IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.4117 OF 2010

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1 1 31 itxa doc K IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.4117 OF 2010 The Commissioner of Income Tax 4 Vs. M/s. The Stock and Bond Trading Company.. Appellant.. Respondent. Mr. Vimal Gupta for the Appellant. CORAM : J.P. DEVADHAR & K.K. TATED, JJ. DATE : 14TH OCTOBER, P.C. 1 Two questions of law raised by the Revenue in this Appeal read thus: A Whether on the facts and in the circumstances of the case and in law the Tribunal was justified in deleting the additions made by the Assessing Officer under section 40(a)(ia) of the Income Tax Act, 1961 claimed by the assessee firm being VSAT charges amounting to Rs.3,12,597/ and NSE lease line charges amounting to Rs.1,66,301/ and Transaction charges of Rs.4,45,024/ paid by the Assessee Firm to the National Stock Exchange, even though the Assessee had failed to deduct tax at source while making such payments as required under section 194J of the Income Tax Act, 1961? B Whether on the facts and in the circumstances of the case and in law the Tribunal was justified in deleting the additions made by the Assessing

2 2 31 itxa doc Officer under proviso to section 37(1) of the Income Tax Act, 1961 being penalty imposed by the National Stock Exchange on the Assessee? 2 As regards the first question is concerned, counsel for the Revenue states that the said question is answered against the Revenue in case of The Income Tax Commissioner Mumbai City 4 vs. Angel Capital & Debit Market Ltd. in Income Tax Appeal (L) No.475 of 2011 dated 28 th July, Hence, the first question cannot be entertained. 3 As regards the second question is concerned, the finding of fact recorded by the CIT (A) and upheld by the ITAT is that the payments made by the Assessee to the Stock Exchange for violation of their regulation are not an account of an offence or which is prohibited by law. Hence, the invocation of explanation to section 37 of the Income Tax Act, 1961 is not justified. In our opinion, in the facts and circumstances of the present case, no fault can be found with the decision of the ITAT. Accordingly, the second question cannot be entertained. 4 Appeal is accordingly disposed of with no order as to costs. (J.P. DEVADHAR, J.) (K.K. TATED, J.)

3 1 ITA 6459/M/08 & CO 204/M/09 The Stock & Bond Trading Co. IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E BEFORE SHRI P.M. JAGTAP, A.M. AND SHRI N.V. VASUDEVAN, JM ITA No. 6459/Mum/08 Assessment Year The ITO 4(2)(2), Room No. 644, 6 th Floor, Aayakar Bhawan, M.K. Road, MUMBAI Vs. M/s The Stock & Bond Trading Co., 12, Oricon House, 14-K, Dubhash Road, Fort, MUMBAI PAN AAAFT1171F Appellant Respondent C.O. No. 204/M/08 Arising out of ITA No. 6459/M/08, A.Y M/s The Stock & Bond Trading Co., Cross objector Revenue by Assessee by PER P.M. JAGTAP, A.M. Vs. The ITO 4(2)(2), Mumbai. Appellant in appeal Shri P. Peerja Shri Prakash Jhunjunwala ORDER This appeal is preferred by the Revenue against the order of ld. CIT(A) IV, Mumbai dated and the same is being disposed of along with C.O. filed by the assessee being C.O. No. 204/Mum/ Ground No. 1 to 7 of this appeal involve a common issue relating to the disallowance made by the A.O. u/s. 40(a)(ia) on account of Leaseline charges amounting to Rs. 1,66,301/- and V. Sat charges amounting to Rs. 3,12,597/- paid to stock exchange which stands deleted by the ld. CIT(A). 3. The assessee in the present case is a partnership firm which is engaged in the business of share and stock broking. The return of income for the year under consideration was filed by it on declaring total income of Rs. 3,15,297/-. In the P&L account filed along with the said return, the amount paid to stock exchange on account of Leaseline charges amounting to Rs. 1,66,301/-, V. Sat charges amounting to Rs. 3,12,597/- and transaction charges amounting to Rs. 4,45,024/- was debited by the assessee. According to the A.O., the said charges paid by the assessee to the stock exchange were for the services of technical and managerial nature. He, therefore, held that 1

