ACIT CIR4(2), V. TATA SECURITIES P. LTD,

MA 784/MUM/2009

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 3613 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-04-2010
• Appeal Filed By: Department
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 24-11-2009
• Court: TRIBUNAL
• Department Lawyers: RAJNISH ARVIND
• Assessee Lawyers: M M GOLWALA
• Keywords: Business income; Depreciation; Retrospective amendment; Difference of opinion; Capital receipt; Change of opinion

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E BEFORE SHRI N.V. VASUDEVAN (JM) & RAJENDRA SINGH (A M) M.A. NO. 784/MUM/2009 ARISING OUT OF I.T.A.NO. 5001/MUM/2008 (ASSESSMENT YEAR : 2005-06 ) M.A. NO. 830/MUM/2009 ARISING OUT OF I.T.A.NO. 3845/MUM/2008 (ASSESSMENT YEAR : 2003-04 ) ACIT CIRCLE 4(2) ROOM NO. 642, 6 TH FLOOR AAYAKAR BHAVAN M.K. ROAD MUMBAI-400 020. VS. TATA SECURITIES PVT. LIMITED ARMY & NAVY BUILDING 148, M.G. ROAD FORT MUMBAI-400 001. APPELLANT RESPONDENT PAN/GIR NO. : AAACT2150R ASSESSEE BY : SHRI M.M. GOLWALA DEPARTMENT BY : SHRI RAJNISH ARVIND ORDER PER N.V. VASUDEVAN, JM :- THESE ARE MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE PRAYING THAT THE ORDER DATED 14.9.2009 IN ITA NO. 5001/MUM/ 2008 AND ITA NO. 3845/MUM/2008 DATED 19.6.2009 SUFFERS FROM MISTAKE APPARENT ON THE FACE OF THE RECORD, WHICH NEEDS TO BE RECTIFIED. 2. THE ONLY ISSUE WHICH WAS RAISED BY THE REVENUE I N THE AFORESAID APPEALS WAS AS TO WHETHER LEARNED CIT(A) WAS JUSTIF IED IN DIRECTING THE ASSESSING OFFICER TO ALLOW CLAIM OF THE ASSESSEE FO R DEDUCTION ON ACCOUNT OF DEPRECATION WHILE COMPUTING BUSINESS INCOME ON T HE MEMBERSHIP RIGHT OF STOCK EXCHANGE I.E. BSE AS CLAIMED BY THE ASSESSEE. THE TRIBUNAL FOLLOWING THE DECISION OF MUMBAI BENCH OF THE ITAT IN THE CASE OF TECHNO SHARES & STOCKS LTD. VS. ITO IN ITA NO. 778/MUM/04 UPHELD THE ORDER OF LEARNED CIT(A) AND DISMISSED THE REVENUES APPEA LS. TATA SECURITIES PVT. LIMITED 2 3. IN THIS MISCELLANEOUS APPLICATIONS, IT HAS BEEN POINTED OUT BY THE REVENUE THAT HON'BLE BOMBAY HIGH COURT HAS REVERSED THE DECISION OF HON'BLE TRIBUNAL IN THE CASE OF TECHNO SHARES & STO CKS LTD.(SUPRA). HON'BLE BOMBAY HIGH COURT IN THE CASE OF TECHNO SHA RES & STOCKS LTD. IN ITA NO. 218 OF 2007 BY ITS JUDGEMENT DATED 11.9.200 9 HAS HELD THAT BSE CARD IS NOT ANY ONE OF THE ITEMS OF INTANGIBLE ASSETS LISTED IN SECTION 32(1)(II) OF THE ACT; AND THEREFORE DEPRECATION CAN NOT BE ALLOWED ON THE VALUE OF THE BSE MEMBERSHIP CARD. IN VIEW OF THE SU BSEQUENT DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT, THE REVENUE HAS FILED THE PRESENT MISCELLANEOUS APPLICATION PRAYING THAT THE TRIBUNAL SHOULD RECTIFY ITS ORDER AND HOLD THAT THE DISALLOWANCE OF DEPRECATION ON BSE MEMBERSHIP CARD HELD BY THE ASSESSEE SHOULD BE UPHELD. 4. LEARNED DR REITERATED THE STAND OF THE REVENUE A S STATED IN THE MISCELLANEOUS APPLICATION. RELIANCE WAS PLACED ON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF ACIT VS. SAURA SHTRA KUTCH STOCK EXCHANGE, 305 ITR 227 (SC), WHEREIN IT WAS HELD THA T WHERE DECISION OF TRIBUNAL IS CONTRARY TO THE DECISION OF HONBLE JUR ISDICTIONAL HIGH COURT THEN THE SAME HAS TO BE RECTIFIED BY THE TRIBUNAL U /S.254(2) OF THE ACT. 5. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF ACIT VS. SAURA SHTRA KUTCH STOCK EXCHANGE, 305 ITR 227 (SC) WAS RENDERED IN A SITUAT ION WHERE THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT EXIST ED AS ON THE DATE WHEN THE TRIBUNAL PASSED ITS ORDER AND SINCE THE DECISIO N OF THE TRIBUNAL WAS CONTRARY TO THE SUCH EXISTING DECISION OF HON'BLE J URISDICTIONAL HIGH COURT, IT WAS HELD THAT THERE WAS A MISTAKE APPAREN T ON THE FACE OF THE ORDER AND THEREFORE RECTIFICATION WAS HELD TO BE PR OPER. IT WAS SUBMITTED BY HIM THAT IN THE CASE OF THE ASSESSEE THE TRIBUNA L DECIDED THE APPEAL ON 13.7.2009 AND AS ON THAT DATE, HON'BLE HIGH COUR T HAD NOT DECIDED THE ISSUE. THUS, IT WAS SUBMITTED BY HIM THAT THE D ECISION OF HON'BLE JURISDICTIONAL HIGH COURT RENDERED SUBSEQUENT TO TH E ORDER OF THE TATA SECURITIES PVT. LIMITED 3 TRIBUNAL WILL NOT GIVE RISE TO A MISTAKE APPARENT F ROM THE FACE OF THE RECORD; AND THEREFORE RECTIFICATION APPLICATION SHO ULD BE DISMISSED. 6. LEARNED COUNSEL FOR THE ASSESSEE FURTHER RELIED ON THE DECISION OF HON'BLE MUMBAI BENCH OF THE ITAT IN THE CASE OF KIS HANCHAND J. BHAVANI (HUF) VS. WTO; WHEREIN IT WAS HELD THAT EXE RCISE OF RECTIFICATION UNDER SECTION 254(2) ON SOLE BASIS OF SUBSEQUENT DE CISION OF JURISDICTIONAL HIGH COURT CANNOT BE MADE. FURTHER R ELIANCE WAS PLACE ON THE DECISION OF HON'BLE BOMBAY HIGH COURT IN THE CA SE OF CIT VS. SUDHIR S. MEHTA, 265 ITR 548 (BOM); WHEREIN IT WAS HELD TH AT POWER OF RECTIFICATION U/S. 254(2) CANNOT BE EXERCISED EVEN WHERE THERE IS AN AMENDMENT OF LAW WITH RETROSPECTIVE EFFECT. 7. WITH REGARD TO THE OBJECTION OF LEARNED COUNSEL FOR THE ASSESSEE THAT DECISION OF HON'BLE JURISDICTIONAL HIGH COURT RENDERED SUBSEQUENT TO THE DECISION OF THE TRIBUNAL WILL NOT GIVE RISE TO A MISTAKE APPARENT FROM THE RECORD, WE ARE OF THE VIEW THAT THE SAME C ANNOT BE ACCEPTED. IN THE CASE OF SAURASHTRA KUTCH STOCK EXCHANGE LTD. (S UPRA), HON'BLE SUPREME COURT HELD THAT NON-CONSIDERATION OF DECISI ON OF JURISDICTIONAL HIGH COURT OR OF THE SUPREME COURT CAN BE SAID TO B E A MISTAKE APPARENT FROM THE RECORD. THE CONTENTION OF LEARNED COUNSEL FOR THE ASSESSEE WAS THAT IN THE AFORESAID CASE, THE TRIBUN AL DECIDED