M/s. Millennium Stock Broking (P) Limited, Kolkata V. DCIT, Circle - 6, Kolkata, Kolkata

MA 202/KOL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 9139 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 27-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income

Judgement Text

M.A. NOS. 202 & 203/KOL/2019 ( IN ITA NOS. 670 & 676/KOL/2011) ASSESS MENT YEARS: 2006-2007 & 2007-2008 MILLENNIUM STOCK BROKING (P) LIMITED 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT AND SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER M.A. NOS. 202 & 203/KOL/2019 (ARISING OUT OF I.T.A. NOS. 670 & 676/KOL/2011) ASSESSMENT YEARS: 2006-2007 & 2007-2008 MILLENNIUM STOCK BROKING (P) LIMITED,.............. ........................APPLICANT 1, R.N. MUKHERJEE ROAD, 1 ST FLOOR, ROOM NO. 9, KOLKATA-700001 [PAN: AACCM2853Q] -VS.- DEPUTY COMMISSIONER OF INCOME TAX,................. .....................RESPONDENT CIRCLE-6, KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 APPEARANCES BY: SHRI J.P. KHAITAN, ADVOCATE, FOR THE APPLICANT SHRI DHRUBOJYOTI ROY, JCIT , FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : JANUARY 10, 2020 DATE OF PRONOUNCING THE ORDER : JANUARY 10, 2020 O R D E R PER SHRI P.M. JAGTAP, VICE-PRESIDENT (KOLKATA ZONE) :- BY THESE MISCELLANEOUS APPLICATIONS, THE ASSESSEE I S SEEKING RECTIFICATION OF THE MISTAKE ALLEGED TO HAVE CREPT IN THE COMMON ORDER OF THE TRIBUNAL DATED SEPTEMBER 29, 2015 PASSED IN ITA NOS. 670 & 676/KOL/2011. 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS SUBMITTED BY THE ASSESSEE IN THE PRESENT MISCELLANEOUS APPLICATIONS AND FURTHER REIT ERATED BY THE LD. COUNSEL FOR THE ASSESSEE AT THE TIME OF HEARING BEF ORE THE TRIBUNAL, THE COMMON ISSUE RAISED BY THE ASSEESSEE IN GROUND NO.3 OF ITS APPEAL FOR M.A. NOS. 202 & 203/KOL/2019 ( IN ITA NOS. 670 & 676/KOL/2011) ASSESS MENT YEARS: 2006-2007 & 2007-2008 MILLENNIUM STOCK BROKING (P) LIMITED 2 A.Y. 2006-07 BEING ITA NO. 670/KOL/2011 AND IN GROU ND NO. 2 OF ITS APPEAL FOR A.Y. 2007-08 BEING ITA NO. 676/KOL/2011 WAS PARTLY DECIDED BY THE TRIBUNAL IN FAVOUR OF THE ASSESSEE VIDE PARA GRAPH NO. 10.1 OF ITS ORDER, BUT WHILE GIVING THE RESULT IN PARAGRAPH NO. 17, BOTH THE APPEALS OF THE ASSESSEE WERE STATED TO BE DISMISSED BY MISTAKE INSTEAD OF ALLOWING THE SAME PARTLY. 3. IT IS OBSERVED THAT A COMMON ISSUE WAS RAISED BY THE ASSESSEE IN GROUND NO. 3 OF ITS APPEAL FOR A.Y. 2006-07 AND GRO UND NO. 2 OF ITS APPEAL FOR A.Y. 2007-08 BY RAISING THE FOLLOWING IDENTICAL GROUND:- THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE LD. CIT(APPEALS) ERRED IN IGNORING THE PROVISIONS OF SE CTION 70 AND SETTLED LAW AND FACTS AND APPELLANTS CONTEN TIONS WHILE CALCULATING STT BUSINESS