4 2 ITA 6459/M/08 & CO 204/M/09 The Stock & Bond Trading Co. deduction of tax at source should have been made by the assessee company from the payments made to the stock exchange for the said services as per provisions of Section 194 J and since no such deduction was made by the assesse, he held that the amount paid for the said services without deduction of tax at source was liable to be disallowed u/s. 40(a)(ia). The matter was carried before the ld. CIT(A) who held after examining all the aspects of the matter that Leaseline charges and V. Sat charges paid by the assessee company to stock exchange were in the nature of reimbursement of charges paid by the Members of Stock Exchange in lieu of infrastructure and trading facilities provided by the stock exchange. He was, therefore, of the opinion that it was not in the nature of fees for technical or managerial services attracting deduction of tax at source u/s. 194J. Accordingly, the disallowance made by the A.O. on account of Lease line charges and V-SAT charges by invoking the provisions of section 40(a)(ia) was deleted by the ld. CIT(A). He however, held that the amount paid by the assessee to stock exchange on account of transaction charges was in the nature of fees paid for technical or managerial services and tax at source therefore was liable to be deducted therefrom u/s. 194J. He, therefore, confirmed the disallowance made by the A.O. on account of transaction charges u/s.40(a)(ia) as no tax was admittedly deducted by the assessee company from the payment thereof. 4. We have heard the arguments of both the sides and also perused the relevant material on record. It is observed that the issue involved in ground No. 1 to 7 of the Revenue s appeal relating to disallowance on account of Leaseline charges and V. sat charges made u/s. 40(a)(ia) is squarely covered in favour of the assessee and against the Revenue by the decision of co-ordinate Bench of this Tribunal in the case of Kotak Securities Limited reported in 25 SOT 440 wherein it was held that stock exchanges did not render any managerial or technical services and therefore fees paid to them cannot be subjected to deduction of tax at source u/s. 194J. It was held that the provisions of section 40(a)(ia) therefore could not be invoked to disallow any payment made to stock exchange for the services rendered by it. Respectfully following the said decision of the Tribunal in the case of Kotak Securities Ltd. (supra), we uphold the impugned order of the ld. CIT(A) giving relief to the assessee on this issue and dismiss ground No. 1 to 7 of Revenue s appeal. 5. Ground No. 8 to 12 raised by the Revenue in this appeal involve a common issue relating to disallowance of Rs. 2,73,693/- made by the A.O. on account of penalty imposed by the stock exchange which stands deleted by the ld. CIT(A). 6. We have heard the arguments of both the sides and also perused the relevant material on record. It is observed that a similar issue had come up for 2

5 3 ITA 6459/M/08 & CO 204/M/09 The Stock & Bond Trading Co. consideration before the co-ordinate Bench of this Tribunal in the case of ITO vs. V.R.M. Share Broking Pvt. Ltd., 27 SOT 469 wherein it was held that the penalty for failure of margins imposed by SEBI on share brokers by various notifications being risk management oriented, payment towards such penalty does not attract proviso to section 37(1) which is aimed at providing deterrence for infraction of laws of the country. To the similar effect in the decision of Chandigarh Bench of the ITAT in the case of Master Capital Services Ltd. Vs. DCIT, 108 TTJ 389 wherein it was held that fines and penalties paid by the assessee to NSE for trading beyond exposer limit, late submissions of margin certificates and delay in making deliveries of shares due to deficiencies are payments made in regular course of business and not for infraction of law as envisaged in proviso to section 37(1). In our opinion, these decisions of the Tribunal are squarely applicable to the issue under consideration and respectfully following the same, we uphold the impugned order of the ld. CIT(A) deleting the disallowance made by the A.O. on account of penalty paid by the assessee to BSE on violation of the bye laws of the stock exchange. Ground No. 8 to 12 of Revenue s appeal are accordingly dismissed. 7. As regards the C.O. filed by the assessee, we may note at the outset that there is a delay of 128 days on the part of the assessee tin filing the said C.O. In this regard, an Affidavit of partner of the assessee firm is filed before us explaining the reasons for the said delay and after having heard the arguments of both the sides thereon, we are satisfied that there was a sufficient cause which prevented the assessee from filing the C.O. in the specified time before the Tribunal. The delay in filing the said C.O. has therefore been condoned by us and the same is being disposed of on merits. 8. After considering the rival submissions and perusing the relevant material on record, it is observed that the solitary issue raised by the assessee in its C.O. relating to disallowance of transaction charges paid to stock exchange is also squarely covered in favour of the assessee by the decision of co-ordinate bench of this Tribunal in the case of Kotak Securities Limited reported in 25 SOT 440 wherein it was held that the transaction fees paid to stock exchange by its members on the basis of volume of transactions is payment for use of facilities provided by the stock exchange and not for any services, either technical or managerial. It was held that the provisions of Section 194J thus are not attracted to the payment of transaction fees and no disallowance of such payment could be made by invoking section 40(a)(ia). Respectfully following the said decision of the Tribunal, we set aside the impugned order of the ld. CIT(A) on this issue and direct the A.O. to delete the disallowance made on account of transaction charges by invoking the provisions of section 40(a)(ia). The C.O. filed by the assessee is accordingly allowed. 3

