ROHIT S. VISHWASRAO, MUMBAI V. INCOME TAX OFFICER WARD 32(3)(2), MUMBAI

MA 222/MUM/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6242 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2012-2013
• Appeal Filed On: 21-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAUARABH KUMAR RAI
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'D' BENCH, MUMBAI BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER MA NO. 222/MUM/2017 (ARISING OUT OF ITA NO. 6700/MUM/2016) (ASSESSMENT YEAR: 2012-13) SHRI ROHIT S. VISHWASRAO 104, RAJ SHREE ROYAL COMPLEX EKSAR ROAD, BORIVALI (W) MUMBAI 400063 VS. INCOME TAX OFFICER - 32(3)(2 ) MUMBAI PAN ADJHPV4439N APPLICANT RESPONDENT APPLICANT BY: SHRI DHARMESH SHAH RESPONDENT BY: SHRI SAUARABH KUMAR RAI DATE OF HEARING: 16.02.2018 DATE OF PRONOUNCEMENT: 16.02.2018 O R D E R PER RAJESH KUMAR, AM THE PRESENT MISCELLANEOUS APPLICATION IS ARISING OU T OF ITA NO. 6700/MUM/2017 FILED BY THE ASSESSEE REQUESTING TO R ECTIFY THE MISTAKE WHICH IS APPARENT FROM THE FACE OF THE ORDER DATED 29.03.2017. 2. THE LEARNED A.R. SUBMITTED BEFORE THE BENCH THAT AT THE TIME OF HEARING THE APPEAL IT WAS SUBMITTED THAT FORM NO. 1 0DB IS NOT APPLICABLE TO THE ASSESSEE AS THE SAME IS APPLICABLE WHERE THE CLAIM OF REBATE IN RESPECT OF SECURITIES TRANSACTION TAX (STT) IS MADE UNDER SECTION 88E OF ACT . THE LEARNED A.R. FURTHER SUBMITTED THAT THE REBATE UNDER SECTION 88E OF STT R.W. RULE 20AB WAS ONLY AVAILABLE TILL A .Y. 2008-09 AS IS CLEAR FROM THE PROVISIONS OF SECTION 88E(3) OF THE ACT A ND THEREFORE FORM 10DB IS NOT APPLICABLE TO THE CURRENT YEAR. THE LEARNED A.R. THE LEARNED A.R. FURTHER SUBMITTED THAT THE TRIBUNAL IN PARA 11 OF T HE ORDER DATED 29.03.2017 PASSED IN ITA NO. 6700/MUM/2016 FOR A.Y. 2012-13 HAS GIVEN DIRECTION TO FILE FORM NO.10DB WITHIN THREE MONTHS FROM THE RECEIPT OF THE MA NO. 222/MUM/2017 SHRI ROHIT S. VISHWASRAO 2 ORDER WHERE AS THIS IS NOT POSSIBLE UNDER THE LAW T HUS CONSTITUTING AN APPARENT MISTAKE ON THE FACE OF THE ORDER AND PRAYE D THAT THE SAME SHOULD BE MODIFIED TO THAT EXTENT. 3. THE LEARNED D.R., ON THE OTHER HAND, OPPOSED TO THE ARGUMENTS OF THE LEARNED A.R. AND SUBMITTED THAT THE ORDER OF THE IT AT HAS BEEN PASSED AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE A ND CLEAR FINDINGS HAVE BEEN GIVEN IN THE ORDER AND THUS THE SAME DID NOT C ONTAIN ANY MISTAKE WHICH REQUIRES ANY RECTIFICATION UNDER SECTION 254 (2) OF THE I.T. ACT AND PRAYED THAT THE SAME SHOULD BE DISMISSED. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RELE VANT MATERIAL ON RECORD. WE FIND THAT FORM NO. 10DB IS REQUIRED TO B E FILED IN RESPECT OF CLAIM OF REBATE QUA SECURITY TRANSACTION TAX ON THE TRANSACTIONS CARRIED OUT ON RECOGNISED EXCHANGES WHERE THE INCOME IS ASSESSA BLE UNDER THE HEAD INCOME FROM BUSINESS OR PROFESSION. HOWEVER WE FI ND THAT W.E.F. A.Y. 2009-10 THE REBATE UNDER SECTION 88E OF THE ACT HAS BEEN DONE AWAY WITH AND THEREFORE FORM NO. 10DB R.W. RULE 20AB IS NO MO RE RELEVANT AND APPLICABLE IN THE SUBSEQUENT YEARS. ACCORDINGLY WE FIND MERIT IN THE SUBMISSIONS OF THE LEARNED A.R. THAT SUCH DIRECTION WAS INADVERTENTLY INCORPORATED IN THE ORDER DATED 29.03.2017. WE ACCO RDINGLY FIND THAT IT IS AN APPARENT MISTAKE TO THE EXTENT OF DIRECTING THE ASS ESSEE TO FILE FORM NO. 10DB WITHIN THREE MONTHS FROM THE RECEIPT OF THIS O RDER AND SAME REQUIRES RECTIFICATION. ACCORDINGLY THE SAID ORDER IS MODIFI ED TO THAT EXTENT. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH FEBRUARY, 2018. SD/ - SD/ - (JOGINDER SINGH) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 16 TH FEBRUARY, 2018 MA NO. 222/MUM/2017 SHRI ROHIT S. VISHWASRAO 3 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) -CONCERNED 4. THE CIT - CONCERNED 5. THE DR, D BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.