Itxa/5486/2010 Of The Commissioner Of Income Tax - 4 Mumbai v. Angel Broking Ltd

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTIONINCOME TAX APPEAL NO.5486 OF 2010 Commissioner of Income Tax-4-Versus-M/s. Angel Broking Ltd. ..Appellant ..Respondent ........... Mr. Suresh Kumar with Ms. Padma Divakar for the Appellant.Mr. Sameer G. Dalal for the Respondent. ........... CORAM: S.C. DHARMADHIKARIAND B.P. COLABAWALLA, JJ. P.C.: DATE :- 17[th] June, 2014 1]This appeal challenges the order passed by the Income Tax Appellate Tribunal on 9[th] December, 2009 in Income Tax Appeal No.7031/MUM/2008. The assessment year in question is 2005-06. 2]We have carefully perused the memo of the appeal with all its annexures including the impugned order. Our attention has been invited and fairly by the counsel appearing for the parties to the two orders passed by this Court. The first one is in Income Tax Appeal(Lodging)No.475 of 2011 dated 28[th] July, 2011. That was in the case of the very assessee. Having perused that order and the order impugned in this appeal, we are of the opinion that the first question 1/3 which is re-framed and termed as a question of law stands answered against the revenue and in favour of the assessee by the order passed in Income Tax Appeal (Lodging) No.475 of 2011. The present appeal, therefore, does not raise any substantial question of law in relation to the controversy covered by the first question. 3]The two re-framed questions of law and termed as substantial read as under:- “(i) Whether, on the facts and in the circumstances of the case and in law, the Tribunal was right in holding that the amounts paid as BOLT Charges either to BSE or NSE do not represent the “fee paid for technical services” and accordingly, provisions of section 40(a)(ia) are not attracted?(ii)Whether, on the facts and in the circumstances of the case and in law, the Tribunal was right in holding that the amounts paid as Demat charges and other charges either to BSE or NSE do not fall within the ambit of section 194J nor 194C and accordingly, provisions of section 40(a)(ia) are not attracted?”case and in law, the Tribunal was right in holding that the amounts paid as BOLT Charges either to BSE or NSE do not represent the “fee paid for technical services” and accordingly, provisions of section 40(a)(ia) are not attracted?(ii)Whether, on the facts and in the circumstances of the case and in law, the Tribunal was right in holding that the amounts paid as Demat charges and other charges either to BSE or NSE do not fall within the ambit of section 194J nor 194C and accordingly, provisions of section 40(a)(ia) are not attracted?” 4]We have perused the order passed by the Tribunal impugned in this appeal. Our attention is invited to an order passed on 28[th] April, 2014 in 4]We have perused the order passed by the Tribunal impugned in this appeal. Our attention is invited to an order passed on 28[th] April, 2014 in Income Tax Appeal No.57 of 2011 by the Division Bench of this Court to which one of us is a party. That Division Bench dealt with similar questions and passed a detailed order setting aside identical conclusion of the Tribunal. The revenue, therefore, had succeeded in persuading this Court to quash and set aside the order of the Income Tax Appellate Tribunal and remit the appeal of the revenue back to its file for fresh disposal in accordance with law. Having perused the order passed by the Division Bench and the order passed by the Tribunal and impugned in this appeal, that we are of the opinion that, the order passed on 28[th] April, 2014 in the above Income Tax Appeal and pertaining to the same assessee covers the controversy completely. We, need not, therefore, assign independent reasons but allow this appeal in the very terms. The appeal, therefore, succeeds. The impugned order is quashed and set aside. The Income Tax Appeal stands restored to the file of the Tribunal for fresh disposal on merits in accordance with law and uninfluenced by its earlier observations and conclusion. All contentions are kept open. The impugned order is set aside partially. The appeal succeeds in part and in the above terms. (B.P.COLABAWALLA, J.) (S.C. DHARMADHIKARI, J.) wadhwa 3/3