6 4 ITA 6459/M/08 & CO 204/M/09 The Stock & Bond Trading Co. 9. In the result, appeal of the Revenue is dismissed whereas the C.O. of the assessee is allowed. Order pronounced on 11 th February, Sd/- (N.V. VASUDEVAN) JUDICIAL MEMBER sd/- (P.M. JAGTAP) ACCOUNTANT MEMBER Mumbai, dated 11 th February, RK Copy to 1. The appellant 2. The Respondent 3. The CIT(A) - IV, Mumbai 4. The CIT, - 4, Mumbai 5. The DR Bench, E 6. Master File // Tue copy// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI 4

7 1 `IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E BEFORE SHRI D. MANMOHAN, V.P. AND SHRI R.K. PANDA, A.M. ITA No. 6562/Mum/2006 Assessment years D.C.I.T. Range -4(1), 6 th floor, R. No. 640, Aayakar Bhawan, MUMBAI Applicant Vs. M/s Emkay Share & Stock Brokers Pvt. Ltd., 4D, 4 th Floor, Hamam House, Ambalal Doshi Marg, Fort, Mumbai 23. PAN AAACE0994L Respondent ITA No. 6741/Mum/2006 Assessment years M/s Emkay Share & Stock Brokers Pvt. Ltd., 4D, 4 th Floor, Hamam House, Ambalal Doshi Marg, Fort, Mumbai 23. PAN AAACE0994L Applicant Assessee by Respondent by Vs. D.C.I.T. Range -4(1), 6 th floor, R. No. 640, Aayakar Bhawan, MUMBAI Respondent Shri Sanjeev M. Shah Ms. Ashima Gupta PER R.K. PANDA A.M. ORDER The above cross appeals are directed against the order dt of the CIT(A)- IV, Mumbai relating to A.Y These appeals were heard together and are being disposed of by this common order for the sake of convenience. ITA No. 6562/Mum/2006 (By Revenue)

8 2 2. In grounds of appeal No. 1, the Revenue has challenged the order of the ld. CIT(A) in deleting the addition of ` 3,16,582/- being depreciation on BSE/NSE Stock Exchange Membership Card. 3. After hearing both the sides, we find the above issue stands covered in favour of the assessee and against the Revenue by the decision of Hon ble Supreme Court in the case of Techno Shares and Stocks Ltd. reported in 327 ITR 323 wherein it has been held that depreciation is allowable on the cost of the Membership Card u/s 32(1)(ii) of the Income Tax Act, Grounds of appeal No. 1 raised by the Revenue is therefore dismissed. 4. In grounds of appeal No. 2, the Revenue has challenged the order of the ld. CIT(A) in deleting the disallowance of ` 17,217/- on account of penalty/fine paid to BSE/NSE of India for infringement of statutory law since SEBI is a statutory body. 5. After hearing both the sides, we find the A.O. disallowed an amount of ` 17,217/- paid to BSE/NSE on the ground that the same has been paid as penalty/fine for infringement of statutory law since SEBI is a statutory body. On appeal, the ld. CIT(A) deleted the disallowance on the ground that the same has been made for violation of regulations regarding procedures to be followed for entering into share transaction. These payments were just compensatory in nature and there is no infringement of any law. We find similar issue had come up before the Tribunal in assessee s own case for A.Y and the Tribunal vide order dated 23 rd July, 2008 in ITA No. 438/Mum/06 has dismissed the appeal filed by the Revenue. Respectfully following the decision of the Tribunal in assessee s own case for A.Y and in absence of any contrary decision brought to our notice by the ld. D.R., the ground raised by the Revenue is dismissed.