THE MATTER ON 27 TH OCTOBER, 2000 AND THE HON'BLE GUJARAT HIGH COURT D ECIDED AN IDENTICAL CASE OF HIRALAL BHAGWATI A FEW MONTHS PRI OR TO THAT DECISION; BUT IT WAS NOT BROUGHT TO THE ATTENTION OF THE TRIB UNAL. ACCORDING TO THE LEARNED COUNSEL FOR THE ASSESSEE, THE DECISION IN T HE PRESENT CASE WAS RENDERED PRIOR TO THE DECISION OF HON'BLE BOMBAY HI GH COURT AND THEREFORE NO RECTIFICATION WAS POSSIBLE ON THE BASI S OF A SUBSEQUENT DECISION OF JURISDICTIONAL HIGH COURT. WE ARE OF TH E VIEW THAT IT MAKES NO DIFFERENCE WHETHER THE DECISION OF JURISDICTIONAL H IGH COURT IS RENDERED PRIOR OR SUBSEQUENT TO THE ORDER OF THE TRIBUNAL. I N FACT, THIS ASPECT HAS BEEN DEALT WITH BY HON'BLE SUPREME COURT IN THE CAS E OF SAURASHTRA KUTCH STOCK EXCHANGE LTD. (SUPRA) IN THE FOLLOWING WORDS :- TATA SECURITIES PVT. LIMITED 4 THE CORE ISSUE, THEREFORE, IS WHETHER NON-CONSIDER ATION OF A DECISION OF JURISDICTIONAL COURT (IN THIS CASE A DE CISION OF THE HIGH COURT OF GUJARAT) OR OF THE SUPREME COURT CAN BE SA ID TO BE A 'MISTAKE APPARENT FROM THE RECORD' ? IN OUR OPINION , BOTHTHE TRIBUNAL AND THE HIGH COURT WERE RIGHT IN HOLDING THAT SUCH A MISTAKE CAN BE SAID TO BE A 'MISTAKE APPARENT FROM THE RECORD' WHICH COULD BE RECTIFIED UNDER S. 254(2). A SIMILAR QUESTION CAME UP FOR CONSIDERATION BEFORE THE HIGH COURT OF GUJARAT IN SUHRID GEIGY LTD. VS. COMMR. OF SURTAX (SUPRA). IT WAS HELD BY THE DIVISION BENCH OF THE H IGH COURT THAT IF THE POINT IS COVERED BY A DECISION OF THE JURISDICT IONAL COURT RENDERED PRIOR OR EVEN SUBSEQUENT TO THE ORDER OF R ECTIFICATION, IT COULD BE SAID TO BE 'MISTAKE APPARENT FROM THE RECO RD' UNDER S. 254(2) OF THE ACT AND COULD BE CORRECTED BY THE TRI BUNAL. IN OUR JUDGMENT, IT IS ALSO WELL-SETTLED THAT A JUD ICIAL DECISION ACTS RETROSPECTIVELY. ACCORDING TO BLACKSTONIAN THEORY, IT IS NOT THE FUNCTION OF THE COURT TO PRONOUNCE A `NEW RULE BUT TO MAINTAIN AND EXPOUND THE OLD ONE . IN OTHER WORDS, JUDGE S DO NOT MAKE LAW, THEY ONLY DISCOVER OR FIND THE CORRECT LAW. TH E LAW HAS ALWAYS BEEN THE SAME. IF A SUBSEQUENT DECISION ALTERS THE EARLIER ONE, IT (THE LATER DECISION) DOES NOT MAKE NEW LAW. IT ONLY DISCOVERS THE CORRECT PRINCIPLE OF LAW WHICH HAS TO BE APPLIED RE TROSPECTIVELY. TO PUT IT DIFFERENTLY, EVEN WHERE AN EARLIER DECISION OF THE COURT OPERATED FOR QUITE SOME TIME, THE DECISION RENDERED LATER ON WOULD HAVE RETROSPECTIVE EFFECT CLARIFYING THE LEGAL POSI TION WHICH WAS EARLIER NOT CORRECTLY UNDERSTOOD. SALMOND IN HIS WELL-KNOWN WORK STATES; '(T)HE THEOR Y OF CASE LAW IS THAT A JUDGE DOES NOT MAKE LAW; HE MERELY DECLAR ES IT; AND THE OVERRULING OF A PREVIOUS DECISION IS A DECLARATION THAT THE SUPPOSED RULE NEVER WAS LAW. HENCE ANY INTERMEDIATE