GULITA SECURITIES LTD, V. DCIT WD 4(1)(2),

MA 551/MUM/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0079 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-02-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2001-2002
• Appeal Filed On: 27-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEEPAK KUMAR SINHA
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI BEFORE SHRI P.M.JAGTAP, ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO, JUDICIAL MEMBER. M.A. NO. 551/MUM/2012. (ARISING OUT OF ITA NO.6934/MUM/2005) ASSESSMENT YEAR : 2001-02. M/S GULITA SECURITIES LTD., THE INCOME-TAX OFFICER, 1 ST FLOOR, KRISHNA BHAVAN, VS. WARD-4(1)(2), 67, NEHRU ROAD, VILE PARLE (E), MUMBAI. MUMBAI-57. PAN AAACG 0526E APPLICANT. RESPONDENT. APPLICANT BY : NONE. RESPONDENT BY : SHRI DEEPAK KUMAR SINHA. DATE OF HEA RING : 01-02-2013. DATE OF PRONOUNCEM ENT : 08-02-2013. O R D E R PER P.M. JAGTAP, A.M. : BY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE IS SEEKING RECTIFICATION OF THE ORDER OF THE TRIBUNAL DATED 30 TH JULY, 2010 PASSED IN ITA NO. 693/MUM/2005 ON THE GROUND THAT THE VIEW TAKEN THEREIN WHILE DEC IDING THE ISSUE RAISED IN GROUND NO. 1 RELATING TO DISALLOWANCE ON ACCOUNT OF DEPREC IATION CLAIMED ON BOMBAY STOCK EXCHANGE MEMBERSHIP CARD AGAINST THE ASSESSEE IS NOT IN CONFORMITY WITH THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE O F TECHNO SHARES & STOCKS LTD. DELIVERED SUBSEQUENTLY ON 9 TH SEPT., 2010 WHEREIN IT WAS HELD THAT THE 2 M.A.NO.551/MUM/2012 DEPRECIATION ON BOMBAY STOCK EXCHANGE MEMBERSHIP CA RD BEING AN INTANGIBLE ASSETS IS ALLOWABLE U/S 32(1)(II). 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS OBSERVED THAT WHILE DISPO SING OF THE APPEAL OF THE ASSESSEE VIDE ITS ORDER DATED 30 TH JULY, 2010(SUPRA), THE DISALLOWANCE MADE ON ACCOUN T OF DEPRECIATION CLAIMED ON BOMBAY STOCK EXCHANGE MEMBE RSHIP CARD WAS CONFIRMED BY THE TRIBUNAL RELYING ON THE DECISION O F HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. TECHNO SHARES & STOCK LTD. R EPORTED IN 323 ITR 69 (BOM.). THE SAID DECISION OF HONBLE BOMBAY HIGH COURT, HOW EVER, HAS BEEN REVERSED BY THE HONBLE SUPREME COURT VIDE ITS JUDGMENT DATED 9 TH SEPT, 2010 (SUPRA) WHEREIN IT HAS BEEN HELD THAT THE BOMBAY STOCK EXCHANGE MEM BERSHIP CARD CAN BE CONSIDERED AS AN INTANGIBLE ASSET FOR THE PURPOSE O F ALLOWING DEPRECIATION FOR THE PURPOSE OF SECTION 32(1)(II). THE DECISION TAKEN BY THE TRIBUNAL VIDE ITS ORDER DATED 30 TH JULY, 2010 (SUPRA) THUS IS CONTRARY TO THE VIEW E XPRESSED BY THE HONBLE SUPREME COURT IN THE CASE OF TECHNO SHARES & STOCKS LTD. (SUPRA) AND THIS POSITION HAS NOT BEEN DISPUTED EVEN BY THE LEARNED DR AT THE TIME OF HEARING BEFORE US. IN THE CASE OF WIMCO INDUSTRIES 318 ITR 308, TH E HONBLE SUPREME COURT HAS HELD THAT IN CASE THE SUBSEQUENT JUDGMENT LAID DOWN A PRINCIPLE OF LAW, THEN IT WOULD BE APPLICABLE ACROSS THE BOARD AND BASED ON T HE SAME, RECTIFICATION CAN BE DONE. ACCORDINGLY, WE RECTIFY THE ORDER OF THE TRIB UNAL DATED 30 TH JULY, 2010 AND DELETE THE DISALLOWANCE MADE BY THE AO AND CONFIRME D BY THE LEARNED CIT(APPEALS) ON ACCOUNT OF DEPRECIATION CLAIMED BY THE ASSESSEE ON BOMBAY STOCK EXCHANGE MEMBERSHIP CARD. THE RELEVANT GROUND OF ASSESSEES APPEAL BEING ITA NO. 693/MUM/2005 I.E. GROUND NO.1, THUS STANDS ALLOWED. 3 M.A.NO.551/MUM/2012 3. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 8 TH DAY OF FEBRUARY, 2013 SD/- SD/- (VIJAY PAL RAO) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED : 8 TH FEBRUARY, 2013 WAKODE COPY TO : 1. APPLICANT. 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. D.R., A-BENCH. (TRUE COPY) BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.