9 3 6. In grounds of appeal No. 3, the Revenue has challenged the order of the ld. CIT(A) in deleting the addition of bad debts of ` 6,59,780/- made by the A.O. 7. After hearing both the sides, we find the A.O. disallowed an amount of ` 6,59,780/- claimed by the assessee as bad debts on the ground that the assessee could not prove that the debts has become really bad and the same irrecoverable within the meaning of section 36(1)(vii) of the Act. He also held that merely writing off an amount from the books of account did not make the same as eligible for deduction. Further, the amount written off also included the principal amount of purchase consideration which otherwise was also not eligible for deduction within the meaning of provisions of sub-section (ii) of section 36(1) as the same was not accounted for while computing the income for A.Y He also rejected the alternative claim of business loss as made by the assessee. In appeal, the ld. CIT(A) relying on the decision of the Tribunal in the case of DCIT vs. V. Vrijlal Lallubhai & Sons, deleted the addition for which the Revenue is in appeal before us. 8. After hearing, both the sides, we find the issue stands covered in favour of the assessee and against the Revenue by the decision of the Special Bench of the Tribunal in the case of Shreyas S. Morakhia reported in 131 TTJ 641 wherein it has been held that amount receivable by the assessee, who is a share broker, from his clients against the transactions of purchase of shares on their behalf constitutes debt which is a trading debt. It was also held that the brokerage/commission income arising from such transactions very much forms part of the said debt and when the amount of such brokerage/commission has been taken into account in computation of income of the assessee of the relevant previous year or any earlier year, it satisfies the condition stipulated in section 36(2)(i) and the assessee is entitled to deduction u/s 36(1)(vii) by way of bad debts after having written of the said debts from his books of account as irrecoverable. Respectfully following the decision of the Special Bench of the

10 4 Tribunal and in absence of any contrary decision brought to our notice by the ld. D.R., we do not find any infirmity in the order of the ld. CIT(A) in deleting the addition made by the A.O. accordingly dismissed. 9. Ground No. 4 by the Revenue reads as under:- The ground raised by the Revenue is On the facts and in the circumstances of the case and in law, the ld. CIT(A) has erred in directing the A.O. to allow the credit for the TDS of ` 1,15,585/-, when out of the corresponding dividend income of ` 11,06,551/- an amount of ` 10,27,400/- was remitted by the assessee to its clients and only ` 79,150/- was assessed in the hands of the assessee. 10. Facts of the case in brief are that during the assessment proceedings, the A.O. noted that the assessee had claimed credit for tax deducted at source of ` 1,15,585/- on dividend amounting to ` 11,06,551/-. However, the assessee has shown ` 79,150/- for taxation in its hands since it had paid dividend of ` 10,27,401/- to the clients to whom the shares actually belong. According to the A.O. credit for TDS cannot be allowed to any person other than to whom the income actually belongs in view of provisions of section 199 of the Act. He, therefore, granted TDS credit of ` 8310/- only i.e. to the extent of dividend of ` 79,150/- actually shown by the assessee In appeal, the ld. CIT(A) directed the A.O. to delete the addition by holding as under:- I have considered the submissions of the appellant and find merit in the same. What is to be assessed is the income derived from dividend. Even if for a moment, it is presumed that the total income from dividend amounting to ` 11,06,551/- was to be shown by the appellant for claiming the credit of TDS thereon, from the details filed it is clear that ` 11,06, were shown as received by the appellant. Only ` 10,27, were remitted to the clients which have been rightfully reduced from its income. Thus, only an amount only a difference of ` 79, remained which was shown by the appellant as income. Therefore, the total of TDS of ` 1,15, as well as the net dividend was shown as income. As such, no addition was called for by the A.O. The addition made is deleted.

