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D C I T - 4(1) Room No. 640, 6th Floor ayakar Bhavan, M.K. Road Mumbai 400020 Vs. M/s. Dindayal Biyani Stock Brokers Ltd. 417, Stock Exchange Tower Dalal Street, Fort, Mumbai 400023
May, 29th 2015
                  IN THE INCOME TAX APPELLATE TRIBUNAL
                             "D" Bench, Mumbai

                    Before Shri D. Manmohan, Vice President
                   and Shri R.C. Sharma, Accountant Member

                            ITA No. 5844/Mum/2013
                            (Assessment Year: 2007-08)

  D C I T - 4(1)                   M/s. Dindayal Biyani Stock
  Room No. 640, 6th Floor          Brokers Ltd.
                              Vs.
  Àayakar Bhavan, M.K. Road        417, Stock Exchange Tower
  Mumbai 400020                    Dalal Street, Fort, Mumbai 400023
                          PAN - AAACD5066E
            Appellant                          Respondent

                      Appellant by:      Shri Love Kumar
                      Respondent by:     Shri J.P. Bairagra

                      Date of Hearing:       28.05.2015
                      Date of Pronouncement: 28.05.2015


                                     ORDER

Per D. Manmohan, V.P.

      This appeal by the Revenue is directed against the order passed by
CIT(A)-8, Mumbai and it pertains to A.Y. 2007-08.




2.        Following grounds were urged before us:

     "1. On the facts and in the circumstances of the fact and in law, the
         Ld. CIT(A) erred in allowing the appeal of the assessee relying on
         the decision of the Karnataka High Court in the case of M/s.
         Horizon Capital Ltd. which is not the jurisdictional one.
     2.     On the facts and in the circumstances of the fact and in law, the
            Ld. CIT(A) erred in allowing rebate u/s 88E which specifically deals
            with minimum alternative tax payable only in cases where tax
            otherwise payable is below 10% due to operation of all other
            provisions of Act, and such all other provisions includes 88E of the
            I.T. Act.
     3.     On the facts and in the circumstances of the case and in law, the
            impugned order of the Ld. CIT(A) is contrary to law and
            consequently merits to be set aside that of the Assessing Officer be
            restored."
                                       2                   ITA No. 5844/Mum/2013
                                             M/s. Dindayal Biyani Stock Brokers Ltd.

3.     Facts necessary for disposal of the appeal are stated in brief.
Assessee-company is a member of the Stock Exchange and engaged in the
business of share and stock broking and trading. Assessee-company was
dealing in shares and was allowed rebate under section 88E of the Act. After
allowance of rebate under section 88E, the net tax payable was determined
at `9,17,971/- under the normal provisions of the Act whereas the tax liability
of the assessee under section 115JB works out to `18,05,193/-.

4.     The AO, during the course of reassessment proceedings, was of the view
that the rebate under section 88E is not deductible from the tax liability
computed under the provisions of section 115JB of the Act and accordingly
completed the assessment.

5.     On an appeal filed by the assessee the learned CIT(A) observed that the
issue stands covered by the decision of the Hon'ble Karnataka High Court in
the case of M/s. Horizon Capital Ltd. 245 CTR 601 and accordingly allowed the
plea of the assessee. AO was directed to allow deduction to the assessee under
section 88E of the Act while computing tax liability under section 115JB of the
Act.

6.     Aggrieved, Revenue is in appeal before us. At the time of hearing the
learned counsel for the assessee submitted that the issue stands covered by
various decisions of the Tribunal as well as the decisions of the Hon'ble
Karnataka High Court and Hon'ble Delhi High Court (see paper book from
pages 13 to 35) and in the absence of any contrary decision on the above, the
view taken by the learned CIT(A) deserves to be upheld.




7.     The learned D.R. could not place any contrary decision on this point.

8.     We have heard the rival submissions and carefully perused the record.
The ITAT Mumbai Benches have consistently taken a view that rebate under
section 88E of the Act can be claimed by the assessee while computing tax
liability under section 115JB of the Act (DCIT vs. M/s. Archadia Share and
Stock Brokers P. Ltd., ITA No. 6500/Mum/2013 dated 26.03.2015 & ACIT vs.
M/s. Visaria Securities P. Ltd., ITA No. 2271/Mum/2013 dated 10.09.2013).
                                       3                    ITA No. 5844/Mum/2013
                                              M/s. Dindayal Biyani Stock Brokers Ltd.

Having regard to the circumstances of the case we uphold the order passed by
the CIT(A) and dismiss the appeal filed by the Revenue.

Order pronounced in the open court on 28th May, 2015.

                   Sd/-                                    Sd/-
              (R.C. Sharma)                          (D. Manmohan)
           Accountant Member                          Vice President

Mumbai, Dated: 28th May, 2015

Copy to:

   1.   The   Appellant
   2.   The   Respondent
   3.   The   CIT(A) ­ 8, Mumbai
   4.   The   CIT­ 4, Mumbai City
   5.   The   DR, "D" Bench, ITAT, Mumbai

                                                       By Order

//True Copy//
                                                   Assistant Registrar
                                           ITAT, Mumbai Benches, Mumbai
n.p.

 
 
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