The ACIT, Ahmedabad Circle-3, Ahmedabad V. Navkar Share & Stock Brokers Pvt. Ltd., Ahmedabad

MA 147/AHD/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7457 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-01-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 05-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C K MISHRA
• Assessee Lawyers: ANKIT TALSANIA
• Keywords: Depreciation
• Section: 154

Judgement Text

-1- IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'B' BEFORE SHRI D K TYAGI - JM AND SHRI A K GARODIA - AM M A NO.147/AHD/2011 [ARISING OUT OF ITA NO.3247/AHD/2010 (ASSESSMENT YEAR:-2007-08) THE ASST. COMMISSIONER OF INCOME-TAX, CIRCLE-3, AHMEDABAD V/S M/S NAVKAR SHARE & STOCK BROKER PVT. LTD., 3, VIMLA COMPLEX, OLD SHARDA MANDIR ROAD, ELLIS- BRIDGE, LAW GARDEN, AHMEDABAD PAN: AABCN 0385 P [APPLICANT] [ORIGINAL APPELLANT] [RESPONDENT] [ORIGINAL RESPONDENT] REVENUE BY :- SHRI C K MISHRA, SR. DR ASSESSEE BY:- SHRI ANKIT TALSANIA, AR DATE OF HEARING:- 06-01-2012 DATE OF PRONOUNCEMENT:- 13-01-2012 O R D E R PER D K TYAGI (JM) :- BY THIS MISCELLANEOUS APPLICATION, THE REVENUE HAS REQUESTED FOR RECALLING OF THE ORDER DA TED 08-03- 2011 PASSED BY THE ITAT IN ITA.NO.3247/AHD/2010 FOR THE AY 2007-08. 2. IN THE MISCELLANEOUS APPLICATION, THE REVENUE HA S SUBMITTED AS UNDER: 1. THE APPELLANT HAS FILED APPEAL BEFORE THE HON'BL E ITAT AGAINST THE ORDER PASSED BY THE ID. CIT(A) DATED 11/10/2010 ON THE GROUND THAT THE ID. CIT(A) ERRED IN LAW AND ON FACT S IN DELETING 2 THE ADDITION OF RS.45,48,875 MADE ON ACCOUNT OF DEP RECIATION CLAIM ON STOCK EXCHANGE MEMBERSHIP CARD. 2. SUBSEQUENTLY, THE ID. CIT(A) HAS PASSED ORDER U/ S. 154 OF THE ACT ON 05/01/2011 IN WHICH THE ADDITION OF RS.45,48 ,875 MADE ON ACCOUNT OF DISALLOWANCE OF DEPRECIATION ON STOCK EXCHANGE CARD HAS BEEN CONFIRMED AND APPEAL FILED BY THE ASS ESSEE HAS BEEN DISMISSED. 3. IN VIEW OF THE ABOVE SUBSEQUENT ORDER OF THE ID. CIT(A), THE APPEAL FILED BY THE REVENUE AGAINST THE ORIGINAL OR DER OF THE ID. CIT(A) DATED 11/10/2010 DELETING THE ADDITION MADE ON ACCOUNT OF DEPRECIATION ON STOCK EXCHANGE CARD BECOMES INFR UCTUOUS. IT IS ALSO LEARNT THAT THE RESPONDENT ASSESSEE HAS ALS O FILED APPEAL BEFORE THE HON'BLE ITAT AGAINST THE ORDER OF THE ID . CIT(A) PASSED U/S. 154 OF THE ACT AND THE DECISION ON THE SAID APPEAL IS PENDING. 4. THE DECISION OF HON'BLE SUPREME COURT RELIED UPO N BY THE HON'BLE ITAT IN THE CASE OF TECHNO SHARES & STOCKS LTD. 327 ITR 323 WHILE CONFIRMING THE DECISION OF THE ID. CI T(A) DELETING THE ADDITION ON ACCOUNT OF STOCK EXCHANGE CARD IN THE ORIGINAL ORDER DATED 11/10/2010 IS NOT APPLICABLE T O THE ASSESSEE'S CASE BECAUSE THE ASSESSEE DID NOT HAVE A NY STOCK EXCHANGE CARD AS THE SAME WAS CONVERTED INTO SHARES . 5. THE HON'BLE SUPREME COURT IN THE ABOVE REFERRED CASE HAVE CLEARLY STATED THAT THE DECISION APPLIES ONLY IN RE SPECT OF CARD HOLDERS OF BOMBAY STOCK EXCHANGE AND THAT TOO ONLY FOR THE A.Y. 1999-00 TO 2002-03. IN THE CASE OF RESPONDENT ASSESSEE, THE ASSESSMENT YEAR IS A.Y. 2007-08 AND HENCE THE D ECISION OF THE HON'BLE SUPREME COURT IN THE TECHNO SHARES & ST OCKS LTD. IS CLEARLY NOT APPLICABLE. 