TRANSACTIONS MADE ON THE STRENGTH OF THE SUPPOSED R ULE ARE GOVERNED BY THE LAW ESTABLISHED IN THE OVERRULING D ECISION. THE OVERRULING IS RETROSPECTIVE, EXCEPT AS REGARDS MATT ERS THAT ARE RES JUDICATAE OR ACCOUNTS THAT HAVE BEEN SETTLED IN THE MEANTIME'. IT IS NO DOUBT TRUE THAT AFTER A HISTORIC DECISION IN GOLAK NATH VS. UNION OF INDIA, (1967) 2 SCR 762, THIS COURT HAS AC CEPTED THE DOCTRINE OF PROSPECTIVE OVERRULING . IT IS BASE D ON THE PHILOSOPHY : 'THE PAST CANNOT ALWAYS BE ERASED BY A NEW JUDICI AL DECLARATION'. IT MAY, HOWEVER, BE STATED THAT THIS IS AN EXCEPTIO N TO THE GENERAL RULE OF THE DOCTRINE OF PRECEDENT. RECTIFICATION OF AN ORDER STEMS FROM THE FUNDAMENTA L PRINCIPLE THAT JUSTICE IS ABOVE ALL. IT IS EXERCISED TO REMOV E THE ERROR AND TO DISTURB THE FINALITY. TATA SECURITIES PVT. LIMITED 5 IN S. NAGARAJ & ORS. VS. STATE OF KARNATAKA, 1993 S UPP (4) SCC SAHAI J. STATED : 'JUSTICE IS A VIRTUE WHICH TRANSC ENDS ALL BARRIERS. NEITHER THE RULES OF PROCEDURE NOR TECHNICALITIES O F LAW CAN STAND IN ITS WAY. THE ORDER OF THE COURT SHOULD NOT BE PR EJUDICIAL TO ANYONE. RULE OF STARE DECISIS IS ADHERED FOR CONSIS TENCY BUT IT IS NOT AS INFLEXIBLE IN ADMINISTRATIVE LAW AS IN PUBLI C LAW. EVEN THE LAW BENDS BEFORE JUSTICE. ENTIRE CONCEPT OF WRIT JU RISDICTION EXERCISED BY THE HIGHER COURTS IS FOUNDED ON EQUITY AND FAIRNESS. IF THE COURT FINDS THAT THE ORDER WAS PASSED UNDER A MISTAKE AND IT WOULD NOT HAVE EXERCISED THE JURISDICTION BUT FO R THE ERRONEOUS ASSUMPTION WHICH IN FACT DID NOT EXIST AND ITS PERP ETRATION SHALL RESULT IN MISCARRIAGE OF JUSTICE THEN IT CANNOT ON ANY PRINCIPLE BE PRECLUDED FROM RECTIFYING THE ERROR. MISTAKE IS ACC EPTED AS VALID REASON TO RECALL AN ORDER. DIFFERENCE LIES IN THE N ATURE OF MISTAKE AND SCOPE OF RECTIFICATION, DEPENDING ON IF IT IS O F FACT OR LAW. BUT THE ROOT FROM WHICH THE POWER FLOWS IS THE ANXIETY TO AVOID INJUSTICE. IT IS EITHER STATUTORY OR INHERENT. THE LATTER IS AVAILABLE WHERE THE MISTAKE IS OF THE COURT. IN ADMINISTRATIV E LAW, THE SCOPE IS STILL WIDER. TECHNICALITIES APART IF THE C OURT IS SATISFIED OF THE INJUSTICE THEN IT IS ITS CONSTITUTIONAL AND LEG AL OBLIGATION TO SET IT RIGHT BY RECALLING ITS ORDER'. IN THE PRESENT CASE, ACCORDING TO THE ASSESSEE, THE TRIBUNAL DECIDED THE MATTER ON 27TH OCT., 2000. HIRALAL BHAG WATI WAS DECIDED FEW MONTHS PRIOR TO THAT DECISION, BUT IT W AS NOT BROUGHT TO THE ATTENTION OF THE TRIBUNAL. IN OUR OPINION, I N THE CIRCUMSTANCES, THE TRIBUNAL HAS NOT COMMITTED ANY E RROR OF LAW OR OF JURISDICTION IN EXERCISING POWER UNDER SUB-S. (2 ) OF S. 254 OF THE ACT AND IN RECTIFYING 'MISTAKE APPARENT FROM THE RE CORD'. SINCE NO ERROR WAS COMMITTED BY THE TRIBUNAL IN