The ACIT, Circle-5, Ahmedabad V. Piruz A. Khambhatta, Ahmedabad

ITA 41/AHD/2007

• Counselvise Citation: 4120514 RSA 2007
• Duration Of Justice: 4 year(s) 11 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 03-11-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 03-01-2007
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KARTAR SINGH
• Assessee Lawyers: PF JAIN
• Keywords: Capital asset; Depreciation; Capital receipt; Set aside
• Section: 28

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, AHMEDABAD BEFORE SHRI G. C. GUPTA, HONBLE VICE PRESIDENT AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO. 41/ AHD/2007 (ASSESSMENT YEAR 2002-03) ACIT, CIRCLE 5, AHMEDABAD VS. PIRUZ A KHAMBATTA, B/H ELLISBRIDGE GYMKHANA, ELLISBRIDGE, AHMEDABAD PAN/GIR NO. : ABMPK6324N (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI KARTAR SINGH, CIT DR RESPONDENT BY: SHRI P F JAIN, AR DATE OF HEARING: 03.11.2011 DATE OF PRONOUNCEMENT: 21.12.2011 O R D E R PER SHRI A. K. GARODIA, AM:- THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDE R OF LD. CIT(A) XI, AHMEDABAD DATE 25.10.2006 FOR THE ASSESSMENT YE AR 2002-03. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: 1. THE LD. COMMISSIONER OF INCOME TAX (A) - XI, AH MEDABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDIT ION MADE OF RS. 5,25,00,000/-BEING THE AMOUNT RECEIVED BY THE RASNA PRIVATE LIMITED IN ACCOUNT OF GIVING NON-COMPETE TERRITORY RIGHT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE, CA SE, THE LD. COMMISSIONER OF INCOME TAX (A) -XI, AHMEDABAD OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 3. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE C OMMISSIONER OF INCOME TAX (A) - XI, AHMEDABAD MAY BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. I.T.A.NO.41 /AHD/2007 2 2. THE BRIEF FACTS OF THE CASE TILL THE ASSESSMENT STAGE ARE REPRODUCED FROM PAGE 5-6 OF THE ASSESSMENT ORDER WHICH ARE AS UNDER: THE FACT OF THE CASE IS THAT A NON-COMPETE TRADEMA RK TERRITORIAL AGREEMENT WAS ENTERED BETWEEN PIRUZ KHAMBATTA. (THE ASSESSEE) AS THE LICENSOR AND RASNA PVT. LTD(RPL). THE ASSESSEE OWNS RIGHTS IN THE WELL KNOWN TRADE MARKS AND POSSESSES VALUABLE G OODWILL OF THE BUSINESS ASSOCIATED THEREWITH DUE TO EXTENSIVE USE OF THE SAID TRADE MARK. THE ASSESSEE HAS GIVEN TO THE RPL NON-EXCLUSI VE LICENSE FOR THE USE OF TRADEMARK ON YEARLY BASIS. VIDE THIS AGR EEMENT NON- COMPETE EXCLUSIVE TERRITORY RIGHT FOR THE USE OF TR ADEMARK IN THE TERRITORY OF INDIA WAS GIVEN TO RPL. IT IS PERTINEN T TO NOTE THAT THE SAME HAVE BEEN SHOWN AS AN ACQUISITION OF INTANGIBL E ASSET BY RPL IN ITS RETURN OF INCOME FOR A.Y. 02-03 AND ON WHICH DEPREDATION HAS BEEN CLAIMED