D.C.I,T.CC - V / Kol., Kolkata V. M/s Salasar Stock Broking Ltd., Kolkata

ITSSA 50/KOL/2012

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 0253 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 7 month(s) 19 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 03-07-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 14-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIRINDER MEHTA
• Assessee Lawyers: K K CHAPRIA
• Section: 115JB

Judgement Text

I.T.(SS)A. NO.: 50/KOL./2012 ASSESSMENT YEAR : 2008-09 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA C BENCH, KOLKATA BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.(S.S.)A. NO.: 50/KOL./2012 ASSESSMENT YEAR : 2008-2009 DEPUTY COMMISSIONER OF INCOME TAX,................. ..........APPELLANT CENTRAL CIRCLE-V, KOLKATA, AAYAKAR BHAWAN POORVA, 3 RD FLOOR, 110, SHANTIPALLY, KOLKATA-700 107 -VS.- M/S. SALASAR STOCK BROKING LIMITED,................ ..............RESPONDENT MUKTI CHAMBER, 4A, CLIVE ROW, KOLKATA-700 001 [PAN : AADCS 8020 Q] APPEARANCES BY: SHRI VIRINDER MEHTA, CIT, D.R., FOR THE APPELLANT SHRI K.K. CHAPRIA, A.R., FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : JULY 03, 2014 DATE OF PRONOUNCING THE ORDER : JULY 03, 2014 O R D E R PER SHRI MAHAVIR SINGH, JUDICIAL MEMBER : THIS APPEAL FILED BY THE REVENUE IS ARISING OUT OF THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS), CENTRAL-1, KO LKATA IN APPEAL NO. 35/CC-V-CIT(A)C-I/KOL/11-12 DATED 28.09.2012 FOR AS SESSMENT YEAR 2008-09. 2. THE ONLY ISSUE INVOLVED IN THIS APPEAL OF REVENU E IS AGAINST THE ORDER OF LD. CIT(APPEALS) ALLOWING THE REBATE UNDER SECTION 88E OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS T HE ACT) WHILE COMPUTING THE PROFIT UNDER SECTION 115JB OF THE ACT . 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE THR OUGH THE FACTS OF THE CASE. WE FIND THAT THE ONLY ISSUE IS WHETHER TH E ASSESSEE IS ELIGIBLE FOR REBATE UNDER SECTION 88E OF THE ACT WHILE COMPUTING THE TAX LIABILITY I.T.(SS)A. NO.: 50/KOL./2012 ASSESSMENT YEAR : 2008-09 PAGE 2 OF 4 UNDER THE BOOK PROFIT PROVISIONS OF SECTION 115JB O F THE ACT. THIS ISSUE HAS BEEN DELIBERATED BY THE LD. CIT(APPEALS) VIDE P ARA 5 AS UNDER :- 5. I HAVE PERUSED THE ASSESSMENT ORDER. I HAVE ALS O CONSIDERED THE SUBMISSIONS MADE ON BEHALF OF THE AP PELLANT AND THE JUDICIAL PRONOUNCEMENTS RELIED UPON. BY AO S OWN FINDING, THE APPELLANT WAS ELIGIBLE FOR REBATE U/S 88E OF RS.3,44,09,794/- ON TAX CALCULATED UNDER NORMAL PRO VISIONS OF INCOME TAX ACT, 1961. FOR, THE AO HAS ALLOWED SU CH REBATE IN HIS ASSESSMENT ORDER WHILE COMPUTING THE TAX LIABILITY UNDER THE NORMAL PROVISIONS OF THE IT ACT . THE ONLY DISPUTE IS WHETHER THE APPELLANT IS ELIGIBLE FOR RE BATE U/S 88E FROM THE TAX LIABILITY CALCULATED U/S 115JB. I FIND THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE APPE LLANT BY THE DECISIONS OF VARIOUS COURTS INCLUDING THE HONB LE BENCH OF THE JURISDICTIONAL ITAT IN THE CASE OF ITO VS.- ADVENT STOCK BROKING LIMITED [ITA NO. 1276/KOL/2010] AND O RI FINANCE LTD., KOLKATA VS.- DEPARTMENT OF INCOME TA X [ITA NO. 387/KOL/2011]. THUS, IN VIEW OF THE FACTS OF TH E CASE, AND ALSO, THE VARIOUS JUDICIAL PRONOUNCEMENTS, I AM OF THE OPINION THAT THE AO WAS NOT JUSTIFIED IN NOT ALLOWI NG REBATE U/S 88E ON THE TAX CALCULATED ON BOOK PROFIT AS PER THE PROVISIONS OF SECTION 115JB. THE REBATE U/S 88E IS ALLOWABLE ON THE TAX CALCULATED ON BOOK PROFIT AS PER THE PRO VISIONS OF SECTION 115JB. THE AO IS DIRECTED ACCORDINGLY. GROU ND NO. 1 AND 2 IS ALLOWED. 