011 DCIT VS. NIKKIE STOCK BROKERS PVT.LTD. ASST.YEAR 2004-05 - 2 - 3. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE LD.C OMMISSIONER OF INCOME TAX (A) MAY BE SET-ASIDE AND THAT OF THE ASS ESSING OFFICER BE RESTORED. 2. BRIEFLY STATED FACTS ARE THAT THE CASE OF THE AS SESSEE WAS REOPENED BY ISSUING REQUISITE NOTICE AND THE ASSESSMENT U/S. 143(3) R.W.S.147 OF THE INCOME TAX ACT,1961 (HEREINAFTER REFERRED TO AS TH E ACT) WAS FRAMED VIDE ORDER DATED 02.11.2009, THEREBY THE ASSESSING OFFICER (AO IN SH ORT) MADE DISALLOWANCE OF RS.2,45,250/- @ 25% ON STOCK E XCHANGE MEMBERSHIP CARD WAS DISALLOWED AND THE SAME WAS ADD ED TO THE INCOME OF THE ASSESSEE. NOW, THE REVENUE IS IN APPEAL BEF ORE US. 3. THE LD.SR.DR SHRI DINESH SINGH VEHEMENTLY ARGUE D THAT THE LD.CIT(A) WAS NOT JUSTIFIED IN DELETING THE ADDITIO N. 3.1. ON THE CONTRARY, LD.COUNSEL FOR THE ASSESSEE S UBMITTED THAT FIRSTLY THE APPEAL FILED BY THE REVENUE IS TO BE DISMISSED ON ACCOUNT OF LOW TAX EFFECT. IN SUPPORT OF THIS CONTENTION, HE PLACED R ELIANCE ON THE JUDGEMENT OF HONBLE GUJARAT HIGH COURT RENDERED IN THE CASE OF CIT VS. SURESHCHANDRA DURGAPRASAD KHATOD (HUF) IN TAX APPEA L NO.1404 OF 2010 DATED 24/08/2012 :: (2012) 253 CTR 492 (GUJ.) . THE LD.COUNSEL FOR THE ASSESSEE ALSO PLACED RELIANCE ON THE DECISI ON OF THIS TRIBUNAL (ITAT B BENCH AHMEDABAD) RENDERED IN THE CASE OF EDELWEISS STOCK BROKING LTD. VS. ADDL.CIT IN ITA NO.1168/AHD/2011 F OR AY 2006-07, DATED 11/07/2014. ITA NO. 850/AHD /2011 DCIT VS. NIKKIE STOCK BROKERS PVT.LTD. ASST.YEAR 2004-05 - 3 - 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS THE JUDGEMENT RELIED UPON BY THE LD.COUN SEL FOR THE ASSESSEE. WE FIND THAT THE ADDITION IS MADE AMOUNTING TO RS.2 ,45,250/-, ADMITTEDLY, THE TAX EFFECT IS LOWER THAN THE TAX PR ESCRIBED BY THE CBDT INSTRUCTION NO.3 OF 2011, DATED 9 TH FEBRUARY-2011. SINCE THE REVENUE HAS NOT PLACED ANY MATERIAL ON RECORD SUGGESTING TH AT THE TAX EFFECT IS HIGHER THAN THE TAX EFFECT PRESCRIBED UNDER THE CBD T INSTRUCTION NO.3 OF 2011 AND ALSO NO CONTRARY JUDGEMENT HAS BEEN PLACED ON RECORD, THEREFORE, THE APPEAL OF THE REVENUE FAILS. MOREOV ER, WE ALSO FIND THAT IN THE IDENTICAL FACTS, THE COORDINATE BENCH OF THI S TRIBUNAL IN ITA NO.1168/AHD/2011, FOR AY 2006-07 VIDE ORDER DATED 1 1/07/2014(SUPRA) HAS ALLOWED THE CLAIM OF THE ASSESSEE IN RESPECT OF DEPRECIATION ON STOCK EXCHANGE MEMBERSHIP CARD. THEREFORE, ON MERIT ALSO, THE APPEAL OF THE REVENUE FAILS. THUS, THIS GROUND OF REVENUES APPE AL IS REJECTED. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN COURT ON THE DATE MENTIONED HER EINABOVE AT CAPTION PAGE SD/- SD/- ( ) ( %) !' # # ( ANIL CHATURVEDI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 08/08/2014 8 .., .../ T.C. NAIR, SR. PS ITA NO. 850/AHD /2011 DCIT VS. NIKKIE STOCK BROKERS PVT.LTD. ASST.YEAR 2004-05 - 4 - !5 1 .9 :!9) !5 1 .9 :!9) !5 1 .9 :!9) !5 1 .9 :!9)/ COPY OF THE ORDER FORWARDED TO : 1. *- / THE APPELLANT 2. ./*- / THE RESPONDENT. 3. $$ ; / CONCERNED CIT 4. ;() / THE CIT(A)-XI, AHMEDABAD 5. 9%< . , , / DR, ITAT, AHMEDABAD 6. <=( >2 / GUARD FILE. !5 !5 !5 !5 / BY ORDER, /9 . //TRUE COPY// ? ?? ?/ // / $+ $+ $+ $+ ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 4.8.14 (DICTATION-PAD 5-PA GES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 5.8.14 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH FAIR ORDER PLACED BEFORE OTHER MEMBER 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8.8.14 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ..8.8.14 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER