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Income Tax Appellate Tribunal, MUMBAI BENCH “E”, MUMBAI
Before: SHRI RAJENDRA & SHRI SANJAY GARG
Per Sanjay Garg, Judicial Member:
The above titled two appeals have been preferred by the assessee against two separate orders both dated 04.01.2011 of the Commissioner of Income Tax (Appeals) [hereinafter referred to as the CIT(A)] relevant to assessment years 2004-05 & 2006-07. Since the facts and issues involved therein are identical in nature, hence the same are taken together for disposal by this common order.
The assessee in the appeal for A.Y. 2004-05 bearing and in the appeal for A.Y. 2006-07 bearing ITA No.2571/M/2011 has taken the following grounds of appeal:
Grounds of appeal in for A.Y. 2004-05:
“1. The learned Commissioner of Income Tax (Appeal) ['CIT(A)' for short] has erred on the facts and in law in holding that the asset required in the form of Technical Know-how in AY 2001-02 by the appellant was not entitle to depreciation amounting to Rs.3,07,6 17 in the present assessment year.
2. Without prejudice to the allowability of entire amount of Rs.1,70,00,000 in AY 2001 - 02 as revenue expenditure, the learned CIT(A) has erred on facts and in law in upholding that the sum of Rs. 1,70,00,000 paid in assessment year for AY 2001-02 and treated as payment towards acquisition of Intangible Asset in the assessment year for that year is not entitled to depreciation in the present assessment year.
3. Without prejudice to the allowability of entire amount of Rs. 5,00,000 in AY 2001-02 as revenue expenditure, the learned CIT(A) has errd on facts and in law in upholding that the appellant was not entitled to claim proportionate charges relating to this year on account of SEBI registration fees held to be deferred revenue expenses in the assessment order passed under section 143(3) for A.Y. 2001-02.
The order of the learned CIT(A) to the extent indicated above is contrary to facts, law and the principles of natural justice.
The above grounds are mutually exclusive and without prejudice to each other.
6. The appellant craves leave to add, alter, amend and or modify any of the grounds of appeal before or at any time of hearing.”
Grounds of appeal in for A.Y. 2006-07:
1. The learned Commissioner of Income Tax (Appeal) ['CIT(A)' for short] has erred on the facts and in law in holding that the asset required in the form of Technical Know- how in 2001-02 by the appellant was not entitle to depreciation amounting to Rs. 1,73,035 in the present assessment year.
2. Without prejudice to the allowability of entire amount of Rs. 1,70,00,000 in AY 2001- 02 as revenue expenditure, the learned CIT(A) has erred in not directing that the sum of Rs. 1,70,00,000 paid in assessment year for AY 2001-02 and treated as payment towards acquisition of Intangible Asset in the assessment year for that year is not entitled to depreciation in the present assessment year.
3. The order of the learned CIT(A) to the extent indicated above is contrary to facts, law and the principles of natural justice.
4. The above grounds are mutually exclusive and without prejudice to each other.
3 & 2571/M/2011 M/s. Ernst & Young Merchant Banking Service (P) Ltd., Formally known as “Ind Global Corporate Finance Ltd.) 5. The appellant craves leave to add, alter, amend and or modify any of the grounds of appeal before or at any time of hearing.”
A perusal of above grounds of appeal taken for both the assessment years under consideration reveals that ground Nos.1 & 2 respectively in both the appeals are identical in nature. The Ld. A.R. of the assessee has brought our attention to the applications moved by the assessee u/s. 158A both dated 01.07.2013 moved in relation to ground Nos.1 & 2 in both the appeals, wherein it has been stated that the issue involved in the present appeals taken vide ground Nos.1 & 2 are repetitive in nature and are presently pending before the Hon’ble Bombay High Court in cross appeals, one filed by the assessee and the other by the Revenue against the finding of Tribunal on the same issues in the earlier assessment year 2001-02. On the application of the assessee, a report from the A.O. u/s. 158A(2) was called upon. The A.O. has sent his report dated 06.05.2015 addressed to the Pr. CIT (Through Proper Channel) which has been further placed on record by the Ld. D.R. We have perused the report of the A.O. wherein the A.O. has stated that the issues taken vide grounds Nos.1 & 2 in both the assessee’s appeals before us for A.Y. 2004-05 & 2006- 07 are identical to the issues involved in the appeals of the assessee bearing of 2013 as well of the Revenue’s appeal bearing ITA (COD) No.255 of 2013 before the Hon’ble High Court in relation to A.Y. 2001-02.
4. In view of above report of A.O. and having regard to the facts and circumstance of the case, the application of the assessee u/s.158A is accepted and the ground Nos.1 & 2 in both the appeals of the assessee are disposed off with the observation that when the decision on the issues/question of law framed on these issues in the other case of the assessee for A.Y. 2001-02 become final, it shall be applied to the appeals of the assessee for the years under consideration and if so required, the assessee will be at liberty to move an application before the appropriate authority in this respect. The assessee shall not be entitled to further raise these questions in appeal or otherwise
4 & 2571/M/2011 M/s. Ernst & Young Merchant Banking Service (P) Ltd., Formally known as “Ind Global Corporate Finance Ltd.) before any higher appellate authority i.e. Hon’ble High Court or Hon’ble Supreme Court. As on today, the issue taken vide ground No.1 in the both the appeals is covered against assessee and issue raised vide ground No.2 relating to allowability of depreciation on non compete fees is covered in favour of the assessee by the decision of the Tribunal in the own case of the assessee for A.Y. 2001-02 vide order dated 31.08.2012. With the above observations ground Nos.1 & 2 in both the appeals are disposed of accordingly.
5. Ground No.3 in for A.Y. 2004-05 is relating to disallowance of proportionate charges on account of SEBI registration fees. At the outset, the Ld. A.R. of the assessee has stated that the Tribunal has allowed the entire expenditure for A.Y. 2001-02. Accordingly, this ground has become infructuous, so far as the year under consideration is concerned. In view of the above submissions of the Ld. A.R., ground No.3 in assessee’s appeal bearing ITA No.2570/M/2011 for A.Y. 2004-05 is dismissed having become infructuous.
The other grounds taken in both the appeals are general in nature and do not require any adjudication.
In view of our findings given above, both the appeals are disposed of accordingly.