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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 ..... Year 2008-09 against the order of ld. CIT(A)-III, Ahmedabad, dated 21.6.2013 in appeal no.CIT(A)- III/236/ACIT.Cir.3/12-13 arising out of the order u/s 143(3) of the IT Act, 1961 (in short the Act) framed on 9/12/2010 by ACIT, Circle-3, Ahmedabad. 2. Assessee has raised following ground of appeal :- 1. The learned A.O. erred in law and on facts in rejecting the claim of the appellant for rebate u/s 88E for a sum of ₹ 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 ₹ 3,33,568/- is allowable to the appellant u/s 88E and the same may please be directed to be allowed. Your appellant prays f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om income from sale of shares. Further for the purpose of section 88E income includes any profit and gains from business or profession which had arisen from taxable security transaction is ₹ 39,34,393/- and therefore, assessee was eligible u/s 88E of the Act. Ld. AR also submitted that rebate is allowable on income chargeable under the head profits and gains of business 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d loss from transaction of the commodities at ₹ 9,602/- and also reduced notional figure ₹ 74,66,955/- on account of diminishing value/write off of shares held as stock in trade and treating it as deemed speculation loss as a result of which under the head speculation income net loss of ₹ 35,32,164/- has been disclosed. Further out of the tax payable for the year assessee has claimed rebate u/s 88E of the Act at ₹ 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 ₹ 39,54,393/- and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), which is chargeable under the head Profits and gains of business or profession arising from taxable securities transactions. He, therefore, held that the .assessee is entitled to get the rebate under section 88E on the income of ₹ 3,34,49,474 but not on ₹ 4,95,93,132. 9. To our mind, all that the Tribunal has done is to take into account the volume of the securities transactions and which were taxable. The total income of the assessee 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 comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the assessee has complied with the proviso and the second proviso as well, namely, that the amount of deduction under this sub-section shall not exceed the amount of income-tax on taxable securities transactions computed in the manner provided in sub-section (2). To our mind, the Tribunal committed no error when it corrected the computation or calculation of deduction. There was no warrant in the light of the clear language of this provision then 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese circumstances and when the income from the securities transactions is taxable and offered to tax, the deduction in so far as that sum is concerned or quantum has been granted. We do not think that the Tribunal's order can be interfered with. The Tribunal's view is imminently possible in the backdrop of the facts and circumstances peculiar to the assessee. In any event by sub-section (3) of section 88E it has been clarified that no deduction under section 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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