SPS SHARE BROKERS P. LTD, V. ASTT CIT 4(2),

MA 585/MUM/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6180 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2004-2005
• Appeal Filed On: 08-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: B V JHAVERI
• Keywords: Depreciation; Question of law
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'E' BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER MA NO. 585/MUM/2010 (ARISING OUT OF ITA NO. 1562/MUM/2008 & MA NO. 793/MUM/2009) (ASSESSMENT YEAR: 2004-05) M/S. SPS SHARE BROKERS PVT. LTD. ACIT, CIRCLE 4(2) 121/4, M.G. ROAD, AGRA BLDG. ROOM NO. 642, 6TH FLOO R MUMBAI 400001 VS. AAYAKAR BHAVAN, M.K. ROAD PAN - AABCS 9622 C MUMBAI 400020 APPLICANT RESPONDENT APPLICANT BY: SHRI B.V. JHAVERI RESPONDENT BY: SHRI R.K. GUPTA O R D E R PER B. RAMAKOTAIAH, A.M. THIS IS ASSESSEES MISCELLANEOUS APPLICATION FILED AGAINST ORDER ARISING OUT OF ITA NO. 1562/MUM/2008 DATED 29 TH JULY 2009 WHICH STANDS MODIFIED BY MA NO. 793/MUM/2009 FILED BY THE REVENUE. 2. THE ASSESSEE IS A MEMBER OF THE BOMBAY STOCK EXC HANGE AND IS ENGAGED IN THE BUSINESS OF SHARE TRADING AND BROKIN G BUSINESS. DURING THE YEAR UNDER CONSIDERATION ASSESSEE FILED ITS RETURN OF INCOME DECLARING TOTAL INCOME OF ` 92,74,614/-. WHILE COMPLETING THE ASSESSMENT UNDER SECTION 143(3) OF THE I.T. ACT, 1961 THE ASSESSING OFFICER DISALLOWED DEPRECIATION OF ` 6,52,588/- ON BSE CARD. AGGRIEVED BY THE ORDER OF T HE A.O. THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) WHO UPHELD THE DI SALLOWANCE OF DEPRECIATION ON BSE CARD. AGAINST THE ORDER OF THE CIT(A), THE ASSESSEE FILED AN APPEAL BEFORE THE ITAT WHICH HAS ALLOWED THE APP EAL OF THE ASSESSEE COMPANY ON SECOND GROUND, I.E. ON GROUND OF DEPRECI ATION ON BSE CARD OF ` 6,52,588/- RELYING ON THE DECISION OF THE HONBLE T RIBUNAL IN THE CASE OF THE ASSESSEE COMPANY FOR A.Y. 2003-04 IN ITA NO. 5144/M UM/2006 VIDE ORDER DATED 21.11.2008. WHILE ALLOWING THE APPEAL OF THE ASSESSEE COMPANY FOR A.Y. 2003-04, THE HONBLE TRIBUNAL HAD RELIED ON TH E DECISION OF THE CO- MA NO. 585/MUM/2010 M/S. SPS SHARE BROKERS PVT. LTD. 2 ORDINATE BENCH IN THE CASE OF M/S. TECHNO SHARES & STOCK LTD. VS. ITO 101 TTJ 349 WHEREIN THE TRIBUNAL HELD THAT THE BOMBAY S TOCK EXCHANGE CARD IS AN INTANGIBLE ASSET ELIGIBLE FOR DEPRECIATION. IN T HE CASE OF THE ASSESSEE COMPANY FOR A.Y. 2001-02 THE HONBLE TRIBUNAL HAD A LLOWED THE APPEAL OF THE ASSESSEE COMPANY AND ACCORDINGLY DIRECTED THE A .O. TO ALLOW DEPRECIATION TO THE ASSESSEE COMPANY ON THE BSE CAR D. AGAINST THE AFORESAID ORDER OF THE ITAT IN THE CASE OF THE ASSE SSEE COMPANY FOR A.Y. 2001-02 THE COMMISSIONER OF INCOME TAX HAD FILED AN APPEAL BEFORE THE HON'BLE BOMBAY HIGH COURT WHICH WAS BEARING ITA NO. 1046 OF 2009. THE HON'BLE BOMBAY HIGH COURT VIDE ITS ORDER DATED 11 TH SEPTEMBER 2009 ALLOWED THE APPEAL OF THE CIT AND REVERSED THE ORDE R OF THE ITAT. THEN, THE REVENUE FILED MISCELLANEOUS APPLICATION CONSEQUENT TO THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN ASSESSEES OWN CASE FO R A.Y. 2004-05. ASSESSEE FILED A DECLARATION UNDER SECTION 158A(1)O F THE I.T. ACT IN FORM NO. 8 AT THE TIME OF EARLIER M.A. BY THE REVENUE INDICA TING THAT THE QUESTION OF LAW WAS PENDING BEFORE THE HON'BLE SUPREME COURT IN RESPECT OF ASSESSMENT YEAR 2001-02 AND THIS WAS FILED ON 19.03.2010 AT TH E TIME OF CONSIDERING THE M.A. OF THE REVENUE. THE SAID MA WAS ALLOWED MODIFY ING THE EARLIER ORDER VIDE MA NO. 793/MUM/2009. 3. NOW THE ASSESSE REQUEST FOR MODIFICATION OF EARLIER DECISION AS THE HON'BLE SUPREME COURT DID NOT APPROVE THE JUDGEMENT OF HONBLE BOMBAY HIGH COURT. THE PRAYER IS FOR RESTORING ORIGINAL DE CISION OF ALLOWING THE DEPRECIATION. 4. SINCE THE ASSESSEE FILED A DECLARATION UND ER SECTION 158A(1) OF THE I.T. ACT CLAIMING THAT IDENTICAL QUESTION OF LAW IS PEND ING BEFORE THE HON'BLE SUPREME COURT AND SINCE THE HON'BLE SUPREME COURT I N ASSESSEES OWN CASE FOR AY 2001-02 HAS ALLOWED ASSESSEES CONTENTIONS A ND REVERSED THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF M/S . TECHNO SHARES & STOCKS LTD. VIDE CIVIL APPEAL NO. 7890 OF 2010 IN A SSESSEES OWN CASE, THE ORDER OF THE ITAT ALLOWING REVENUES M.A. CONSEQUEN T TO THE JUDGEMENT IS TO BE MODIFIED. SINCE THE ASSESSEES CONTENTION WAS AL LOWED BY THE ITAT IN ITA NO. 1562/MUM/2008 VIDE PARA 8 OF THE ORDER ORIGINAL LY, THAT ORDER STANDS MA NO. 585/MUM/2010 M/S. SPS SHARE BROKERS PVT. LTD. 3 AS SUCH AND ASSESSEES GROUND IS CONSIDERED ALLOWED . A.O. IS DIRECTED TO ALLOW THE DEPRECIATION ON BSE CARD. 5. IN THE RESULT, M.A. OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD MARCH 2011. SD/- SD/- (D. MANMOHAN) (B. RAMAKOTAIAH) VICE PRESIDENT ACCOUNTANT MEMBER MUMBAI, DATED: 23 RD MARCH 2011 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) IV, MUMBAI 4. THE CIT IV, MUMBAI CITY 5. THE DR, E BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.