BY THE RPL. ON GOING THROUGH THE V ARIOUS TERMS AND CONDITIONS ATTACHED TO THE GIVING OF THESE RIGH TS BY THE LICENSOR IT CAN BE SAFELY CONCLUDED THAT THERE IS NO TRANSFE R OF ANY CAPITAL ASSET. THE RELEVANT PORTION OF THE AGREEMENT IS BEI NG DISCUSSED BELOW :- 'POINT-7. THIS AGREEMENT, AND THE RIGHTS HEREUNDER, SHALL, NOT BE ASSIGNABLE OR TRANSFERABLE, IN WHOLE OR IN PART, WI THOUT THE WRITTEN CONSENT OF LICENSOR IN EACH INSTANCE... .... POINT NO. 11- THIS AGREEMENT SHALL BECOME EFFECTIVE ON THE DATE FIRST ABOVE RETURN, AND SHALL BE VALID FOR A PERIOD OF FIVE YEARS(5 YEARS). POINT NO. 12 - THE RPL SHALL PAY A LUMPSUM AMOUNT O F RS. 5.25 CRORES FOR THE TENURE OF THIS PRESENCE TOWARDS TERR ITORIAL NON- COMPETE RIGHTS GIVEN BY THE LICENSOR HEREINABOVE. POINT NO. 15 - RPL SHALL NOT THEREAFTER CLAIM, ACQU IRE OR ASSERT ANY RIGHTS IN OR TO THE OWNERSHIP, REGISTRATION OR USE OF ANY TRADEMARK, SERVICE MARK, OR TRADE NAME, WHICH IS EITHER IN WHO LE OR IN PART, THE SAME AS OR CONFUSING/.}' SIMILAR WITH THE SAID TRAD E MARK(S), OR.......... FROM THE ABOVE, IT IS CLEAR THAT NEITHER THE RPL EN JOYS EXCLUSIVE OWNERSHIP OVER THE RIGHTS REFERRED TO IN THE AGREEM ENT NOR THE SAME ARE ENJOYED BY THE RPL FOR AN INDEFINITE PERIOD. TH E AGREEMENT IS ONLY FOR THE TERM OF FIVE YEARS. HENCE NO ENDURING BENEFIT HAS BEEN TRANSFERRED BY THE ASSESSEE TO RPL. THE ASSESSEE I. E. THE LICENSOR STILL ENJOYS COMPLETE OWNERSHIP OF THE RIGHTS AS I S APPARENT FROM POINT-7 MENTIONED ABOVE. MERELY THE FACT THAT A LUM P SUM PAYMENT HAS BEEN RECEIVED BY THE ASSESSEE, ALTHOUGH ONLY FOR THE I.T.A.NO.41 /AHD/2007 3 TENURE OF FIVE YEARS, DOES NOT MEAN THAT THE RECEIP T SHOULD BE TREATED AS CAPITAL IN THE HANDS OF THE ASSESSEE. IN ALL RESPECTS THE RECEIPT IS IN THE NATURE OF REVENUE RECEIPT AND SHO ULD HAVE BEEN OFFERED FOR TAXATION BY THE ASSESSEE. IN VIEW OF THE DISCUSSIONS AND REASONS CITED ABOVE, THE AMOUNT OF RS.5,25,00,000/-SHOWN BY THE ASSESSEE AS A CAPITAL RECEIPT IS BEING ADDED TO THE TOTAL INCOME OF THE ASSESSEE BY TREATI NG THE SAME AS REVENUE IN NATURE. (ADDITION RS. 5,25,00,0007-) 3. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATER IN APPEAL BEFORE LD. CIT(A) WHO HAS DELETED THE ADDITION AND NOW, TH E REVENUE IS IN APPEAL BEFORE US. 4. LD. D.R. OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER WHEREAS LD. A.R. OF THE ASSESSEE SUPPORTED THE ORDER OF LD. CIT(A). RELIANCE WAS PLACED BY HIM ON THE FOLLOWING JUDICIAL PRONOUNCEME NTS: (A) GUFFIC CHEM P. LTD. VS CIT 332 ITR 602 (S.C.) (B) SAURABH SRIVASTAVA VS DCIT 300 ITR (AT) 113 ( DEL.) (SB ) 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW AND THE JUDGMENTS CITED BY THE LD. A.R. OF THE ASSESSEE. W E FIND THAT THIS AMOUNT WAS BROUGHT TO TAX BY THE A.O. ON THE BASIS THAT AS PER THE AGREEMENT BETWEEN THE ASSESSEE AND M/S. RASNA PVT. LTD. (RPL) , THE ASSESSEE HAS GIVEN TO RPL NON COMPETE TERRITORY RIGHTS LICENSE O F THE USE OF TRADEMARK ON YEARLY BASIS FOR THE PERIOD OF 5 YEARS AND HENCE , IT IS NOT A CAPITAL RECEIPT. BEFORE THE A.O. ALSO, THIS CONTENTION WAS RAISED THAT CLAUSE (VA) TO SECTION 28 WAS INSERTED BY THE FINANCE ACT 2002 W.E.F. 01.04.2003 AND SIMILARLY CLAUSE (XII) OF SECTION 2(24) WAS ALSO IN SERTED BY THE SAME FINANCE ACT W.E.F. 01.04.2003 AND HENCE THIS RECEIP T IS NOT TAXABLE IN THE PRESENT YEAR BECAUSE THE ASSESSMENT YEAR INVOLVED I S ASSESSMENT YEAR 2002-03. BUT THE A.O. DID NOT FIND ANY MERIT IN TH IS ARGUMENT OF THE I.T.A.NO.41 /AHD/2007 4 ASSESSEE. LD. CIT(A) HAD DECIDED THIS ISSUE IN FAV OUR OF THE ASSESSEE AS PER PARA 3.2 TO 3.2.5 WHICH ARE REPRODUCED BELOW FO R THE SAKE OF READY REFERENCE: 3.2. THE SUBMISSIONS MADE BY THE A. R. HAVE BEEN PERUSED. THE OBSERVATION OF THE A.O. AS REPRODUCED IN THE PRECED ING PARS HAVE BEEN EXAMINED 3.2.1. IT IS TO BE SEEN THAT RASNA PVT. LTD. HAS BO UGHT THE TERRITORIAL NON COMPETE RIGHTS FORM THE APPELLANT FOR 5 YEAS PE RIOD. THE RASNA PVT. LTD. ALSO TREATED THE SAID RIGHTS WHICH ARE REFERRED AS ABOVE AS INTANGIBLE ASSET IN ITS HANDS AND ALSO C LAIMED DEPRECIATION ON S AID RIGHTS ACCORDINGLY. THE ASSE SSING OFFICER DID NOT ACCEPT THE CLAIM OF RASNA PVT. LTD. AND IT IS S EEN THAT THE MATTER IS BEFORE THE GUJARAT HIGH COURT. IT IS EXPECTED TH AT THE GUJARAT HIGH COURT WOULD BE DECIDING WHETHER THE RASNA PVT. LTD IS CORRECT TO TREAT TERRITORIAL NON-COMPETE RIGHTS AS INTANGIBLE ASSET AND TO CLAIM DEPRECIATION THERE ON. IT IS LEARNT T HAT THE HONBLE HIGH COURT HAS ALSO ADMITTED THE CIVIL APPLICATION AND THE FINAL DECISION IS AWAITED. 3.2.2. THEREFORE, THE ISSUE WHETHER THE APPELLANT H AD RECEIVED CAPITAL RECEIPTS OR REVENUE RECEIPTS IS ALSO CONNEC TED WITH THE ISSUE WHICH IS SUB JUDICE AS DISCUSSED ABOVE. HENCE, THIS ISSUE HAS TO BE DECIDED ONLY BY THE HONBLE HIGH COURT AS DISCUSSED ABOVE. 3.2.3. APART FROM THE ABOVE WHETHER THE APPELLANT H AS RECEIVED CAPITAL, RECEIPTS OR REVENUE RECEIPTS, IT IS TO BE FURTHER SEEN WHETHER IF IT IS REVENUE RECEIPTS CAN IT BE BROUGHT TO TAX NET FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. IT MAY BE SEEN THAT THERE HAS BEEN AN AMENDMENT OF THE ACT AND BY THE FINANCE ACT , 2002, W.E.F. 1.4.2003 SUB-SECTION (VA) HAS BEEN INSERTED, WHICH IS AS FOLLOWING: '(VA) ANY SUM, WHETHER RECEIVED OR RECEIVABLE, IN C ASH OR KIND, UNDER AN AGREEMENT FOR (A) NOT CARRYING OUT ANY ACTIVITY TO RELATION TO AN Y BUSINESS; OR (B) NOT SHARING ANY