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TMI Blog2016 (12) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... A.O. erred in law and on facts in rejecting the claim of the appellant for rebate u/s 88E for a sum of Rs. 3,33,568/-. The learned C1T(A) erred in law and on facts in confirming the same. Your appellant submits that in the facts and circumstances of the case, the entire amount of rebate of Rs. 3,33,568/- is allowable to the appellant u/s 88E and the same may please be directed to be allowed. Your appellant prays for leave to add, alter and/or amend all or any of the grounds before the final hearing of appeal. 3. Briefly stated facts of the case are that assessee is a private limited company engaged in the business of share broking, depository services and trading shares and securities. Return of income was e-filed on 30.9.2008 declaring t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness or profession arising from taxable security transaction and therefore, ld. CIT(A) erred in not allowing the claim of rebate u/s 88E of the Act. Ld. AR referred and relied on the decision of the Tribunal, Mumbai Bench in ITA No.2138/Mum/2010 in the case of DCIT vs. M/s Envision Investment & Finance Pvt. Ltd. vide order dated 7.8.2015 judgment of Hon. Bombay High Court in the case of CIT vs. Manish D. Innani 59 taxmann.com 230 (Bombay) and the decision of the Tribunal, Mumbai Bench in the case of Shri Manish D. Innani vs. ACIT pronounced on 1/8/2012 wherein similar facts were adjudicated and the decision was given in favour of assessee. 6. On the other hand, ld. DR supported the orders of lower authorities. 7. We have heard the rival c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 88E of the Act at Rs. 3,33,568/-. Assessing Officer finalized the assessment denying rebate u/s 88E of the Act with the observation that there is a net speculation loss shown by the assessee whereas assessee is contending that it had a positive income speculation income from transaction subject to STT at Rs. 39,54,393/- and overall also there is a positive income from business and profession at Rs. 84,80,457/-. Ld. AR further contended that merely for reducing speculation income by diminishing value on the shares held as stock in trade leading to a net speculation loss cannot deprive the assessee from claiming rebate u/s 88E of the Act. We further observe that similar types of facts wherein assessee had a positive income from transactions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee in the previous year included the income from taxable security transactions. The requirement under sub-section (1) of section 88E on this count was fully satisfied. The only issue was how this deduction and in terms of the provision has to be computed. The Assessing Officer has ignored completely the quantum of income from taxable securities transactions, the tax that is leviable thereon and which has to be deducted in terms of sub-section (2) of section 88E. So long as the stipulation under sub-section (2) is adhered to and followed, namely, the amount of income-tax on the income arising from the taxable securities transactions referred to in subsection (1), shall be equal to the amount calculated by applying the average rate of incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en to take into consideration the brought forward losses. It is the taxable securities transactions, the income derived from such taxable securities transactions and they being taxable, the tax paid thereon, which has to be deducted. That is how the section has been understood and applied to the given facts and circumstances. We do not think that any larger controversy arises for determination and consideration in this appeal. We are not in agreement with Mr. Malhotra that the decision of the Tribunal's co-ordinate Bench in Oasis Securities Lid (supra) has been distinguished but still the deduction has been granted. In paragraph 6.1, the Tribunal concluded that the assessee is entitled to the rebate of Rs. 1.01 crores under section 88E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 88E shall be allowable in, or after, the assessment year beginning on the 1st day of April, 2009, i.e., because a deduction which is contemplated by this provision has been now made admissible elsewhere. In these circumstances, the appeal raises no substantial question of law. It is dismissed. More so when the Tribunal's order has been given effect to by the Assessing Officer. He has followed his view taken in the assessment year 2006-07, which is also following the Tribunal's order. No costs. 8. We further observe that in the case of DCIT vs. M/s Envision Investment & Finance Pvt. Ltd. (supra) wherein also assessee dealt in shares and securities incurred loss on trading in securities earned profit on sale of shares at Rs. 24,25, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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