11 Aggrieved with such order of the ld. CIT(A), the Revenue is in appeal before us. 11. After hearing both the sides, we find no infirmity in the order of the ld. CIT(A). Admittedly, out of the total dividend of ` 11,06,551.52, the assessee has refunded dividend of ` 10,27, to the clients and thereby it had offered net dividend amount for taxation along with TDS. The ld. D.R. could not controvert the findings given by the ld. CIT(A). There would have been no material difference if the assessee had shown the gross dividend in the credit side and dividend paid in the debit side. The order of the ld. CIT(A) being in order is accordingly upheld and the ground raised by the Revenue is accordingly dismissed. 12. Grounds of appeal No. 5 & 6 are general in nature hence dismissed. ITA No. 6741/Mum/2006 (By Assessee) 13. Grounds of appeal No. 1 to 4 read as under:- 1) The Learned Commissioner of income-tax (Appeals) has grossly erred in confirming the action of Assessing Officer is not setting off loss on sale of investments of ` 41,35,004/- against gain in shares of ` 37,30,171/- under the provisions of Sections 73 of the income Tax Act, 1961 both being consistently treated at par as speculation. 2) The Learned Commissioner of income-tax (Appeals) has further erred in confirming the change in the opinion of Assessing Officer for not applying the explanation to section 73 to all the transactions in relation to shares whether of trading, speculation or investment which the assessee has been following consistently from inception of the company and taxing capital gains separately and taking it out from the purview of explanation to section 73. 3) The Learned Commissioner of income-tax (Appeals) has further erred in not treating the gain in derivative transactions as

12 6 capital gains and not setting it off against capital gains in shares and the reasons assigned by him in doing so are wrong and are contrary to the provisions of Income Tax Act, 1961 and rules made thereunder. 4) Consequently having confirmed the change in opinion on tax treatment on capital gains, the Commissioner of Income tax (Appeals) has further confirmed the additions of ` 1,53,369/- by treating it as short term capital gain Facts of the case in brief are that the assessee is a Member of both BSE and NSE and is carrying on the business activity in secondary as well as primary market. During the course of assessment proceedings, the A.O. noted that the assessee has made profit in trading in shares/derivatives of ` 37,30,171/-. The assessee has set off this profit against loss on sale of investment amounting to ` 41,35,004/-. On being questioned by the A.O., it was submitted by the assessee that in view of provisions of section 73, the business of purchase and sale of shares, irrespective of their treatment in the books of account, shall be treated as speculation business. Correspondingly, the loss on sale of investment could be treated as business loss eligible to be set off against business income However, the A.O. was not satisfied with the explanation given by the assessee. According to him, the disposal of shares earlier held by the assessee as investment cannot be brought under the ambit of share transaction covered by explanation to sec. 73 of the Act. He, accordingly, adopted the income of the assessee on account of profit in shares/derivatives transactions at ` 37,30,171/- and disallowed the claim of set off of loss of sale of investments of ` 41,35,004/ In appeal, the ld. CIT(A), upheld the action of the A.O.. While doing so, he noted that income or loss from investment in capital assets is governed under the provisions of sections 45 to 55A of the Act and such income or loss may be long term or short term. There are specific provisions in the Act

13 7 governing the set off of such losses which are distinct from other business losses. Even if in the earlier years the assessee s contention had been accepted, it does not follow that the claim contrary to the provisions of law should be accepted in every year since principle of res judicata does not apply to the provisions of Income Tax Law. Since the assessee was not able to make out the case for set off of investment loss against business loss, the A.O. is justified in denying the set off As regards the alternative plea of the assessee that such loss, if treated as capital loss, may be allowed to be set off against the income from derivatives treating the same also as capital gain, he held that this claim also cannot be allowed as in derivative also the income cannot be treated to be a capital gain governed by section 45 to 55A of the Act. According to him, derivatives or futures and options are not capital assets nor does the transaction in them results in any physical delivery. These transactions are totally speculative in nature. Since the transactions made in shares held as investment also included shares held for less than one year i.e. short term capital asset, the profit therefrom had to be taken as short term capital gain which could not be adjusted against long term capital loss as per provisions of law. He, accordingly, upheld the action of the A.O. in bringing to tax of ` 1,53,369/ Aggrieved with such order of the ld. CIT(A), the assessee is in appeal before us The ld. Counsel for the assessee referring to the statement of computation of income for A.Y , a copy of which is placed at paper book page 59 to 61, submitted that the assessee had disclosed the taxable speculation income at ` 49,81,851/-. Referring to the computation statement for A.Y placed at paper book page 67, he submitted that the assessee has disclosed speculation income of ` 452,605/-. Referring to the copy of the

14 8 assessment order passed u/s 143(3) for A.Y and , he submitted that the A.O. has accepted such speculation income. Even in subsequent A.Y. i.e. for A.Y also the A.O. has accepted the speculation income. He submitted that from A.Y onwards the assessee has never offered capital gain. The assessee being a share broker offered income from sale of shares on account of clients as well as on its own account as business income although the shares were shown as investment in the balance sheet since it has to be treated as adventure in nature of trade. Referring to a number of decisions, he submitted that entries in the books of account are not conclusive. He submitted that the principal business of the assessee is brokerage. Referring to the letter addressed to CIT(A) (copy of which is placed at paper book page 28) he submitted that the various submissions filed before him were not at all considered by him properly. He submitted that no one has accepted as to what are the parameters to be followed. Referring to the decision of the Hon ble jurisdictional High Court in the case of CIT vs. Gopal Purohit reported in 122 TTJ 87, he submitted that Rule of Consistency should be followed and the assessee should be allowed to set off loss on sale of investment ` 41,35,004/- against gain in shares of ` 37,30,171/-. Referring to the decision of the Full Bench of the Hon ble Bombay High Court in the case of CIT vs. Shree Nirmal Commercial Ltd. reported in 213 ITR 361, the ld. Counsel for the assessee drew the attention of the Bench to the following observations:- To wriggle out of this situation, an attempt is made to contend on behalf of the Revenue that there is no principle of res judicata applicable in the matter of assessment under the Income-tax Act. There is no doubt that the said contention is legally sound. However, at the same time, Shri Dastur, learned counsel appearing for the assessee, has invited our attention to a decision of our court in H. A. Shah and Co. v. CIT [1956] 30 ITR 618, wherein Chagla C. J. held that the effect of revising an earlier decision should not lead to injustice and the court must always be anxious to avoid injustice being done to the assessee and, therefore, the present case is not a fit case for which the issue referred by the Division Bench to the Full Bench should be gone into. It is further rightly contended by Shri Dastur that the Department having accepted the decision, there is no

15 9 occasion to take a different view. We do feel that there is considerable force in the argument of Shri Dastur. Having urged earlier that the income in the earlier assessment years was income from business or trade, it would not be proper to allow the Department to completely turn around and now contend that the income of the assessee is taxable under the head "House property" so as to disallow the deductions claimed by the assessee in respect of interest paid on the non-refundable deposits of the shareholders either under section 28 or section 37 of the Income-tax Act, The income of the assessee must be treated as income from trade or business He accordingly submitted that since the Revenue has all along accepted the speculation income of the assessee for different assessment years u/s 143(3) assessment in both preceding and succeeding years, therefore, the Revenue cannot take a different view for this particular year. He also relied on various decisions as per paper book filed. 14. The ld. D.R., on the other hand, relied on the order of the ld. CIT(A). He submitted that the assessee had opportunity before the A.O. as well as CIT(A) to explain his case However, he could not explain it properly. The Tribunal in assessee s own case for A.Y while deciding the issue had not gone into the facts on this issue. He accordingly submitted that the order of the ld. CIT(A) on this issue be upheld The ld. Counsel for the assessee in the rejoinder relied on the decision of the Hon ble Supreme Court in the case of Radhasoami Satsang vs. CIT reported in 193 ITR 321 and submitted that where a fundamental aspect permeating through the different assessment years has been found as a fact one way or the other as the parties have allowed that portion to be sustained by not challenging the order, it would not be at all appropriate to allow the position to be changed in a subsequent year.