RECTIFYING T HE MISTAKE, THE HIGH COURT WAS NOT WRONG IN CONFIRMING THE SAID ORD ER. BOTH THE ORDERS, THEREFORE, IN OUR OPINION, ARE STRICTLY IN CONSONANCE WITH LAW AND NO INTERFERENCE IS CALLED FOR. THUS, IT IS CLEAR FROM THE AFORESAID OBSERVATIONS T HAT IT MAKES ON DIFFERENCE WHETHER THE DECISION OF JURISDICTIONAL H IGH COURT WAS RENDERED PRIOR TO AFTER THE ORDER OF THE TRIBUNAL A ND THAT SUCH DECISIONS ALWAYS ACT RETROSPECTIVELY. 8. AS FAR AS DECISION OF HON'BLE TRIBUNAL IN THE CA SE OF KISHANCHAND J. BHAVANI HUF (SUPRA) AND DECISION OF HON'BLE BOMB AY HIGH COURT IN THE CASE OF SUDHIR S. MEHTA (SUPRA) ARE CONCERNED, WE ARE OF THE VIEW THAT IN THE LIGHT OF THE PRONOUNCEMENTS OF HON'BLE SUPREME COURT IN THE CASE OF SAURASHTRA KUTCH STOCK EXCHANGE LTD. (SUPRA ), THOSE DECISIONS TATA SECURITIES PVT. LIMITED 6 CANNOT BE SAID TO BE BINDING. AS ALREADY MENTIONED, HON'BLE SUPREME COURT IN THE CASE OF SAURASHTRA KUTCH STOCK EXCHANG E LTD. (SUPRA) HAS CLEARLY HELD THAT DECISION OF JURISDICTIONAL HIGH C OURT RENDERED PRIOR OR SUBSEQUENT TO THE ORDER SOUGHT TO BE RECTIFIED, GIV ES RAISE TO A MISTAKE APPARENT FROM THE RECORD. LEARNED COUNSEL FOR THE A SSESSEE SUBMITTED THAT OBSERVATIONS OF SUPREME COURT IN THE CASE OF S AURASHTRA KUTCH STOCK EXCHANGE LTD. (SUPRA) SHOULD BE READ ONLY IN THE CONTEXT OF SAID JUDGMENT AND THE FACTS PREVAILING THEREIN. WE ARE OF THE VIEW THAT SUCH AN ARGUMENT CANNOT BE ACCEPTED. AS CAN BE SEEN FROM THE OBSERVATIONS OF HON'BLE SUPREME COURT, THE VIEW EXPRESSED IS THA T THE POINT OF TIME AT WHICH JURISDICTIONAL HIGH COURT DECISION IS RENDERE D IS IRRELEVANT. WE THEREFORE REJECT ARGUMENT OF LEARNED COUNSEL FOR TH E ASSESSEE. 9. SECOND OBJECTION OF THE LEARNED COUNSEL FOR TH E ASSESSEE WAS THAT HON'BLE SUPREME COURT IN A LATER DECISION IN THE CA SE OF MEPCO INDUSTRIES LTD. VS. CIT, 319 ITR 208 (SC) HAS TAKEN THE VIEW THAT POWER OF RECTIFICATION CANNOT BE EXERCISED ON THE BASIS O F SUBSEQUENT DECISION OF HON'BLE SUPREME COURT. IT WAS FURTHER SUBMITTED BY HIM THAT THE DECISION RENDERED IN THE CASE OF SAURASHTRA KUTCH S TOCK EXCHANGE (SUPRA) WAS A JUDGMENT CONSISTING OF BENCH OF TWO J UDGES; WHEREAS DECISION RENDERED IN THE CASE OF MEPCO INDUSTRIES L TD. (SUPRA) WAS A DECISION RENDERED BY A BENCH COMPRISING OF THREE JU DGES. IT WAS THEREFORE ARGUED THAT THE LATER DECISION SHOULD BE FOLLOWED. 