Arcadia Share & Stock Brokers Pvt. Ltd vs. DCIT (ITAT Mumbai)

DATE: December 22, 2014 (Date of pronouncement)
DATE: December 23, 2014 (Date of publication)
AY: 2006-07
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S. 40(a)(ia): Merilyn Shipping 146 TTJ 1 (Vizag) has binding effect in view of the SLP dismissal & the clarification in Janapriya Engineers (AP HC) and so amounts already paid during the year cannot be disallowed

The Tribunal had to consider whether in view of the Special Bench verdict in Merilyn Shipping & Transport 146 TTJ 1 (Vizag), a disallowance u/s 40(a)(ia) could be made in respect of the amounts that have already been paid during the year and are not “payable” as of 31st March. HELD by the Tribunal:

In the light of the decision rendered by Hon’ble Supreme Court in the form of dismissal of Revenue’s SLP in the case of Vector Shipping Services (P) Ltd. Section 40(a)(ia) is not applicable with reference to payments already made since the expression ‘payable’ has to be satisfied for invoking provisions of section 40(a)(ia). The fact that the order of the Special Bench delivered in the case of Merilyn Shipping & Transports has been kept in abeyance by the Andhra Pradesh High Court and that the Gujarat High Court has taken a different view is not relevant. In Janapriya Engineers Syndicate (I.T.T.A. No. 352 of 2014 dt. 24.06.2014) the Andhra Pradesh High Court has clarified the issue of interim stay granted by it in the case of Merilyn Shipping & Transports and held that until and unless the decision of the Special Bench is upset by the High Court, it binds smaller Bench and coordinate Bench of the Tribunal. From the clarification issued by the High Court, it is clear that until and unless the decision of Marilyn Shipping & Transport is reversed by the Court, it is binding on all the benches of the Tribunal. We find that the Hon’ble Court has held that judicial discipline mandates that the decision of the special bench has to be followed by other benches. As on today, the stay order granted by the Hon’ble Court has been vacated and the order of the special bench is binding on other benches of the Tribunal. Therefore, respectfully following the same, we hold that no disallowance u/s 40(a)(ia) can be made for amounts already paid during the year and which are not payable as of 31st March (Amit Naresh Shah (ITAT Mumbai) followed).

Note: In ITO vs. M/s.Theekathir Press (ITAT Chennai) it was held that as there is a conflict of opinion amongst High Courts, the view favourable to the assessee should be taken. However, a contrary view has been taken in Rishti Stock and Shares (ITAT Mumbai), M/s Orchid Marine vs. ITO (ITAT Cochin) & The Ramanthali Service Co-operative Bank Ltd (ITAT Cochin)
One comment on “Arcadia Share & Stock Brokers Pvt. Ltd vs. DCIT (ITAT Mumbai)
  1. Shyamal Mukherjee says:

    Want to know about derivative transaction under recognized stock exchange. As per income tax act u/s 43(5)(e)income from trading in commodity derivatives is business income and the loss in this respect is not speculative loss so why the loss in respect of trading in commodity derivatives can not be adjusted with business loss ? Will it be adjusted with speculation profit ? What will be the effect in income tax return ?

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