16 After hearing both the sides, we are of the considered opinion that the matter requires fresh adjudication at the level of the A.O. The assessee undisputedly had shown income from sale of shares and had also incurred loss on shares held by it as investment. From the various submissions made by the ld. Counsel for the assessee, we find that the assessee all along was showing speculative income which has been accepted by the Department in 143(3) assessments. However, whether during those years, the assessee had also sold some of the shares shown in the Balance sheet under the head investment and the treatment thereof by the A.O. needs to be verified at the level of the A.O. If in those years the Revenue has accepted such gain or loss arising on account of sale of share shown as investment in the Balance Sheet as business income/loss, the A.O., in our opinion, should not take an altogether different view during this year. Although principles of res judicata do not apply to Income Tax proceedings since every A.Y. is separate and distinct, however, the rule of Consistency also cannot simply be given a go-bye. In our opinion, if the Department has accepted in the earlier assessment years that the income from sale of shares shown in the Balance sheet under the head investment as business income/loss, it would not be proper on the part of the Department to completely turn around and take an altogether different view by treating the same as capital gain. We, therefore, restore the issue to the file of the A.O. with the direction to decide the issue afresh in the light of our above observations and in accordance with law after giving due opportunity of being heard to the assessee. We hold and direct accordingly. The grounds of appeal No. 1 to 4 are accordingly allowed for statistical purpose. 16. Ground No. 5 by the assessee reads as under:- The Learned Commissioner of income-tax (Appeals) has further erred in confirming the additions of ` 7,96,255/- being advances not recoverable written off and the reasons assigned by him in doing so are wrong and are contrary to the provisions of Income Tax Act, 1961 and rules made thereunder.

17 Facts of the case in brief are that the assessee had written off an amount of ` 7,96,255/- as bad debts being loan written off. On being questioned by the A.O., it was submitted that the assessee company during the course of business activity had advanced loan to Mr. Yogesh R. Choksey which was in operation from April, 1996 onwards. The loan was advanced as well as received according to business need of both sides. The last repayment was in February, 2000 leaving a debit balance of ` 7,96,255/- as on 31 st March, The party made further repayment in next year but the cheque was bounced. Since the chances of recovery were quite negligible, the assessee company during the impugned A.Y. wrote off the entire amount as not recoverable and the same was claimed as business loss u/s 28 of the Act However, the A.O. did not accept the contention of the assessee. He noted that non-recovered debt cannot be treated as a bad debt u/s 37(1)(vii) of the Act since the amount has not been offered for taxation in any earlier years as income of the assessee. Further, the loss cannot be treated as business loss for A.Y since the loss does not pertain to the year. He accordingly made addition of ` 7,96,255/-. In appeal, the ld. CIT(A) upheld the action of the A.O. for which the assessee is in appeal before us After hearing both the sides, we find no infirmity in the order of the ld. CIT(A). Admittedly, the provisions of section 37(1)(vii) r.w.s. 36(2) are not complied with. Therefore, the same cannot be allowed as bad debts. Further, the amount also cannot be allowed as business loss since the same relates to a different assessment year and does not relate to the impugned assessment year. We, therefore, find no infirmity in the order of the ld. CIT(A) in upholding the action of the A.O. The ground raised by the assessee is accordingly dismissed. 17. Ground No. 6 by the assessee reads as under:-

18 12 The Learned Commissioner of income-tax (Appeals) is further erred in confirming the additions of ` 43,642/- on account of software expenses and the reasons assigned by him in doing so are wrong and are contrary to the provisions of Income Tax Act, 1961 and rules made thereunder Both parties fairly agreed that the issue needs fresh adjudication by the A.O. in the light of the decision of the Special Bench of the Tribunal in the case of Amway (India) Ltd. reported in 111 ITD 112. We, therefore, restore this issue to the file of the A.O. for fresh adjudication in the light of the decision cited supra and in accordance with law after giving due opportunity of hearing to the assessee. We hold and direct accordingly. The ground raised by the assessee is accordingly allowed for statistical purpose. 18. In the result, both the appeals are partly allowed for statistical purpose. Order pronounced on Sd/- (D. MANMOHAN) VICE PRESIDENT sd/- (R.K. PANDA) ACCOUNTANT MEMBER Mumbai, dated 15 th June, RK Copy to 1. The appellant 2. The Respondent 3. The CIT(A) IV, Mumbai 4. The CIT- 4, Mumbai 5. The DR Bench, E 6. Master File // Tue copy// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI

19 13 Date Initials 1 Draft dictated on Sr. PS 2 Draft placed before the Author , 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

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `F : NEW DELHI BEFORE SHRI G.E. VEERABHADRAPPA, VICE PRESIDENT AND SHRI C.L.SETHI, JUDICIAL MEMBER.

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