PERBON YARMANE (INDIA) LTD, MUMBAI v. ACIT 4(2), MUMBAI

ITA 2651/MUM/2010 | 2004-2005
Pronouncement Date: 18-03-2011 | Result: Partly Allowed

Appeal Details

RSA Number 265119914 RSA 2010
Assessee PAN AAACE3505D
Bench Mumbai
Appeal Number ITA 2651/MUM/2010
Duration Of Justice 11 month(s) 11 day(s)
Appellant PERBON YARMANE (INDIA) LTD, MUMBAI
Respondent ACIT 4(2), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 18-03-2011
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted C
Tribunal Order Date 18-03-2011
Assessment Year 2004-2005
Appeal Filed On 06-04-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C MUMBAI BEFORE SHRI N.V. VASUDEVAN (JM) & SHRI RAJENDRA SIN GH (AM) I.T.A.NO.2651/MUM/2010 (A.Y. 2004-05)) M/S. PREBON YAMANE (INDIA) LTD. 4 TH FLOOR MANECKJI WADIA BLDG. M.G. ROAD FORT MUMBAI-400 023. PAN: AAACE 3505 D VS. ASST.COMMR. OF INCOME-TAX-4(2) AAYKAR BHAVAN M.K. ROAD MUMBAI-400 020. APPELLANT RESPONDENT APPELLANT BY SHRI APURV GANDHI. RESPONDENT BY SHRI O. P. SHAMA. O R D E R PER RAJENDRA SINGH AM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 13-01- 2010 OF CIT(A)-8 MUMBAI FOR THE ASSTT. YEAR 2004- 05. THE ASSESSEE IN THIS APPEAL HAS RAISED DISPUTE ON TWO GROUNDS. 2. THE FIRST DISPUTE IS REGARDING ADDITION OF RS.11 51 367/- ON ACCOUNT OF DEPRECIATION ON NSE AND FEDAI MEMBERSHIP CARD. THE ASSESSEE HAD CLAIMED DEPRECIATION ON NSE CARD AND FOREIGN EXCHANGE DEALE R ASSOCIATION OF INDIA (FEDAI) MEMBERSHIP FEE TREATING THE SAME AS INTANGI BLE ASSETS UNDER THE PROVISIONS OF SEC. 32(1)(II) WHICH ALLOWS DEPRECIAT ION ON INTANGIBLE ASSETS SUCH AS KNOWHOW PATENTS COPYRIGHTS LICENCES FRANCHISEES OR ANY OTHER BUSINESS OR COMMERCIAL RIGHT OF SIMILAR NATURE. THE AO HOWEVER DID NOT ALLOW DEPRECIATION ON THE GROUND THAT THE ASSETS WERE NOT DEPRECIABLE AND THE ASSESSEE WAS NOT OWNER OF THE ASSETS. IN APPEAL THE CIT(A) FOLLOWI NG THE JUDGMENT OF THE HONBLE ITA 2651/M/10 PREBON YAMANE (I) LTD. 2 BOMBAY HIGH COURT IN THE CASE OF TECHNO SHARES AND STOCKS LTD. (323 ITR 69) DISALLOWED THE CLAIM OF DEPRECIATION AGGRIEVED BY WHICH THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 3. WE HAVE HEARD BOTH THE PARTIES PERUSED THE MATE RIAL AND CONSIDERED THE MATTER CAREFULLY. THE HONBLE SUPREME COURT IN THE CASE OF TECHNO SHARES AND STOCKS LTD. (327 ITR 323) HAVE NOT UPHELD THE VIEW TAKEN BY THE HONBLE BOMBAY HIGH COURT AND HAVE HELD THAT NSE/BSE CARD W AS AKIN TO LICENCES THUS INTANGIBLE ASSETS U/S.32(1)(II) OF THE ACT. ACCORDI NGLY THE HONBLE SUPREME COURT HELD THAT DEPRECIATION WAS ALLOWABLE. WE THEREFORE SET ASIDE THE ORDER OF CIT(A) AND ALLOW THE CLAIM OF DEPRECIATION IN THE CASE OF NSE CARD. AS REGARDS FEDAI MEMBERSHIP CARD WE FIND THAT THE SAME ISSUE HAD BE EN CONSIDERED BY THE TRIBUNAL IN THE ASSESSEES OWN CASE IN ITA NO. 2852 /MUM/2006 FOR THE ASSTT. YEAR 2003-04 IN WHICH THE TRIBUNAL RESTORED THE ISS UE TO THE FILE OF AO TO VERIFY IF FEDAI MEMBERSHIP WAS EQUIVALENT TO NSE CARD. WE TH EREFORE RESPECTFULLY FOLLOWING THE DECISION OF THE TRIBUNAL (SUPRA) RES TORE THIS ISSUE TO THE FILE OF AO FOR FRESH DECISION AFTER NECESSARY EXAMINATION AND AFTER ALLOWING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. THE SECOND DISPUTE IS REGARDING DISALLOWANCE OF RS.4 00 731/- BEING THE AMOUNT PAID TO SUPERANNUATION FUND. THE AO DISALLOW ED THE CLAIM ON THE GROUND THAT SUPERANNUATION FUND WAS NOT APPROVED. THE DISA LLOWANCE HAS BEEN CONFIRMED BY THE CIT(A) AGGRIEVED BY WHICH THE ASS ESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 5. WE HAVE HEARD BOTH THE PARTIES IN THE MATTER. WE FIND THAT THE SAME ISSUE HAD BEEN CONSIDERED BY THE TRIBUNAL IN THE ASSESSEE S OWN CASE FOR ASSTT. YEAR 2003-04 VIDE ITA NO. 2852/MUM/2006 IN WHICH THE ASS ESSEE CLAIMED THAT SUBSEQUENTLY APPROVAL HAD BEEN RECEIVED FROM CIT. THE TRIBUNAL THEREFORE RESTORED THE ISSUE TO THE FILE OF AO FOR RE-CONSIDE RATION OF THE CLAIM IN THE LIGHT OF ITA 2651/M/10 PREBON YAMANE (I) LTD. 3 APPROVAL RECEIVED AND AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE FACTS IN THIS YEAR ARE IDENTICAL. THEREFORE RE SPECTFULLY FOLLOWING THE DECISION OF TRIBUNAL (SUPRA) WE RESTORE THIS ISSUE TO THE F ILE OF AO FOR PASSING A FRESH ORDER AFTER NECESSARY EXAMINATION AND AFTER ALLOWIN G OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED IN TERMS OF THE ORDER ABOVE. ORDER PRONOUNCED ON THE 18TH DAY OF MARCH 2 011. SD/- SD/- (N.V. VASUDEVAN) (RAJENDRA SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI: 18TH MARCH 2011. NG: COPY TO : 1. ASSESSEE. 2. DEPARTMENT. 3. CIT(A)-8 MUMBAI. 4. CIT-4 MUMBAI. 5. DR C BENCH MUMBAI. 6. MASTER FILE. (TRUE COPY) BY ORDER ASST.REGISTRAR ITAT MUMBAI. ITA 2651/M/10 PREBON YAMANE (I) LTD. 4 DETAILS DATE INITIALS DESIGNA TION 1. DRAFT DICTATED ON 11-03-2011 SR.PS/ 2. DRAFT PLACED BEFORE AUTHOR 14-03-201 SR.PS/ 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/ AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/ 6. KEPT FOR PRONOUNCEMENT ON SR.PS/ 7. FILE SENT TO THE BENCH CLERK SR.PS/ 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9. DATE ON WHICH FILE GOES TO THE AR 10. DATE OF DISPATCH OF ORDER