PEREGRINE SECURITIES INDIA P.LTD, V. DCIT 10(1),

MA 528/MUM/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9490 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-10-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2002-2003
• Appeal Filed On: 13-08-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: K R LAKSHMINARAYAN
• Keywords: Depreciation; Unabsorbed depreciation

Judgement Text

MA NO.528 OF 2012 (7297 OF 2008) PEREGRINE SECURITI ES INDIA PVT LTD MUMBAI PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL 'C' BENCH, MUMBAI BEFORE SHRI D.K. AGARWAL, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER MA NO.528/MUM/2012 (ARISING OUT OF ITA NO.7297/MUM/2008) (ASSESSMENT YEAR: 2002-03) M/S PEREGRINE SECURITIES INDIA PVT. LTD, RAHEJAS, 4 TH FLOOR, CORNER OF MARINE AVENUE, V.P. ROAD, SANTACRUZ (WEST) MUMBAI-400054 PAN: AAACP 3526 H VS. DCIT 10(1), AAYAKAR BHAVAN, MK ROAD, MUMBAI 400020 (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI K.R. LAKSHMINARAYAN DEPARTMENT BY: SHRI MOHIT JAIN, DR DATE OF HEARING: 19/10/2012 DATE OF PRONOUNCEMENT: 31/10/2012 O R D E R PER B. RAMAKOTAIAH, A.M. THIS MISCELLANEOUS APPLICATION PREFERRED BY ASSESS EE AGAINST THE ORDER OF THE ITAT C BENCH DATED 9.9.2010. THE M.A. PREFERRED BY ASSESSEE IS AS UNDER: OUR COUNSEL HAD APPEARED ON OUR BEHALF BEFORE THE C BENCH OF HON'BLE TRIBUNAL ON 31-08-2010 FOR ASSESSM ENT YEAR 2003-04 AGAINST CIT (A)S ORDER DATED 14-11-20 08. A TOTAL OF FIVE GROUNDS HAS BEEN RAISED BY US IN TH E APPEAL. GROUND NO.4 IS AS UNDER: '4, THE LEARNED CIT (APPEALS) FAILED TO APPRECIATE THAT APPELLANT WAS THE OWNER OF STOCK EXCHANGE CARD AND WAS ENTITLED TO DEPRECIATION OF ` 1, 40, 00, 0001- THEREON IN A, Y. 1997-98 AND THAT UNABSORBED DEPRECIATION OF ` 2, 01,24,855/- BEING LOWER THAN THE B/F. BUSINESS LOSS OF ` 9,72,27,6841- THE SAME SHOULD BE REDUCED FROM BOOK PROFIT OF MA NO.528 OF 2012 (7297 OF 2008) PEREGRINE SECURITI ES INDIA PVT LTD MUMBAI PAGE 2 OF 3 ` 1,22,37,5291- THEREBY TAXABLE INCOME UNDER SECTION 115JE BECOMES NIL. ' AFTER THE FILING OF THE APPEAL ON 23-12-2008 THE BO MBAY HIGH COURT HAD PASSED AN ORDER ON THIS POINT IN THE CASE OF CIT V. TECHNO SHARES AND STATE LTD., ON 11-09-20 09 WHICH IS REPORTED IN 323 ITR 69 HOLDING THAT STOCK EXCHANGE CARD IS NOT ENTITLED TO GET DEPRECIATION, (COPY IS ENCLOSED). IT CANNOT BE DENIED THAT THE DECISION OF THE JURISD ICTIONAL HIGH COURT HAS TO BE ACCEPTED AND CANNOT BE ARGUED AGAINST. THEREFORE ON A QUERY FROM THE HON'BLE BENC H OUR ADVOCATE EXPRESSED THE OPTION THAT THE MATTER I S NOT BEING PRESSED . HOWEVER, IN THE ORDER DATED 09-09-2010 THE HON'BLE ITAT IN PARA 3 OF ITS ORDER HAD HELD AS UNDER: '3. DURING THE COURSE OF ARGUMENT THE LEARNED COUNS EL FOR THE ASSESSEE DID NOT PRESS GROUND NO. -I WITH REFERENCE TO DEPRECIATION ON STOCK EXCHANGE CARD. HENCE, THIS GR OUND IS TREATED AS WITHDRAWN. .. IT IS CLARIFIED THAT IN VIEW OF THE BOMBAY HIGH COU RT'S JUDGMENT THE INTENTION OF OUR COUNSEL IS MERELY NOT TO PRESS THE ISSUE AND THE INTENTION WAS NOT TO WITHDR AW THE GROUND OF APPEAL ALTOGETHER. AN AFFIDAVIT FROM OUR COUNSEL IS ENCLOSED. IT IS HUMBLY REQUESTED THAT THE ORDER OF THE TRIBUN AL MAY PLEASE BE RECALLED AND PARA 3 OF THE ORDER MAY BE RECTIFIED TO SUBSTITUTE BY THESE WORDS 'THIS GROUND IS NOT PRESSED' IN PLACE OF THE WORDS 'THIS GROUND IS TREA TED AS WITHDRAWN'. 2. AFTER CONSIDERING THE ARGUMENTS OF THE LEARNED COUN SEL, WE ARE OF THE VIEW THAT THERE IS NO NEED TO ENTERTAIN THE M.A. IT IS A FACT THAT THE LEARNED COUNSEL DID NOT PRESS GROUND NO.4 WHICH WAS RECORDED IN PARA-3 AS UNDER: '3. DURING THE COURSE OF ARGUMENT THE LEARNED COUNS EL FOR THE ASSESSEE DID NOT PRESS GROUND NO. -I WITH REFERENCE TO DEPRECIATION ON STOCK EXCHANGE CARD. HENCE, THIS GROUND IS TREATED AS WITHDRAWN. MA NO.528 OF 2012 (7297 OF 2008) PEREGRINE SECURITI ES INDIA PVT LTD MUMBAI PAGE 3 OF 3 3. THE ONLY OBJECTION SEEMS TO BE TREATING THE GROUND AS WITHDRAWN. WE ARE UNABLE TO UNDERSTAND THE OBJECTIO N OF ASSESSEE. ONCE GROUND IS NOT PRESSED SPECIFICALLY, THE GROUND HAS TO BE TREATED AS WITHDRAWN ONLY. THE FACT THAT THE GROUND IS NOT PRESSED BY THE COUNSEL WAS RECORDED AS SUCH. THERE IS NO NE ED TO MODIFY THE ORDER AS REQUESTED BY ASSESSEE. ACCORDINGLY, TH E MISCELLANEOUS APPLICATION FILED BY ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST OCTOBER, 2012. SD/- SD/- (D.K.AGARWAL) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED 31 ST OCTOBER, 2012. VNODAN/SPS COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. THE DR, C BENCH, ITAT, MUMBAI BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI