GULITA SECURIRITES LTD, V. DCIT,

MA 289/MUM/2011

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0976 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2004-2005
• Appeal Filed On: 19-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SUBHASH SHETTY
• Keywords: Depreciation
• Section: 32

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUM BAI , , , BEFORE SHRI SANJAY ARORA, AM AND SHRI AMIT SHUKLA, JM ./ M.A. NO.289/M/2011 (ARISING OUT OF ITA NO.4086/M/2008) ( / ASSESSMENT YEAR: 2004-05) GULITA SECURITIES LTD. 131, TAHNEE HEIGHTS, D BLOCK, NEPEANSEA ROAD, MUMBAI - 400 006 / VS. DY. CIT 4(1) ROOM NO.640, 6 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020 # ./$ ./PAN/GIR NO. AAACG 0526 E ( % #& /APPELLANT ) : ( '(#& / RESPONDENT ) % #& ) / APPELLANT BY : SHRI SUBHASH SHETTY '(#& * ) / RESPONDENT BY : SHRI NEERAJA PRADHAN + * , / DATE OF HEARING : 23.08.2013 -./ * , / DATE OF PRONOUNCEMENT : 30.08.2013 / O R D E R PER SANJAY ARORA, A. M.: THIS IS A MISCELLANEOUS PETITION BY THE ASSESSEE IN RESPECT OF THE ORDER BY THE TRIBUNAL DATED 31.05.2010 U/S. 254(1) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) PASSED IN ITS CASE FOR ASSESSMENT YEAR (AY) 2004-05 IN THE CAPTIONED APPEAL. 2 M.A. NO. 289 /MUM/2011 (A.Y. 2004-05) GULITA SECURITIES LTD. VS. DY. CIT 2. OPENING THE ARGUMENTS FOR AND ON BEHALF OF THE A SSESSEE, IT WAS SUBMITTED BY THE LEARNED AUTHORIZED REPRESENTATIVE (AR), THE ASSESSE ES COUNSEL, THAT THE APPEAL UNDER REFERENCE HAD BEEN PREFERRED BY THE REVENUE. THE SA ME WAS DISMISSED BY THE TRIBUNAL IN THE FIRST INSTANCE VIDE ITS ORDER DATED 27.08.2009, ALLOWING DEPRECIATION ON THE BSE/NSE MEMBERSHIP RIGHT FOLLOWING THE CONSISTENT VIEW BY T HE TRIBUNAL THAT DEPRECIATION IS EXIGIBLE ON THE BSE/NSE MEMBERSHIP CARD. HOWEVER, I N VIEW OF THE SUBSEQUENT DECISION BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CAS E OF CIT VS. TECHNO SHARES & STOCKS LTD. [2010] 323 ITR 69 (BOM), THE TRIBUNAL VIDE ITS IMPU GNED ORDER MODIFIED ITS EARLIER ORDER DATED 27/8/2009, WITHDRAWING THE SAID DEPRECI ATION INASMUCH AS THE MEMBERSHIP RIGHT IN THE NATIONAL STOCK EXCHANGE DID NOT FALL I N ANY OF CATEGORIES OF THE ASSETS SPECIFIED UNDER SECTION 32(1)(II) OF THE ACT. THE S AID DECISION HAS SINCE BEEN REVERSED BY THE HONBLE SUPREME COURT VIDE ITS DECISION REPORTE D AS TECHNO SHARES & STOCKS LTD. VS. CIT [2010] 327 ITR 323 (SC). HENCE THE PRESENT APPLICA TION BY THE ASSESSEE, PRAYING FOR A MODIFICATION OF THE TRIBUNALS ORDER DATED 31/5/2 010. THE LD. DR DID NOT DISPUTE ANY OF THE FACTS, WHICH ARE EVEN OTHERWISE MANIFEST ON THE RECORD, NOR CHALLENGED THE LEGAL POSITION AS TO THE EXIGIBILITY OF A CLAIM FOR RECTIFICATION UNDER THE CIRCUMSTANCES, FOR WHICH TH E ASSESSEE HAS RELIED ON THE DECISION IN THE CASE OF ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD. [2008] 305 ITR 227 (SC). 