AMU SHARES AND SECURITIES LTD, V. DCIT CIR 4(1),

MA 35/MUM/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2131 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-07-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2005-2006
• Appeal Filed On: 24-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUM BAI . . , , BEFORE SHRI I. P. BANSAL, JM AND SHRI SANJAY ARORA , AM ./MA NOS. 35 & 36/MUM/2014 (ARISING OUT OF ITA NOS. 5954 & 5955/MUM/2009) ( / ASSESSMENT YEARS: 2005-06 & 2006-07) AMU SHARES & SECURITIES LTD. CRESCENT CHAMBERS, GROUND FLOOR, HOMI MODI CROSS STREET, FORT, MUMBAI - 400 001 / VS. DY. CIT CIRCLE 4(1), 6 TH FLOOR, R. NO. 640, AAYKAR BHAVAN, MUMBAI 400 020 ' ./# ./PAN/GIR NO. AAACA 3778 L APPLICANT : RESPONDENT APPLICANT BY : SHRI DEEPAK TRALSHAWALA RESPONDENT BY : SHRI SUNIL KUMAR AGARWAL $ % & '( / DATE OF HEARING : 04.07.2014 DATE OF ORDER : 04.07.2014 ) / O R D E R PER SANJAY ARORA, A. M.: THIS IS A SET OF TWO MISCELLANEOUS APPLICATIONS (M AS FOR SHORT) BY THE ASSESSEE IN RESPECT OF A COMMON ORDER DATED 16.07.2010 BY TH E TRIBUNAL IN ITS CASE FOR THE ASSESSMENT YEARS (A.YS.) 2005-06 AND 2006-07. THE I SSUE RAISED BEING COMMON, THESE WERE HEARD TOGETHER, AND ARE BEING DISPOSED OF VIDE A COMMON, CONSOLIDATED ORDER. 2.1 THE SOLE ISSUE BEING AGITATED BY THE ASSESSEE P ER ITS MAS IS THAT ITS CLAIM FOR DEPRECIATION ON THE BOMBAY STOCK EXCHANGE (BSE) MEM BERSHIP CARD WAS DIRECTED FOR DISALLOWANCE, ALLOWING THE APPEAL OF THE REVENUE, B Y FOLLOWING THE DECISION BY THE 2 MA NOS. 35 & 36/MUM/2014 (A.YS. 2005-06 & 2006-07) AMU SHARES & SECURITIES LTD. VS. DY. CIT HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. TECHNO SHARES & STOCKS LTD. & OTHRS . (REPORTED AT [2010] 323 ITR 69 (SC)). HOWEVER, TH E SAID DECISION HAS SINCE BEEN OVERRULED BY THE HONBLE SUPREME COURT VIDE ITS DEC ISION REPORTED AT [2010] 327 ITR 323 (SC), ALLOWING THE ASSESSEES APPEAL. ACCORDINGLY, THE IMPUGNED ORDER BE RECALLED, FOR PASSING OF FRESH ORDER IN RESPECT OF THE REVENUES GROUND NOS. 2 & 3 FOR A.YS. 2005-06 & 2006-07 RESPECTIVELY. 2.2 THE LD. DEPARTMENTAL REPRESENTATIVE (DR), ON TH E OTHER HAND, WOULD OBJECT TO THE SAME STATING THAT THE RULING DECISION ON THE DATE O F PASSING OF THE ORDER BY THE TRIBUNAL WAS THAT BY THE HONBLE JURISDICTIONAL HIGH COURT. THE DECISION BY THE APEX COURT, BEING NOW RELIED UPON BY THE ASSESSEE, IS DATED 09.09.201 0, I.E., AFTER THE PASSING OF THE IMPUGNED ORDER. AS SUCH, RECTIFICATION PROCEDURE CO ULD NOT BE INVOKED, AND THE MATTER WAS AT BEST DEBATABLE AT THE TIME OF PASSING OF THE IMPUGNED ORDER, WITH THE TRIBUNAL HAVING TAKEN A CONSCIOUS, INFORMED VIEW; IN FACT, F OLLOWING A BINDING DECISION. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. THE ARGUMENT BY THE LD. DR, ATTRACTIVE AT FIRST BLUSH, HAVING IN FA CT FOUND FAVOUR WITH THE TRIBUNAL IN SOME CASES, ON THE BASIS THAT THE DECISION BY THE APEX C OURT, OVERRULING THE BINDING DECISION FOLLOWED BY THE TRIBUNAL, STOOD RENDERED AT A LATER DATE. HOWEVER, WE FIND IT AS WITHOUT MUCH SUBSTANCE IN LAW. THIS IS AS FOR THE REASON TH AT THE VERY DECISION ON WHICH THE IMPUGNED ORDER IS BASED, I.E., BY THE HONBLE JURIS DICTIONAL HIGH COURT IN THE CASE OF TECHNO SHARES & STOCKS LTD. (SUPRA), DOES NOT OBTAIN ANY LONGER, HAVING BEEN S INCE OVERRULED. THE SAID OVERRULING, WE MAY CLARIFY, SHA LL OPERATE FROM THE DATE THE DECISION BY THE HONBLE HIGH COURT STOOD DELIVERED. IN FACT, THE PROPOSITION OF LAW, IF ANY, LAID DOWN BY THE APEX COURT PER ITS SAID DECISION, WOULD SEEK TO CLARIFY THE LAW AS IT ALWAYS STOOD. WE, ACCORDINGLY, HAVE NO HESITATION IN, ACCE PTING THE ASSESSEES PLEA (REFER PARA 7 OF THE INSTANT APPLICATIONS), MODIFYING THE IMPUGNE D ORDER BY DIRECTING THE ASSESSING OFFICER TO CONSIDER THE ASSESSEES CLAIM FOR DEPREC IATION ON BSE MEMBERSHIP CARD WITH REFERENCE TO THE BINDING DECISION BY THE APEX COURT IN THE CASE OF TECHNO SHARES & STOCKS LTD. & OTHRS . (SUPRA). WE DECIDE ACCORDINGLY. 3 MA NOS. 35 & 36/MUM/2014 (A.YS. 2005-06 & 2006-07) AMU SHARES & SECURITIES LTD. VS. DY. CIT 4. IN THE RESULT, THE ASSESSEES MISCELLANEOUS APPL ICATIONS ARE ALLOWED ON THE AFORESAID TERMS. ORDER PRONOUNCED IN THE OPEN COURT ON JULY 4, 2014. SD/- SD/- (I. P. BANSAL) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER $ % MUMBAI; * DATED : 04.07.2014 . ../ ROSHANI , SR. PS !' # $%&' (!'% / COPY OF THE ORDER FORWARDED TO : 1. '+ / THE APPLICANT 2. ,-'+ / THE RESPONDENT 3. $ .' ( ) / THE CIT(A) 4. $ .' / CIT CONCERNED 5. 12 ,' 3 , ( 34 , $ % / DR, ITAT, MUMBAI 6. 256 7% / GUARD FILE !' ) / BY ORDER, */)+ , (DY./ASSTT. REGISTRAR) , $ % / ITAT, MUMBAI