SYKES & RAYS EQUITIES (INDIA) LTD., V. ASST.C.I.T,4(2),

MA 708/MUM/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6050 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-01-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2005-2006
• Appeal Filed On: 26-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P N DEVADASAN
• Assessee Lawyers: GOPAL BOHRA
• Keywords: Depreciation

Judgement Text

1 MA 708/M/2010 M/S SYKES & RAYS EQUITIES (I) LTD. IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E BEFORE SHRI P.M. JAGTAP, A.M. AND SHRI R.S. PADVEKA R, JM MISC. APPLICATION NO. 708/MUM/2010 ARISING OUT OF ITA NO. 6201/MUM/2008 ASSESSMENT YEAR 2005-06 M/S SYKES & RAYS EQUITIES (INDIA) LTD., 24/16, CAMA BUILDING, DALAL STREET, FORT, MUMBAI -400 023. PAN AAECS5`168A VS. ACIT- 4(2), AAYAKAR BHAWAN, M.K. ROAD, MUMBAI 400 020. APPLICANT RESPONDENT APPLICANT BY SHRI GOPAL BOHRA RESPONDENT BY SHRI P.N. DEVADASAN ORDER PER P.M. JAGTAP, A.M. BY THIS MISC. APPLICATION, THE ASSESSEE IS SEEKING RECTIFICATION OF THE ORDER OF THE TRIBUNAL DATED 15.4.2010 PASSED IN ITA NO. 6201/MUM /08 ON THE GROUND THAT THE VIEW TAKEN THEREIN WHILE CONFIRMING THE DISALLOWANCE MAD E ON ACCOUNT OF DEPRECIATION CLAIMED ON BOMBAY STOCK EXCHANGE MEMBERSHIP CARD IS NOT IN CONFORMITY WITH THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF TE CHNO SHARES AND STOCKS LTD. DELIVERED SUBSEQUENTLY ON 9 TH SEPTEMBER, 2010 WHEREIN IT HAS BEEN HELD THAT DEPR ECIATION ON BOMBAY STOCK EXCHANGE MEMBERSHIP CARD BEING AN I NTANGIBLE ASSET 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 DISP OSING OF THE APPEAL OF THE ASSESSEE VIDE 2 MA 708/M/2010 M/S SYKES & RAYS EQUITIES (I) LTD. ITS ORDER DATED 15.4.2010 (SUPRA), THE DISALLOWANCE MADE BY THE A.O. AND CONFIRMED BY THE LD. CIT(A) ON ACCOUNT OF DEPRECIATION CLAIMED O N BOMBAY STOCK EXCHANGE MEMBERSHIP CARD WAS CONFIRMED BY THE TRIBUNAL RELYI NG ON THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. TECHNO SHA RES AND STOCKS LTD. REPORTED IN 323 ITR 69 (BOM). THE SAID DECISION OF HONBLE BOMBAY H IGH COURT, HOWEVER, HAS BEEN SUBSEQUENTLY REVERSED BY THE HONBLE SUPREME COURT VIDE ITS JUDGMENT DATED 9 TH SEPTEMBER, 2010 (SUPRA) WHEREIN IT HAS BEEN HELD TH AT BOMBAY STOCK EXCHANGE MEMBERSHIP CARD CAN BE CONSIDERED AS AN INTANGIBLE ASSET FOR THE PURPOSE OF ALLOWING DEPRECIATION U/S 32(1)(II). THE DECISION TAKEN BY T HE TRIBUNAL VIDE ITS ORDER DATED 15.4.2010 THUS IS CONTRARY TO THE VIEW EXPRESSED BY THE HONBLE SUPREME COURT IN THE CASE OF TECHNO SHARES AND STOCKS AND THIS POSITION HAS NOT BEEN DISPUTED EVEN BY THE LEARNED D.R. AT THE TIME OF HEARING BEFORE US. IN THE CASE OF WIMCO INDUSTRIES 318 ITR 308, THE HONBLE SUPREME COURT HAS HELD THAT IN CAS E THE SUBSEQUENT JUDGMENT LAID DOWN A PRINCIPLE OF LAW, THEN IT WILL BE APPLICABLE ACRO SS THE BOARD AND BASED ON THE SAME, RECTIFICATION CAN BE DONE. KEEPING IN VIEW THE SAI D JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF WIMCO INDUSTRIES (SUPRA) WHICH IS SQUARELY APPLICABLE IN THE PRESENT CONTEXT, WE RECTIFY THE ORDER OF THE TRIBUNAL DATED 15.4.2010 AND DELETE THE DISALLOWANCE MADE BY THE A.O. AND CONFIRMED BY THE LD. CIT(A) ON ACCOUNT OF DEPRECIATION CLAIMED ON BOMBAY STOCK EXCHANGE MEMBERSHIP CARD. THE RELEVANT GROUND OF THE ASSESSEES APPEAL BEING ITA NO. 6201/MUM/08 I.E. GROUND NO. 1 THUS ST ANDS ALLOWED. 3. IN THE RESULT, THE MISC. APPLICATION FILED BY TH E ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN ON 28 TH JANUARY, 2011. SD/- SD/- (R.S. PADVEKAR) (P.M. JAGTAP) JUDICIAL MEMBER ACCO UNTANT MEMBER MUMBAI, DATED 28 TH JANUARY, 2011. 3 MA 708/M/2010 M/S SYKES & RAYS EQUITIES (I) LTD. RK COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) -CONCERNED, MUMBAI 4. THE CIT- CONCERNED, MUMBAI 5. THE DR BENCH, E 6. MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI 4 MA 708/M/2010 M/S SYKES & RAYS EQUITIES (I) LTD. DATE INITIALS 1 DRAFT DICTATED ON 28.1.11 SR. PS 2 DRAFT PLACED BEFORE THE AUTHOR 31.1.11 SR. PS 3 DRAFT PLACED BEFORE THE SECOND MEMBER 4 APPROVED DRAFT COMES TO THE SR. PS SR. PS 5 KEPT FOR PRONOUNCEMENT ON SR. PS 6 FILE SENT TO THE BENCH CLERK SR. PS 7 DATE ON WHICH FILE GOES TO THE HEAD CLERK 8 DATE ON WHICH FILE GOES TO THE AR 9 DATE OF DISPATCH OF ORDER