Hornic Commodity Dealers P.Ltd, Mumbai vs Department Of Income Tax

आयकर अपीलीय अिधकरण, अिधकरण मुंबई IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES 'H' MUMBAI सव ौी आय.पी. बंसल, याियक सदःय एवं ौी आर.सी. शमा , लेखा सदःय के सम BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI R.C.SHARMA , ACCOUNTANT MEMBER

ITA NO.2711/MUM/2013(A.Y. 2007-08)

The DCIT - 2(1), Hornic Commodity Dealers Pvt. Room No.561, Aaykar Bhavan, Ltd., MK Road, Mumbai 400020 Vs. 201, 2nd Floor, Fort Foundation, (Appellant ) Maharashtra Chambers, Fort, Mumbai 400023 PAN:AABCH 4428 (Respondent)

Appellant by : Shri Dharmesh Shah Respondent by : Shri Dr.P.Daniel, Spl.Counsel.

Date of hearing : 03/02/2015 Date of pronouncement : 03/02/2015

ORDER

PER I.P.BANSAL, J.M:

This is an appeal filed by the Revenue and it is directed against order passed by Ld. CIT(A)-4, Mumbai dated 01.02.2013 for assessment year 2007-08. Grounds of appeal read as under:

"On the facts and in the circumstances of the case and in law, the learned CIT(A) has erred in allowing relief to the assessee to the extent impugned in the grounds enumerated below

1. "The order of the CIT(A) is opposed to law and facts of the case".

2. "On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in coming to a conclusion that provisions of section 115JB are not applicable to 2 ITA NO.2711/MUM/2013(A.Y. 2007-08)

this case, overlooking the fact that the tax payable u/s 115JB is higher than the tax payable as per normal provisions".

3. "On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in directing that rebate u/s 88E has to be allowed out of tax payable as per provisions of section 115JB overlooking the fact that section 115JB starts with non- abstante clause and therefore, such rebate cannot be allowed".

4. "On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in directing that rebate u/s 88E has to be allowed out of tax payable as per provisions of section 115JB overlooking the fact that section 115JB is a code in itself and the quantum of tax rebate as per sub section (2) of section 88E cannot be determined while working out the tax payable as per the provisions of section 115JB."

2. It may be mentioned here that Ld. AR was requested to state that whether or not assessee has also preferred any appeal against the impugned order passed by Ld. CIT(A). In response it was stated by Ld. AR that assessee did not file any appeal against the impugned order passed by Ld. CIT(A).

3. It was further submitted by Ld. AR that the issue raised by the Revenue is covered in favour of the assessee by the following decision of ITAT:

(1) D.H. Securities (P) Ltd. vs. DCIT, (2014) 146 ITD 1 (SB) (2) ACIT Vs. Futurepath Management Services Pvt. Ltd., ITA No.7678/Mum/2011 order dated 27/02/2013.

It was further submitted that this issue is also covered by the decision of Hon'ble Karnataka High Court in the case of CIT vs. Horizon Capital Ltd., (2011) 245 CTR (Kar) 601. and decision of Hon'ble Delhi High Court in the case of CIT vs. MBL & Co. Ltd., (2013) 259 CTR (Del) 505.

4. However, Ld. DR relied upon the order passed by the Assessing Officer.

3 ITA NO.2711/MUM/2013(A.Y. 2007-08) 5. After careful consideration of the submissions of both the parties we are of the opinion that the issue raised by the Revenue in the present appeal is covered in favour of the assessee by the aforementioned decisions. Reference can be made to the decision of Hon'ble Delhi High Court in the case of CIT vs. MBL & Co. Ltd. (supra), wherein it has been held that provisions of section 87 and 88E of the Act apply to total income computed under section 115JB and the assessee would be entitled to deduction to the extent of the security transaction tax borne by the assessee during the course of business in the relevant previous year. In the case of CIT vs. Horizon Capital Ltd., (supra) also it has been laid down that assessee is entitled to rebate under section 88E in respect of STT paid where the total income is assessed under section 115JB of the Act. Aforementioned decisions of Tribunal also laid down similar proposition.

6. In this view of the situation after hearing both the parties we find no merit in the Departmental appeal and the same is dismissed.

7. In the result, appeal filed by the Revenue is dismissed.

Order pronounced in the open court on 03/02/2015 आदे श क घोषणा खुले यायालय म" #दनांकः 03/02/2015 को क गई ।

Sd/- Sd/- (आर.सी. शमा /R.C.SHARMA ) (आय.पी. बंसल / I.P. BANSAL) लेखा सदःय /ACCOUNTANT MEMBER याियक सदःय / JUDICIAL EMBER मुंबई Mumbai; #दनांक Dated 03/02/2015 4 ITA NO.2711/MUM/2013(A.Y. 2007-08)

आदे श क ूितिल*प अमे*षत/Copy षत of the Order forwarded to : 1. अपीलाथ- / The Appellant 2. ू.यथ- / The Respondent. 3. आयकर आयु/(अपील) / The CIT(A)- 4. आयकर आयु/ / CIT

5. *वभागीय ूितिनिध, आयकर अपीलीय अिधकरण, मुंबई / DR, ITAT, Mumbai

6. गाड फाईल / Guard file.

आदे शानुसार/ ार BY ORDER, स.या*पत ूित //True Copy//

उप/सहायक उप सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपीलीय अिधकरण, अिधकरण मुंबई / ITAT, Mumbai व.िन.स./Vm, Sr. PS