INCOME/NON-STT BUSIN ESS INCOME AND REBATE UNDER SECTION 88E. THE AFORESAID COMMON ISSUE WAS DECIDED BY THE TRIBU NAL VIDE PARAGRAPH NO. 10.1 OF ITS ORDER AS UNDER:- 10.1. LD. D.R. HAS SUBMITTED THAT MERELY BECAUSE I N SUBSEQUENT YEAR THE AO HAS ACCEPTED 15% EXPENSES TOWARDS STT TRANSACTIONS THAT CANNOT AUTOMATICALLY BE APPLIED FOR CURRENT YEAR. AFTER CONSIDERING SUBMISS IONS OF BOTH THE PARTIES AND TAKING INTO CONSIDERATION, THE EXPLANATION REPRODUCED EARLIER, WE ARE OF THE OPINI ON THAT THERE IS CONSIDERABLE FORCE IN THE ARGUMENT OF LD. COUNSEL OF ASSESSEE THAT ASSESSEE COULD ENTER INTO OWN TRANSACTIONS EVEN WITHOUT HAVING SUCH HUGE INFRASTRUCTURE. HOWEVER, IT CANNOT BE IGNORED THAT CONSIDERING THE VOLUME OF ASSESSEES TRANSACTION, S OME INFRASTRUCTURE WAS VERY MUCH REQUIRED. IN OUR OPINI ON, ENDS OF JUSTICE WOULD BE MET IF 25% OF THE ESTABLIS HMENT EXPENSES ARE ALLOCATED TOWARDS ASSESSEES OWN TRANSACTIONS AND 75% ARE ALLOCATED TOWARDS CLIENTS TRANSACTION (NON-STT INCOME) IN RESPECT OF ESTABLISHMENT EXPENSES. ON OTHER EXPENSES, THERE IS NO DISPUTE. 4. A PERUSAL OF THE PORTION ON THE ORDER OF THE TRI BUNAL AS REPRODUCED ABOVE CLEARLY SHOWS THAT THE COMMON ISSUE INVOLVED IN GROUND NO. 3 OF M.A. NOS. 202 & 203/KOL/2019 ( IN ITA NOS. 670 & 676/KOL/2011) ASSESS MENT YEARS: 2006-2007 & 2007-2008 MILLENNIUM STOCK BROKING (P) LIMITED 3 THE ASSESSEES APPEAL FOR A.Y. 2006-07 AND GROUND N O. 2 OF ITS APPEAL FOR A.Y. 2007-08 WAS DECIDED PARTLY IN FAVOUR OF THE AS SESSEE BY THE TRIBUNAL. HOWEVER, WHILE GIVING THE RESULT IN PARAGRAPH NO. 1 7, BOTH THE APPEALS OF THE ASSESSEE WERE STATED TO BE DISMISSED BY THE TRI BUNAL INSTEAD OF ALLOWING THE SAME PARTLY AND THERE IS THUS A MISTAK E IN THE ORDER OF THE TRIBUNAL, WHICH IS APPARENT FROM RECORD. EVEN THE L D. D.R. HAS NOT DISPUTED THIS POSITION. WE ACCORDINGLY MODIFY THE S AID MISTAKE BY DELETING THE EXISTING PARA NO. 17 OF THE TRIBUNALS COMMON ORDER DATED SEPTEMBER 29, 2015 (SUPRA) AND REPLACE THE SAME WIT H THE FOLLOWING:- 17. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE PARTLY ALLOWED, WHILE THE REVENUES APPEAL IS DISMISSED. 5. IN THE RESULT, BOTH THE MISCELLANEOUS APPLICATIO NS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON JANUARY 10, 2 020. SD/- SD/- (SATBEER SINGH GODARA) (P.M. JAGTAP) JUDICIAL MEMBER VICE -PRESIDENT KOLKATA, THE 10 TH DAY OF JANUARY, 2020 COPIES TO : (1) MILLENNIUM STOCK BROKING (P) LIMITED, 1, R.N. MUKHERJEE ROAD, 1 ST FLOOR, ROOM NO. 9, KOLKATA-700001 (2) DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-6, KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 (3) COMMISSIONER OF INCOME TAX (APPEALS)-6, KOLKA TA, (4) COMMISSIONER OF INCOME TAX , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.