6. IT IS, THEREFORE, FELT THAT THERE IS AN APPARENT MISTAKE IN THE ORDER OF THE HON'BLE ITAT IN ITA NO. 3247/AHD/2010 DATED 08/03/2011 BECAUSE THE ORDER OF ID. CIT(A) AGAINST WHICH THE APPEAL IS FILED BY THE REVENUE HAS BEEN AMENDED BY PASSING ORDER U/S. 154 OF THE ACT AND THEREFORE, THE APPEAL BECOMES INFRUCTUOUS. MOREOVER, THERE IS MISTAKE IN FOLLOWIN G THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF TE CHNO 3 SHARES & STOCKS LTD. BECAUSE THE RESPONDENT ASSESSE E HAS CLAIMED THE DEPRECIATION ON STOCK EXCHANGE CARD WHE REAS NO SUCH ASSETS WAS IN EXISTENCE IN THE RELEVANT ASSESS MENT YEAR BECAUSE THE SAID ASSETS HAS BEEN CONVERTED INTO SHA RES. THE HON'BLE SUPREME COURT HAS ALSO CLEARLY STATED THAT THE DECISION WILL APPLIES ONLY FOR THE A.Y. 1999-00 TO A.Y. 2002 -03 AND NOT TO THE SUBSEQUENT YEARS. PRAYER 1. THE HON'BLE ITAT MAY CONSIDER THE APPLICABLE U/S . 254(2) OF THE ACT. 2. THE HON'BLE ITAT MAY RECALL THE ORDER PASSED ON 08/03/2011 AND SET-ASIDE THE ORDER AND RECTIFY THE SAME AS STA TED ABOVE. THE LEARNED DR ACCORDINGLY PRAYED THAT THE MATTER M AY BE RECALLED. 3. AFTER HEARING BOTH THE PARTIES AND PERUSING THE RECORDS, WE FIND THAT THE REVENUE WANTS US TO RECALL OUR ORDER ON THE GROUND THAT WE HAVE WRONGLY FOLLOWED THE DECISION OF THE H ONBLE APEX COURT IN THE CASE OF TECHNO SHARES & STOCKS LTD. 32 7 ITR 323. ACCORDING TO THE REVENUE, THAT DECISION APPLIES ONL Y IN RESPECT OF CLAIM OF DEPRECIATION ON STOCK EXCHANGE MEMBERSH IP CARD AND SINCE IN ASSESSEES CASE, STOCK EXCHANGE CARD W AS CONVERTED INTO SHARES, THE RATIO AS LAID DOWN IN THAT CASE IS NOT APPLICABLE. AFTER HEARING BOTH THE PARTIES AND PERUSING THE ASS ESSMENT ORDER AND THE ORDER OF THE LEARNED CIT(A), WE FIND THAT N O WHERE THE FACT THAT THE ASSESSEE HAS CONVERTED ITS STOCK EXCH ANGE CARD INTO SHARES, HAS BEEN MENTIONED. ON THE OTHER HAND, WHIL E FILING THE APPEAL BEFORE THE TRIBUNAL, THE GROUND TAKEN BY THE REVENUE WAS AS UNDER:- 4 THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN D ELETING THE ADDITION OF RS.45,48,875/- MADE ON ACCOUNT OF DEPRECIATION C LAIM ON STOCK EXCHANGE MEMBERSHIP CARD. IT IS CLEAR FROM THE ABOVE GROUND TAKEN BY THE REVE NUE THAT THE ISSUE BEFORE THE TRIBUNAL WAS CLAIM OF DEPRECIATION ON STOCK EXCHANGE MEMBERSHIP CARD ONLY AND THEREFORE, THE TR IBUNAL HAS RIGHTLY DISMISSED THE APPEAL OF THE REVENUE BY FOLL OWING THE RATIO LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF TECHNO SHARES & STOCKS LTD. (SUPRA). 4 WE FURTHER FIND THAT THE ORDER PASSED BY THE LEAR NED CIT(A) U/S 154 OF THE ACT DATED 05-01-2011 NOW RELIED UPON BY THE REVENUE WAS NOT SUBJECT MATTER OF APPEAL BEFORE US AND HENCE WILL NOT BE OF ANY HELP TO THE REVENUE. 5 IN VIEW OF ABOVE, WE FIND NO MERIT IN THE MISCELL ANEOUS APPLICATION FILED BY THE REVENUE AND THE SAME IS HE REBY DISMISSED. ORDER PRONOUNCED IN THE COURT TODAY ON 13-01-2012 SD/- SD/- (A K GARODIA) ACCOUNTANT MEMBER (D K TYAGI) JUDICIAL MEMBER DATE : 13-01-2012 COPY OF THE ORDER FORWARDED TO: 5 1. M/S NAVKAR SHARE & STOCK BROKER PVT. LTD., 3, VI MLA COMPLEX, OLD SHARDA MANDIR ROAD, ELLIS-BRIDGE, LAW GARDEN, AHMEDABAD 2. THE ASST. COMMISSIONER OF INCOME-TAX, CIRCLE-3, AHMEDABAD 3. CIT CONCERNED 4. CIT(A)-XVI, AHMEDABAD 5. DR, ITAT, AHMEDABAD BENCH-B, AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR ITAT, AHMEDABAD