NATIONAL COMMODITIES & DERIVATIVES EXCHANGE LTD, MUMBAI V. ASST CIT 15(2)(1), MUMBAI

MA 649/MUM/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6551 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 31-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHIRAMA KARTIKEYAN
• Assessee Lawyers: SUNIL NAHATA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI AMARJIT SINGH , JM MA NO.649/MUM/2018 (ARISING OUT OF ITA NO. 62 / MUM/20 1 6 ( ASSESSMENT YEAR : 2011 - 12 ) M/S. NATIONAL COMMODITIES & DERIVATIVES EXCHANGE LTD., CORPORATE PARK, 1 ST FLOOR NEAR G.E. GARDEN LBS MARG, KANJURMARG (W) MUMBAI 400 079 VS. ASST. COMMISSIONER OF INCOME TAX, R.NO.403, 4 TH FLOOR AAYAKAR BHAVAN, M.K.ROAD MUMBAI 400 020 PAN/GIR NO. AABCN7696K ( APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY S HRI SUNIL NAHATA REVENUE BY SHRI ABHI RAMA KARTIKEYAN DATE OF HEARING 04 / 01 /201 9 DATE OF PRONOUNCEMENT 09 / 01 /201 9 / O R D E R PER R.C.SHARMA (A.M) : THIS M.A. AROUSE OF ITA NO.62/MUM/2016. 2. THROUGH THIS MA, IT WAS PRAYED BY LD. AR THAT TRIBUNAL HAVE ISSUED DIRECTION WITH RESPECT TO THE GROUND TAKEN BY REVENUE REGARDING INVESTOR PROTECTION FUND, HOWEVER, THIS ISSUE WAS NOT RAISED BY REVENUE IN ITS APPEAL. M A NO. 649/MUM/2018 M/S. NATIONAL COMMODITIES AND DERIVATIVES EXCHANGE LTD., 2 3. WE HAVE GONE THROUGH THE MISCELLANEOUS PETITION AND FOUND THAT WHILE DISPOSING THE APPEAL, THE BENCH HAS OBSERVED AT PARAGRAPH 5 ON PAGE NO 3 OF THE ORDER AS FOLLOWS : '......5 THE FACTS AND CIRCUMSTANCES DURING THE YEAR UNDER CONSIDERATION ARE SAME, THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF THE TRIBUNAL CONSISTENTL Y TAKEN IN THE CASE OF ASSESSEE FOR THE A.Y.2007 - 08 TO 2010 - 11, WE DO NOT FIND ANY MERIT FOR THE ADDITION MADE BY THE AO. HOWEVER, FROM THE RECORD, WE OBSERVE THAT TILL THE END OF FINANCIAL YEAR UNDER CONSIDERATION, THE ASSESSEE HAS NOT CREATED THE INVESTO R PROTECTION FUND AS PER REQUIREMENT OF FORWARD MARKET COMMISSION (FMC). IT ALSO APPEARS THAT THE MONEY SO COLLECTED WAS SHOWN AS LIABILITY IN ASSESSEE'S BALANCE SHEET. IT ALSO APPEARS THAT ASSESSEE HAS INVESTED THIS MONEY IN MUTUAL FUNDS FOR EARNING SOME INCOME. SINCE THE INVESTOR PROTECTION FUND HAS STILL NOT BEEN CREATED, IT IS NOT CLEAR AS TO WHETHER THE INCOME GENERATED ON SUCH INVESTMENT OF FUND BY THE ASSESSEE HAVING BEEN OFFERED TO TAX EITHER IN THE HANDS OF ASSESSEE OR IN THE HANDS OF THE FUND, AO IS DIRECTED THE VERIFY THE SAME AND DECIDE AS PER LAW AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE.....' 4. FROM THE RECORD WE FOUND THAT ISSUE RAISED BY THE REVENUE WAS LIMITED TO DECIDE THE TREATMENT GIVEN FOR INVESTOR PROTECTION FUND AND THE AMOUNT KEP T SEPARATE LY IN THE ACCOUNT. ACCORDINGLY, DIRECTION OF THE TRIBUNAL TO THE AO TO VERIFY WHETHER THE INCOME GENERATED ON THE INVESTMENTS MADE IN MUTUAL FUNDS OUT OF THE EARMARKED FUNDS HAS BEEN OFFERED TO TAX IN THE HANDS OF THE ASSESSEE OR IN THE HANDS OF T HE FUND AND DECIDE AS PER THE LAW AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE CONSTITUTES THE MISTAKE APPARENT FROM RECORD . THUS, WE FOUND THAT THE CAPTIONED ORDER OF THE ITAT IS PASSED ON THE GROUND/ISSUE WHICH WAS NEITHER RAISED BY THE ASSESSEE NOR BY THE DEPARTMENT AND AS SUCH THE OBSERVATION OF THE ITAT AT PARA 5 ON PG NO. - 3 OF THE ORDER IS BEYOND THE M A NO. 649/MUM/2018 M/S. NATIONAL COMMODITIES AND DERIVATIVES EXCHANGE LTD., 3 SUBJECT MATTER OF APPEAL. THEREFORE, THIS IS A MISTAKE WHICH IS APPARENT FROM RECORD. ACCORDINGLY, WE EXPUNGE THIS PORTION OF THE TRIBUNAL ORDER. 5. IN THE RESULT, M.A. FILED BY THE ASSESSEE IS ALLOWED. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 09 / 01 /201 9 SD/ - ( AMARJIT SINGH ) SD/ - (R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUM BAI ; DATED 09 / 01 /201 9 KARUNA SR. PS COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//