KNOW-HOW, PATENT, COPYRIGHT, TRADE-MARK, LICENSE, FRANCHISE OR ANY OTHER BUSINESS OR COMMERC IAL RIGHT OF SIMILAR NATURE OR INFORMATION OR TECHNIQUE LIK ELY TO ASSIST IN THE MANUFACTURE OR PROCESSING OF GOODS OR PROVI SION FOR SERVICE' PROVIDED THAT SUB-CLAUSE (A) SHALL NOT APPLY TO - (I) ANY SUM, WHETHER RECEIVED OR RECEIVABLE, IN CASH OR KIND, ON ACCOUNT OF TRANSFER OF THE RIGHT TO MANUFACTURE, PR ODUCE OR PROCESS I.T.A.NO.41 /AHD/2007 5 ANY ARTICLE OR THING OR RIGHT TO CARRY ON ANY BUSIN ESS, WHICH IS CHARGEABLE UNDER THE 'CAPITAL GAINS'; (II) ANY SUM RECEIVED AS COMPENSATION, FROM TH E MULTILATERAL FUND OR THE MONTREAL PROTOCOL ON SUBSTANCES THAT DEPLETE TH E OZONE LAYER UNDER THE UNITED NATIONS ENVIRONMENT PROGRAMME, IN ACCORDANCE WITH THE TERMS OF AGREEMENT ENTERED INTO WITH THE G OVERNMENT OF INDIA. EXPLANATION - FOR THE PURPOSES OF THIS CLAUSE (I) 'AGREEMENT' INCLUDES ANY ARRANGEMENT OR U NDERSTANDING OR ACTION IN CONCERT,- (A) WHETHER OR NOT SUCH ARRANGEMENT, UNDERSTANDING OR ACTION IS FORMAL OR IN WRITING; OR (B) WHETHER OR NOT SUCH ARRANGEMENT, UNDERSTANDING OR ACTION IS INTENDED TO BE ENFORCEABLE BY LEGAL PROCEEDINGS ; (III) 'SERVICE' MEANS SERVICE OF ANY DESCRIPTION WH ICH IS MADE AVAILABLE TO POTENTIAL USERS AND INCLUDES THE PROVI SION OF SERVICE IN CONNECTION WITH BUSINESS OF ANY INDUSTRIAL OR COMME RCIAL NATURE SUCH AS ACCOUNTING, BANKING, COMMUNICATION, CONVEYI NG OF NEWS OR INFORMATION, ADVERTISING, ENTERTAINMENT, AMUSEME NT, EDUCATION, FINANCING, INSURANCE, CHIT FUNDS, REAL ESTATE, CONS TRUCTION, TRANSPORT, STORAGE, PROCESSING, SUPPLY OF ELECTRICAL OR OTHER ENERGY, BOARDING AND LODGING. AS SEEN ABOVE, AS PER THE AMENDMENT, THE SUM RECE IVED BY THE APPELLANT IS TAXABLE. 3.2.4. THEREFORE IN THE LIGHT OF ABOVE AMENDMENT W HICH IS OPERATIVE W.E.F. 1.4.2003, THE AMOUNT RECEIVED BY T HE APPELLANT AT RS. 5.25 CRORES CANNOT BE BROUGHT TO TAXATION. IT I S PERTINENT TO NOTE THAT THE ABOVE AMENDED PROVISION IS' ONLY TO BRING SUCH RECEIPTS FOR TAXATION PURPOSE UNLESS THEY ARE CAPITAL RECEIPTS. HOWEVER, THIS NEWLY INSERTED PROVISION APPLIES PROSPECTIVELY ONLY I.E. WITH EFFECT FROM 1.4.2003. HENCE IT CANNOT BE SAID THAT THE NEW LY INSERTED PROVISION OPERATES RETROSPECTIVELY. 3.2.5. HAVING VERIFIED THE FACTS AND CIRCUMSTANCES OF THE CASE, I AM OF THE OPINION THAT THE COMPENSATION RECEIVED BY TH E APPELLANT FOR TRANSFERRING HIS RIGHTS IN TRADE MARK TO RASNA PVT. LTD. FOR THE PERIOD OF 5 YEARS CAN NOT BE BROUGHT TO TAX EVEN IT IS A REVENUE RECEIPT SINCE THE SAME COULD BE BROUGHT UNDER TAXAT ION ONLY WITH EFFECT FROM 1.4.2003. SINCE THE APPELLANT'S CASE IS FOR THE ASSESSMENT YEAR 2002-03, THE NEW PROVISIONS OF THE ACT IS NOT I.T.A.NO.41 /AHD/2007 6 APPLICABLE. THEREFORE, THE ADDITION MADE BY THE ASS ESSING OFFICER, ON THIS COUNT, IS DELETED. 