Income Tax Appellate Tribunal - Mumbai
Acit 1(2)(1), Mumbai vs Icici Securities Primary Dealership ... on 18 May, 2018
IN THE INCOME TAX APPELLATE TRIBUNAL
MUMBAI BENCHES "G", MUMBAI
Before Shri Joginder Singh, Judicial Member
& Shri G Manjunatha, Accountant Member
ITA No.3600/Mum/2016
Assessment Year : 2004-2005
ACIT 1(2)(1) ICICI Securities Primary Dealership Ltd.
Mumbai ICICI Centre, H T Parekh Marg,
Vs. Churchgate,
Mumbai 400 020
PAN AAACI0995H
(Appellant) (Respondent)
Appellant By : Ms N Hemalatha
Respondent By : Ms Krupa R Gandhi & Ms. Vidhi Doshi
Date of Hearing : 03.05.2018 Date of Pronouncement : 18.05.2018
ORDER
Per G Manjunatha, Accountant Member
This appeal filed by the Revenue is directed against order of the CIT(A)-8, Mumbai, dated 18.02.2016, and it pertains to assessment year 2004-05. The Revenue has raised following grounds of appeal:-
"1) On the facts and in the circumstances of the case and in Law, the Ld. CIT(A) erred directing the Assessing Officer to delete the addition on account of Short term Capital Loss of Rs 6,36,65,058/- and Long term Capital Loss of Rs 32,83,484/- suffered by the assessee."
2. The facts of the case are that the assessee company, a primary dealer and merchant banker in the securities market and also registered with SEBI for merchant banking and portfolio management, filed its return of income for A.Y 2004-05 on 29.10.2004 declaring total income at ` 1,27,02,00,588/- under normal provisions of the Income Tax Act, 1961 and book profit at ` 1,90,22,34,514/-. The assessment was completed u/s, 143(3) on 03.03.2005 determining the total income 2 ITA No.3600/Mum/2016 ICICI Securities Primary Dealership Ltd.
at ` 162,13,12,640/- under the normal provisions of the Income Tax Act, 1961. The assessee preferred appeal before the first appellate authority against the order passed by the Assessing Officer u/s. 143(3) of the Act. The learned CIT(A), vide order dated 15..02.2007, partly allowed the appeal filed by the assessee, wherein the learned CIT(A) has deleted the additions made by the Assessing Officer towards Long term as well as Short term capital losss derived from the purchase and sale of shares by holding that Explanation to section 73 is not applicable and, therefore, the Assessing Officer erred in making additions towards Short term and Long term capital loss derived from sale of shares as speculative loss. Thereafter, the Assessing Officer passed order giving effect to the order of the CIT(A) on 20.03.2007, determining the total income at ` 140,44,83,270/-, wherein the Assessing Officer has not given effect to the Short term capital loss of ` 6,37,65,058/- and Long term capital loss of ` 32,83,484/- by holding that the learned CIT(A) in para 7.3 of the order dated 15.02.2007, allowed the claim of the assessee for ` 12,32,95,026/- only. Thereafter, the assessee filed application u/s. 154 on 09.03.2009 before the Assessing Officer to rectify the mistakes in order giving effect to the order of the CIT(A). However, such application has been rejected by the Assessing Officer by stating that there is no mistake apparent from record requiring rectification u/s. 154 of the Act. The assessee has filed further appeal before the first appellate authority against the order passed by the Assessing Officer u/s. 154. The CIT(A), vide its order dated 18.02.2016, deleted the additions made by the Assessing Officer towards Short term capital loss ` 6,37,65,058/- and Long term capital loss of ` 32,83,484/- by holding that Explanation to section 73 has no application and, hence, the Assessing Officer was incorrect in making additions towards loss as speculative losses. Aggrieved by the order of the CIT(A), the Revenue is in appeal before us.
3. The learned AR for the assessee, at the time of hearing submitted that the issue involved in this appeal has already been decided by the ITAT, in ITA No. 3108/Mum/2007, vide order dated 02.06.2017, wherein in para 8.1 of its order has held that Explanation to section 73 is not applicable and, hence, the first appellate 3 ITA No.3600/Mum/2016 ICICI Securities Primary Dealership Ltd.
authority has rightly deleted the additions made by the Assessing Officer towards speculative losses derived from purchase and sale of shares.
4. On the other hand, the learned DR fairly accepted that ITAT has decided the issue in favour of the assessee.
5. We have heard both the parties and perused the material available on record. We find that the issue of disallowance of Short term capital loss and Long term capital loss by the Assessing Officer has been decided by the ITAT in ITA No.3108/Mum/2007 for A.Y. 2004-05, wherein the ITAT has categorically held that the transactions in dispute were settled by actual delivery of shares and, therefore, same cannot be treated as speculative transactions. Since the issues involved in present appeal relates to similar additions made by the Assessing Officer in proceedings u/s. 143(3) and such additions have already been deleted by the ITAT, we are of the considered view that the present appeal by the Revenue becomes infructuous and, hence, we dismiss the appeal of the Revenue.
6. In the result, the appeal filed by the Revenue is dismissed.
Order pronounced in the open court on this day of 18th May 2018.
Sd/- Sd/-
(Joginder Singh) (G Manjunatha)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Mumbai, Dated : 18th May, 2018.
SA
Copy of the Order forwarded to :
1. The Appellant.
2. The Respondent.
3. The CIT(A), Mumbai.
4. The CIT
5. The DR, 'G' Bench, ITAT, Mumbai BY ORDER
//True Copy// (Assistant Registrar)
Income Tax Appellate Tribunal, Mumbai