GULITA SECURIRITES LTD, V. DCIT,

MA 288/MUM/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 7063 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-08-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2005-2006
• Appeal Filed On: 19-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M R KUBAL
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH G, MUMBAI BEFORE SHRI R.S. SYAL, A.M. AND SHRI V. DURGA RAO, J.M. M.A. NO. 288/MUM/2011 (IN ITA NO. 3006/MUM/2009 ASSESSMENT YEAR: 2005-06 M/S GULITA SECURITIES LTD., APPLICANT 13 TH FLOOR, D. BLDG., PETIT HALL, NAPEANSEA ROAD, MUMBAI 400 023. (PAN AAACG 0526 E) VS. DY. COMMISSIONER OF INCOME TAX - 4(1), RESPONDENT 6 TH FLOOR, R.NO. 640, AAYAKAR BHAVAN, MUMBAI. APPLICANT BY : MR. SUBHASH S. SHETTY RESPONDENT BY : MR. M.R. KUBAL ORDER PER V. DURGA RAO, J.M.: THIS MISCELLANEOUS APPLICATION FILED BY THE ASSESSE E ARISES OUT OF THE ORDER OF ITAT G BENCH, MUMBAI BENCHES, MUM BAI, IN APPEAL ITA NO. 3006/MUM/2009 DATED 13 TH APRIL, 2010. THE ASSESSEE IN THE M.A., STATED AS UNDER:- ONE OF THE GROUNDS OF APPEAL RAISED BY THE REVENUE BEFORE THE TRIBUNAL HAD CHALLENGED THE GRANTING OF DEPRECIATIO N ON NATIONAL STOCK EXCHANGE MEMBERSHIP CARD BY THE CIT(A). THE T RIBUNAL, FOLLOWING THE DECISION OF THE BOMBAY HIGH COURT IN THE CASE OF CIT VS. TECHNO SHARES & STOCKS LTD., 232 ITR 69, HE LD THAT THE APPLICANT ASSESSEE IS NOT ENTITLED TO DEPRECIATION ON THE COST OF MEMBERSHIP CARD UNDER SECTION 32(1)(II) OF THE ACT, AND ACCORDINGLY ALLOWED THIS GROUND OF APPEAL OF THE RE VENUE. ON AN APPEAL PREFERRED BY TECHNO SHARES & STOCKS LT D. AGAINST THE BOMBAY HIGH COURT JUDGMENT, THE SUPREME COURT O F INDIA REVERSED THE SAID DECISION OF THE BOMBAY HIGH COURT AND HELD THAT DEPRECIATION WAS ALLOWABLE ON THE COST OF THE STOCK EXCHANGE MEMBERSHIP CARD U/S 32(1)(II) OF THE ACT, WHICH IS REPORTED IN 327 ITR 323(SC). M.A. NO. 288/MUM/2011 M/S GULITA SECURITIES LTD. 2 2. IN VIEW OF THE ABOVE, THE LEARNED COUNSEL FOR TH E ASSESSEE, BEFORE US, SUBMITTED THAT THE ORDER OF THE TRIBUNAL (SUPRA) GIVES RAISE TO A MISTAKE APPARENT FROM RECORD AS THE JUDGMENT O F THE SUPREME COURT GAVE THE CORRECT INTERPRETATION OF THE SECTIO N IN QUESTION. HE FURTHER SUBMITTED THAT ANY INTERPRETATION WHICH IS CONTRARY TO THE INTERPRETATION GIVEN BY THE SUPREME COURT GIVES RAI SE TO A MISTAKE APPARENT FROM THE RECORD. 3. AFTER HEARING THE LEARNED DR, AND PERUSING THE M ATERIAL ON RECORD, IT IS OBSERVED THAT SINCE THE JUDGMENT OF H ONBLE HIGH COURT HAS BEEN REVERSED BY THE APEX COURT, ON WHICH RELIA NCE PLACED BY THE TRIBUNAL WHILE DECIDING THE GROUND REGARDING DEPREC IATION ON NATIONAL STOCK EXCHANGE MEMBERSHIP CARD, WE DIRECT THE AO TO ALLOW THE DEPRECIATION CLAIM OF THE ASSESSEE AS PER THE JUDGM ENT OF HONBLE SUPREME COURT, WHICH IS REPORTED IN 327 ITR 323 (SC ). 4. IN THE RESULT, THE MA FILED BY THE ASSESSEE IS A LLOWED, AS INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT ON THIS 12 TH DAY OF AUGUST, 2011. SD/- SD/- (R.S. SYAL) (V. DURGA RAO) ACCOUNTANT MEMBER JUDI CIAL MEMBER MUMBAI, DATED: 12 TH AUGUST, 2011 KV M.A. NO. 288/MUM/2011 M/S GULITA SECURITIES LTD. 3 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) CONCERNED. 4) THE CIT CONCERNED. 5) THE DEPARTMENTAL REPRESENTATIVE, G BENCH, I.T .A.T., MUMBAI. BY ORDER //TRUE COPY// ASST. REGISTRAR, I.T.A.T., MUMBAI.