6. WE FIND THAT IN THE ABOVE CASE, LD. CIT(A) HAS A LSO REPRODUCED THE PROVISIONS OF CLAUSE (VA) OF SECTION 28, WHICH WILL BE APPLICABLE IN RESPECT OF AN AGREEMENT FOR NOT CARRYING OUT ANY AC TIVITY IN RELATION TO ANY BUSINESS. IN OUR HUMBLE OPINION, THIS SUB-CLAUSE IS NOT APPLICABLE IN THE PRESENT CASE BECAUSE IN THE PRESENT CASE, THE AGREE MENT IS NOT FOR NOT CARRYING OUT ANY ACTIVITY BUT THE AGREEMENT IS FOR THIS THAT THE ASSESSEE AUTHORIZED RPL TO USE OF TRADE MARK. SUB-CLAUSE (B ) OF CLAUSE (VA) OF SECTION 28 SAYS THAT WHEN THERE IS AN AGREEMENT FOR NOT SHARING ANY KNOW-HOW, PATENT, COPYRIGHT, TRADE-MARK, LICENCE, F RANCHISE OR ANY OTHER BUSINESS OR COMMERCIAL RIGHT OF SIMILAR NATURE ETC. THEN ANY SUM RECEIVED OR RECEIVABLE UNDER THIS AGREEMENT WILL BE TAXABLE. IN OUR HUMBLE OPINION, THIS SUB-CLAUSE IS NOT APPLICABLE IN THE P RESENT CASE BECAUSE HERE, THE ASSESSEE IS SHARING HIS TRADE MARK WITH RPL AND IT IS NOT A CASE OF NOT SHARING. IN OUR CONSIDERED OPINION, THE ORDER OF L D. CIT(A) IS NOT SUSTAINABLE BECAUSE IT IS ON A WRONG PREMISE. WE SA Y SO BECAUSE MERELY FOR THIS REASON THAT ALONG WITH RENDERING OF SERVIC ES, OR ALLOWING USER OF AN ASSET OR FOR SALE OF AN ASSET AS THE CASE MAY BE , IF THE SERVICE PROVIDER OR SELLER ALSO AGREES FOR NON-COMPETITION AND NO SE PARATE AMOUNT AS CONSIDERATION FOR THE SAME IS CHARGED, IT CANNOT BE SAID THAT THE AMOUNT RECEIVED BY THE SERVICE PROVIDER OR SELLER IS FOR S UCH NON-COMPETITION AGREEMENT EVEN TO THE EXTENT OF PART AMOUNT OF CONS IDERATION RECEIVED BY THE SERVICE PROVIDER/SELLER. WE CAN EXPLAIN IT FUR THER WITH THE HELP OF AN EXAMPLE. IF A PERSON IS RENDERING SERVICE AS AN EM PLOYEE OR CONSULTANT AND AGREES THAT HE WILL NOT RENDER ANY SERVICE TO T HE COMPETITOR BUT NO SEPARATE AMOUNT IS CHARGED FOR SUCH AGREEMENT, CAN IT BE SAID THAT ANY I.T.A.NO.41 /AHD/2007 7 PART OR FULL AMOUNT RECEIVED BY THE EMPLOYEE OR CON SULTANT IS FOR NON- COMPETITION AGREEMENT AND HENCE, CAPITAL RECEIPT & NOT TAXABLE. IF THIS IS ALLOWED, THEN EVERY BODY WILL INCLUDE THIS CLAUSE I N AGREEMENT OF RENDERING SERVICE/SALE & WILL CLAIM THAT THE ENTIRE RECEIPT IS NON TAXABLE. IN SUCH CASES AND IN THE PRESENT CASE, NON COMPETIT ION CLAUSE IS SECONDARY & PRIMARY CONSIDERATION IS SERVICE PROVIDED OR USE OF TRADE MARK PROVIDED AND HENCE, IT IS REVENUE RECEIPT. 