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. THE PRIMARY FACTS ARE NOT DISPUTED AND EVEN OTHERWISE ARE APPARENT FR OM THE MATERIAL ON RECORD. THE ASSESSEE IS A MEMBER OF THE NATIONAL STOCK EXCHANGE , AND ITS CLAIM FOR DEPRECIATION ON THE SAID MEMBERSHIP STOOD DENIED IN VIEW OF THE DEC ISION BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF TECHNO SHARES & STOCKS LTD . (SUPRA). HOWEVER, THE SAID DECISION HAS SINCE BEEN REVERSED BY THE APEX COURT PER ITS D ECISION CITED (SUPRA). THE APEX COURT EXAMINED THE TERMS OF THE MEMBERSHIP CONTRACT (BYE- LAWS OF THE EXCHANGE) IN DETAIL IN ARRIVING AT ITS DECISION, CLARIFYING IT TO BE THE B ASIS THEREOF. THOUGH THE SAID DECISION IS IN RESPECT OF MEMBERSHIP RIGHTS IN BOMBAY STOCK EXCHAN GE, THE TERMS AND CONDITIONS OF WHICH MAY WELL BE DIFFERENT IN MATERIAL RESPECTS FR OM THAT OBTAINING IN THE CASE OF NSE 3 M.A. NO. 289 /MUM/2011 (A.Y. 2004-05) GULITA SECURITIES LTD. VS. DY. CIT MEMBERSHIP, THE SAME HAS A CLEAR AND DIRECT IMPLICA TION FOR A SIMILAR CLAIM QUA THE RIGHTS IN NSE MEMBERSHIP AS WELL. ACCORDINGLY, WE ONLY CON SIDER IT FIT AND PROPER THAT THE IMPUGNED ORDER IS RECALLED FOR BEING HEARD IN RESPE CT OF THE ASSESSEES CLAIM FOR DEPRECIATION U/S. 32 ON ITS MEMBERSHIP RIGHTS IN NS E AFRESH, AND A DECISION IN ACCORDANCE WITH THE LAW AS EXPLAINED BY THE APEX COURT IN THE CASE OF TECHNO SHARES & STOCK LTD . (SUPRA). AS EXPLAINED BY IT IN HONDA SIEL POWER PRODUCTS LTD. VS. CIT [2007] 295 ITR 466 (SC), AN AUTHORITY PASSING AN ORDER HAS AN INHE RENT POWER TO RECTIFY AND/OR MODIFY THE SAME WHERE IT HAS RESULTED IN A PREJUDICE TO AN Y OF THE PARTIES BEFORE IT. AS SUCH, THOUGH THE PRESENT CASE MAY NOT STRICTLY FALL UNDER THE SCOPE OF S. 254(2), WHICH MAY NOT EVEN AUTHORIZE RECALL OF AN ORDER, THE VERY FACT TH AT THE IMPUGNED ORDER IS BASED ON A DECISION WHICH NO LONGER REPRESENTS GOOD LAW, IS A FIRM LEGAL BASIS FOR A RECALL OF THE SAME FOR PASSING AN ORDER IN LIGHT OF THE LAW AS CL ARIFIED. WE DECIDE ACCORDINGLY. 4. IN THE RESULT, THE ASSESSEES MISCELLANEOUS APPL ICATION IS ALLOWED IN THE AFORESAID TERMS. ORDER PRONOUNCED IN THE OPEN COURT ON AUGUST 30, 20 13 SD/- SD/- (AMIT SHUKLA) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER 0+ MUMBAI; 1 DATED : 30.08.2013 . ../R A.K.PATEL , SR. PS !' # $%&' (!'% / COPY OF THE ORDER FORWARDED TO : 1. % #& / THE APPELLANT 2. '(#& / THE RESPONDENT 3. ( % ) / THE CIT(A) 4. / CIT - CONCERNED 5. 5 6 ' 7 , % , 7/ , 0+ / DR, ITAT, MUMBAI 6. 6 9: ; + / GUARD FILE !' ) / BY ORDER, */)+ (DY./ASSTT. REGISTRAR) , 0+ / ITAT, MUMBAI