ASST CIT 4(2), V. SHAILESH MULCHAND NISSAR,

MA 558/MUM/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9123 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-08-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2006-2007
• Appeal Filed On: 01-12-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: DEVENDRA H JAIN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI J BENCH MUMBAI BENCHES, MUMBAI BEFORE SHRI P M JAGTAP, AM & SHRI VIJAY PAL RAO, J M MISCELLANEOUS APPLICATION NO. 558/MUM/2011 ARISING OUT OF ITA NO. 3685/MUM/2010 (ASST YEAR 2006-07 ) THE ASST COMMR OF INCOME TAX 4(2), MUMBAI VS SHRI SHAILESH MULCHAND NISSAR 611 STOCK EXCHANGE TOWER DALAL ST, FORT MUMBAI 23 (APPLICANT) (RESPONDENT) PAN NO. AACPN1112C ASSESSEE BY SHRI DEVENDRA H JAIN REVENUE BY SHRI V KRISHNA MOORTHY DT.OF HEARING 27 TH JULY 2012 DT OF PRONOUNCEMENT 8 TH , AUG 2012 PER VIJAY PAL RAO, JM THIS MISCELLANEOUS APPLICATION FILED BY THE REVENU E IS DIRECTED AGAINST THE ORDER DATED 6TH JULY 2011 WHEREBY THE APPEAL OF THE REVENUE WAS DISMISSED. 2 WE HAVE HEARD THE LD DR AS WELL AS THE LD AR OF T HE ASSESSEE AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE LD DR HAS POIN TED OUT THAT THE ISSUE INVOLVED IN THE REVENUES APPEAL IS REGARDING THE DISALLOWANCE MADE U/S 40(A)(IA) IN RESPECT OF THE TRANSACTION CHARGES, LEASE AND V-SAT CHARGES PA ID TO THE STOCK EXCHANGE. THE TRIBUNAL HAS DECIDED THE ISSUE IN FAVOUR OF THE AS SESSEE BY FOLLOWING THE DECISION IN THE CASE OF KOTAK SECURITIES LTD WHICH IS REVERSED BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE COMMISSIONER OF INCOME-TAX V. KO TAK SECURITIES LTD REPORTED IN 340 ITR 333 (BOM). 2.1 ON THE OTHER HAND, THE LD AR HAS SUBMITTED THAT THE PROVISIONS OF SECTION 40(A)(IA) ARE APPLICABLE ONLY TO AMOUNTS OF EXPENDI TURE WHICH ARE PAYABLE AS ON SHRI SHAILESH MULCHAND NISSAR MA NO.558/M/2011 2 31 ST MARCH OF THE PREVIOUS YEAR. HE HAS RELIED UPON T HE DECISION OF THE SPECIAL BENCH OF THE VISAKHAPATNAM, BENCH OF THE TRIBUNAL IN THE CASE OF RAJAMAHENDRI SHIPPING & OIL FIELD SERVICES LTD VS ACIT REPORTED IN 136 ITD 23. 3 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND CARE FULLY PERUSED THE RELEVANT MATERIAL ON RECORD. THE ISSUE OF DISALLOWANCE MAD E U/S 40(A)(IA) WAS DECIDED BY THE TRIBUNAL BY FOLLOWING THE DECISION OF THE CO-OR DINATE BENCH OF THE TRIBUNAL IN THE CASE OF KOTAK SECURITIES LTD REPORTED IN 26 SOT 440 . 3.1 SINCE THE DECISION OF THE TRIBUNAL HAS BEEN REV ERSED BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS KOT AK SECURITIES LTD (SUPRA); THEREFORE, IN VIEW OF THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT, WE RECALL THE ORDER OF THE TRIBUNAL DATED 6 TH JULY 2011. 4 THE REGISTRY IS DIRECTED TO FIX THE APPEAL OF THE REVENUE FOR FRESH HEARING IN THE NORMAL COURSE. 5 IN THE RESULT, THE MISCELLANEOUS APPLICATION BY T HE REVENUE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 8 TH , DAY OF AUG 2012. SD/- SD/- ( P M JAGTAP ) ACCOUNTANT MEMBER ( VIJAY PAL RAO ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 8 TH ,AUG 2012 RAJ* SHRI SHAILESH MULCHAND NISSAR MA NO.558/M/2011 3 COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI