2016 (6) TMI 880 - AT - Income Tax

Eligibility to rebate claim u/s. 88E - Held that - The assessee s self transactions are to the tune of 41% and brokerage/clients transactions pertained to 59%. The proposition of law laid down by this Coordinate bench in the case of M/s. Millennium Stock Broking (P) Ltd., 2015 (12) TMI 141 - ITAT KOLKATA , if we go by that then at the best revenue can disallow rebate u/s. 88E of the Act qua brokerage income at 10%, both on indirect expenses as well as interest - Decided partly in favour of assessee

Summary

Issues:
1. Disallowance of rebate claimed by the assessee u/s. 88E of the Income Tax Act.

Analysis:

The Appellate Tribunal ITAT Kolkata dealt with two appeals by the assessee arising from separate orders of CIT(A), Central-II, Kolkata. The assessments were framed by DCIT, Central Circle-X, Kolkata under sections 153C/143(3) of the Income Tax Act for Assessment Years 2007-08 and 2008-09. The common issue in both appeals was against the order of CIT(A) restricting the disallowance made by the Assessing Officer in relation to the rebate claimed by the assessee under section 88E of the Act.

The assessee had claimed a rebate under section 88E against income from business of shares and securities chargeable to Securities Transaction Tax (STT). The Assessing Officer disallowed the rebate to the extent of ?6,87,921, stating that expenses were not allocated correctly. The CIT(A) restricted the disallowance to ?2,66,654, emphasizing the proper allocation of expenses based on turnover. The Tribunal considered the allocation of expenses and the nature of the transactions. Referring to a previous case, it was concluded that 41% of the transactions were the assessee's own, while 59% were brokerage/client transactions. Following this, the Tribunal allowed a partial disallowance of the rebate at 10% on indirect expenses and interest, in line with the precedent set by the earlier case.

The Tribunal noted that the nature of expenses remained fixed and did not change with the volume of self-business. The Tribunal agreed that 25% of establishment expenses should be allocated to the assessee's own transactions, while 75% should be allocated to client transactions (non-STT income). The dispute primarily revolved around indirect expenses and interest income allocation. Ultimately, the Tribunal decided to allow a 10% disallowance of the rebate concerning brokerage income, considering the proportion of self-transactions and client transactions.

In conclusion, the Tribunal partly allowed the appeals of the assessee, emphasizing the correct allocation of expenses and the proportion of self-transactions to client transactions. The decision was based on a detailed assessment of the facts and circumstances, ensuring a fair and reasonable disallowance of the rebate claimed under section 88E of the Income Tax Act.