10. WITH REGARD TO THE CONTENTION THAT THE DECISIO N OF HON'BLE SUPREME COURT IN THE CASE OF MEPCO INDUSTRIES LTD. (SUPRA) IS APPLICABLE TO THE FACTS OF THE PRESENT CASE, WE ARE OF THE VIEW THAT THE SAME CANNOT BE ACCEPTED. THE ISSUE IN THE CASE OF MEPCO INDUSTRIES (SUPRA) WAS WITH REGARD TO A CASE WHERE THE ISSUE BEFORE THE AUTHORI TY EXERCISING POWER OF RECTIFICATION WAS A DEBATABLE ISSUE. IN THE PRESENT CASE, THE ASSESSEE DOES NOT DISPUTE THAT THE DECISION OF HON'BLE BOMBA Y HIGH COURT IN THE CASE OF TECHNO SHARES & STOCKS LTD. (SUPRA), ASSESS EE CANNOT CLAIM DEPRECIATION ON BSE CARD. THUS, AS FAR AS THE CASE OF THE ASSESSEE IS TATA SECURITIES PVT. LIMITED 7 CONCERNED, THERE CAN BE NO DEBATE REGARDING ALLOWAB ILITY OF CLAIM FOR DEPRECIATION ON BSE CARD. IN THE CASE OF MEPCO INDU STRIES (SUPRA), THE ASSESSEE RECEIVED POWER SUBSIDY FOR TWO YEARS. INIT IALLY, IT WAS OFFERED AS A REVENUE RECEIPT. THE ASSESSEE LATER ON FILED AN A PPLICATION U/S. 264 PLEADING THAT THE SUBSIDY WAS CAPITAL RECEIPT AND R ELIED ON THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF P.J. CHEMIC ALS LTD., 210 ITR 830. THE ASSESSEES APPLICATION FOR REVISION WAS AL LOWED BY THE COMMISSIONER. THEREAFTER, HON'BLE SUPREME COURT LA ID DOWN CERTAIN PRINCIPLES WITH REGARD TO TAXABILITY OF SUBSIDY IN THE CASE OF SAHNEY STEEL AND PRESS WORKS LTD. ETC, 228 ITR 253. IN THE LIGHT OF THE LATER DECISION OF HON'BLE SUPREME COURT, COMMISSIONER RECTIFIED HI S ORDER HOLDING THAT THE POWER SUBSIDY WAS TAXABLE AS REVENUE RECEIPT. H ON'BLE SUPREME COURT HELD THAT EXERCISING POWER OF RECTIFICATION W AS IMPROPER FOR TWO REASONS. FIRSTLY, HON'BLE COURT HELD THAT POWER OF RECTIFICATION WAS INVOKED ON MERE CHANGE OF OPINION. SECONDLY, COURT HELD THAT MISTAKE SOUGHT TO BE RECTIFIED WAS NOT A MISTAKE APPARENT F ROM THE FACE OF THE RECORD IN THE SENSE THAT IT WAS NOT OBVIOUS AND THA T IT REQUIRED A LONG DRAWN PROCESS REASONING OR WHERE TWO OPINIONS WERE POSSIBLE. AS ALREADY STATED, IN THE PRESENT CASE AFTER DECISION OF HON'B LE BOMBAY HIGH COURT, THERE IS NO DISPUTE OR DEBATE WITH REGARD TO ALLOWA BILITY OF DEPRECIATION ON BSE CARD. WE ARE THEREFORE OF THE VIEW THAT DECI SION IN THE CASE MEPCO INDUSTRIES LTD. (SUPRA) WILL NOT BE OF ANY AS SISTANCE TO THE PLEA OF THE ASSESSEE BEFORE US. WE ARE THEREFORE OF THE VIE W THAT MISCELLANEOUS APPLICATION OF THE REVENUE SHOULD BE ALLOWED AND AC CORDINGLY, THE SAME IS ALLOWED. TATA SECURITIES PVT. LIMITED 8 11. THE RESULT WILL BE THAT THE APPEAL FILED BY THE REVENUE BEFORE THE TRIBUNAL WILL STAND ALLOWED AND THE DISALLOWANCE OF DEPRECIATION ON BSE MEMBERSHIP CARD MADE BY THE ASSESSING OFFICER WILL STAND RESTORED. 12. IN THE RESULT, BOTH MISCELLANEOUS APPLICATIONS ARE ALLOWED. ORDER HAS BEEN PRONOUNCED ON 30 TH DAY OF APRIL, 2010. SD/- (RAJENDRA SINGH) ACCOUNTANT MEMBER SD/- (N.V. VASUDEVAN) JUDICIAL MEMBER DATED : 30 TH APRIL, 2010 COPY TO : 1. THE ASSESSEE 2. THE RESPONDENT 3. THE CIT(A)-CONCERNED. 4. THE CIT, CONCERNED. 5. THE DR CONCERNED, MUMBAI 6. GUARD FILE BY ORDER TRUE COPY ASSTT. REGISTRAR, ITAT, MUMBAI PS