Itxa/5558/2010 Of The Commissioner Of Income Tax 4 Mumbai v. Emkay Share And Stock Brokers P Ltd

sas IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.5558 OF 2010 The Commissioner of Income Tax-4, Mumbai ..Appellant. V/s. M/s. Emkay Share & Stock Brokers Pvt. Ltd. ..Respondent. Mr. Vimal Gupta for the appellant. Mr. Sanjiv M. Shah for the respondent. CORAM : J.P. DEVADHAR AND A.R. JOSHI, JJ. DATED : 18TH NOVEMBER, 2011 P.C. :- 1.Three questions of law are raised by the revenue in this appeal. 2.As regards the second question is concerned, counsel for the parties state that the same is covered by the decision of this Court in the case of The Commissioner of Income Tax-4 V/s. M/s. The Stock and Bond Trading Co. [Income Tax Appeal No.4117 of 2010] on 14[th] October, 2011 in favour of the assessee. Accordingly, the second question cannot be entertained. 2 itxa5558-10 3.As regards the third question is concerned, counsel for the parties state that the said question is answered against the revenue by the decision of this Court in the case of The Income Tax Commissioner V/s. Angel Capital & Debit Market Ltd. [Income Tax Appeal (L) No.475 of 2011] decided on 28th July, 2011. Hence the second question cannot be entertained. 4.The appeal is admitted on the first question which reads thus:- " Whether the Tribunal was justified in deleting the addition of Rs.72,99,116/- being transaction charges paid to stock exchange on the ground that the transaction fees paid to the stock exchange could not be said to be fees paid in consideration of stock exchange rendering any technical services to the assessee ? " 5.Counsel for the parties state that the said question is covered by the judgment of this Court in the case of CIT V/s. M/s. Kotak Securities Ltd. [Income Tax Appeal No.3111 of 2009] decided on 21st October, 2011. For the reasons stated in the aforesaid case, we hold that the transaction charges paid by the assessee to the stock exchange is coveredunder Section 194J of the Income Tax Act, 1961, but for the assessment year 2005-06 in question, the decision of the ITAT in holding that the assessing officer was not justified in invoking the provisions of Section 40(a)(ia) of the Income Tax Act, 1961 cannot be faulted. The appeal is disposed of accordingly with no order as to costs. (A.R. JOSHI, J.) (J.P. DEVADHAR, J.)