4. LD. COUNSEL FOR THE ASSESSEE STATED THAT THIS IS SUE HAS BEEN CONSIDERED BY THE COORDINATE BENCHES OF THIS TRIBUN AL IN THE CASES OF HORIZON CAPITAL LIMITED VS.- ITO IN ITA NO. 592(BN G.)/2010; ITO VS.- ADVENT STOCK BROKING PRIVATE LIMITED IN ITA NO. 127 6/KOL/2010; ORI FINANCE LIMITED VS.- DEPARTMENT OF INCOME TAX IN I TA NO.387/KOL/2011; SK STOCK BROKING PRIVATE LIMITED VS.- DEPARTMENT O F INCOME TAX IN ITA NO. 1074/AHD./2011; TOUCHSTONE CAPITAL MARKET VS.- DEPARTMENT OF INCOME TAX IN ITA NO. 6031/MUM/2011; & DCIT VS.- M BL & CO. LIMITED IN ITA NO. 2478/DEL./2010. FURTHER, HONBLE KARNATA KA HIGH COURT HAS ALSO CONFIRMED THE DECISION OF THE TRIBUNAL IN THE CASE OF HORIZON CAPITAL LIMITED, BANGALORE IN ITA NO. 434 OF 2010 ALONGWITH MISCELLANEOUS CIVIL NO. 6629 OF 2011 VIDE ORDER DATED 24.10.2011 VIDE P ARAS 16 & 17 AS UNDER :- I.T.(SS)A. NO.: 50/KOL./2012 ASSESSMENT YEAR : 2008-09 PAGE 3 OF 4 16. THEREFORE, IT IS CLEAR THAT THE ASSESSEE IS LI ABLE TO PAY SECURITIES TRANSACTION TAX WHEN HE ENTERS INTO SECU RITIES TRANSACTION. TAX IS PAYABLE SIMULTANEOUSLY AFTER RE ALIZING THE CONSIDERATION. HOWEVER, IF THAT TRANSACTION IS INCLUDED IN THE TOTAL INCOME OF THE ASSESSEE WHERE THE TOTAL INCOME IS ASSESSED EITHER UNDER THE PROVISIONS OF THE ACT OR UNDER SECTION 115JB WHEN TAX CHARGEABLE ON SUCH INCOME IS ARRIVED AT, HE IS GIVEN THE BENEFIT OF TAX DEDUCTIO NS OF THE AMOUNT, WHICH HE HAS PAID UNDER SECTION 88E BY VIRT UE OF SECTION 87. WHEN UNDER SECTION 82A, THE ASSESSEE IS MADE LIABLE TO PAY TAX WITH AN ASSURANCE THAT IT WILL BE DEDUCTED AND 87 OF THE ACT GIVES EFFECT TO SUCH PROMISE MADE UNDER THE STATUTE. THAT IS THE REASON WHY THE WORD USED I S REBATE. THE AMOUNT PAID IS HANDED BACK TO THE ASSESSEE. IN OTHER WORDS, PAYMENT OF TAX TWICE ON THE SAME INCOME IS A VOIDED. 17. THEREFORE, THE CONTENTION THAT THIS BENEFIT IS NOT AVAILABLE TO THE ASSESSEE WHOSE TOTAL INCOME IS ASS ESSED UNDER SECTION 115JB HAS NO SUBSTANCE. IN OTHER WORD S, WHEN THE TOTAL INCOME IS ASSESSED AND TAX CHARGEABLE IS COMPUTED, IT IS FROM THAT TAX WHICH IS CHARGEABLE, THE TAX PA ID UNDER SECTION 88E IS GIVEN DEDUCTION, BY WAY OF REBATE, U NDER SECTION 87 OF THE ACT. THIS IS THE LEGISLATIVE INTE NT. THAT IS A PROMISE TO GIVE DEDUCTION OF THE TAX ALREADY PAID. THIS IS THE MODE IN WHICH TAX ALREADY PAID IS HANDED BACK A T THE TIME OF FINAL COMPUTATION. THEREFORE, THE JUDGMENT REFERRED BY THE TRIBUNAL IS STRICTLY IN ACCORDANCE WITH LAW AND DOES NOT SUFFER FROM ANY LEGAL INFIRMITY, WHICH CALLED F OR INTERFERENCE. WE DO NOT SEE ANY SUBSTANTIAL QUESTIO N OF LAW INVOLVED IN THIS APPEAL, WHICH MERITS ADMISSION. TH E APPEAL IS DISMISSED. 5. AS THE ISSUE IS SQUARELY COVERED IN FAVOUR OF TH E ASSESSEE AND AGAINST THE REVENUE BY VARIOUS JUDICIAL PRONOUNCEME NTS BY THE TRIBUNAL AS WELL AS THE JUDGMENT OF THE HONBLE KARNATAKA HI GH COURT IN THE CASE OF HORIZON CAPITAL LIMITED (SUPRA), WE CONFIRM THE ORD ER OF LD. CIT(APPEALS). 6. IN THE RESULT, THE APPEAL FILED BY THE REVE NUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD DAY OF JULY, 2014. SD/- SD/- SHAMIM YAHYA MAHAVIR SINGH (ACCOUNTANT MEMBER) (JUDICIAL M EMBER) KOLKATA, THE 3 RD DAY OF JULY, 2014 I.T.(SS)A. NO.: 50/KOL./2012 ASSESSMENT YEAR : 2008-09 PAGE 4 OF 4 COPIES TO : (1) DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-V, KOLKATA, AAYAKAR BHAWAN POORVA, 3 RD FLOOR, 110, SHANTIPALLY, KOLKATA-700 107 (2) M/S. SALASAR STOCK BROKING LIMITED, MUKTI CHAMBER, 4A, CLIVE ROW, KOLKATA-700 001 (3) CIT (4) CIT(A) (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ETC ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.