7. NOW, WE DISCUSS THE APPLICABILITY OF VARIOUS JUD GMENTS CITED BY THE LD. A.R.: - (I) THE FIRST JUDGEMENT CITED BY THE LD . A.R. IS THE JUDGMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF GUFFE CHEM PVT. LTD. (SUPRA) AND CIT VS MANDALYA INVESTMENT PV T. LTD. AS REPORTED IN 332 ITR 602. AS PER THE FACTS OF THIS CASE, IT IS SEEN THAT THE ASSESSEE RECEIVED RS.50,000/- FROM RANBAXY AS NON COMPETITIO N FEE WHEREAS IN THE PRESENT CASE, THE AMOUNT HAS BEEN RECEIVED BY THE A SSESSEE IN RESPECT OF ALLOWING USE OF ITS TRADE MARK ETC. TO RPL FOR A PE RIOD OF 5 YEARS AND SINCE THE FACTS ARE DIFFERENT, THIS JUDGMENT OF HON BLE APEX COURT IS NOT APPLICABLE IN THE PRESENT CASE. (II) SIMILARLY, THE 2 ND JUDGMENT CITED BY THE LD. A.R. OF THE ASSESSEE IS THE DECISION OF SPE CIAL BENCH OF THE TRIBUNAL RENDERED IN THE CASE OF SAURABH SRIVASTAVA (SUPRA). IN THAT CASE ALSO, A SUM OF RS.1,07,36,570/- WAS RECEIVED BY THE ASSESSEE ON ACCOUNT OF NON COMPETE FEE. THE ASSESSEE WAS PROMOTER AND MANAGING DIRECTOR OF A SOFTWARE COMPANY HOLDING 866450 SHARES AND THE COMPANY WAS TAKEN OVER BY UK GROUP AND 76% OF SUBSCRIBED CAPITA L WAS AGREED TO BE TRANSFERRED IN FAVOUR OF THE U K COMPANY BY THE SHA REHOLDERS AND IN ADDITION TO THE SHARES TRANSFER AGREEMENT, THE U K GROUP ALSO ENTERED INTO NON COMPETE AGREEMENT WITH THE ASSESSEE. HENCE, IT SEEMS THAT IN THAT CASE ALSO, THE AMOUNT IN QUESTION WAS RECEIVED BY T HE ASSESSEE ON ACCOUNT I.T.A.NO.41 /AHD/2007 8 OF NON COMPETE FEE WHEREAS IN THE PRESENT CASE, WE HAVE SEEN THAT AMOUNT IN QUESTION WAS RECEIVED BY THE ASSESSEE SIMPLY FOR PROVIDING LICENCE TO RPL FOR USE OF TRADE MARK OWNED BY THE ASSESSEE FOR A PERIOD OF 5 YEARS AND AGREEMENT OF NON-COMPETITION IS SECONDARY AND W ITHOUT ANY CONSIDERATION. ALTHOUGH, THE ASSESSEE HAS ALSO AGR EED FOR NON COMPETITION FOR THE SAID 5 YEARS PERIOD BUT THE REC EIPT IS NOT ON ACCOUNT OF NON COMPETE FEE BUT IS ON ACCOUNT OF PROVIDING LICE NSEE TO RPL FOR EXTENSIVE USE OF THE SAID TRADE MARK ON YEARLY BASI S. HENCE, THIS DECISION OF SPECIAL BENCH OF THE TRIBUNAL IS ALSO NOT APPLIC ABLE IN THE PRESENT CASE. 8. IN THE LIGHT OF ABOVE DISCUSSION, WE FIND THAT I N THE PRESENT CASE, THE ORDER OF LD. CIT(A) IS NOT SUSTAINABLE AND HENC E WE REVERSE THE ORDER OF LD. CIT(A) AND RESTORE THAT OF THE A.O. 9. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED. 10. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED HEREINABOVE. SD./- SD./- (G. C. GUPTA) (A. K. GARODIA) VICE PRESIDENT ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 14/12/11 I.T.A.NO.41 /AHD/2007 9 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 16.12.11.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S.20/12 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 21/12 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.21/12 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 21/12/2011 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. ..