Income tax Officer, New Delhi V. M/s Tropicana Beverages Company, New Delhi

ITA 810/DEL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 8119 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-02-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 10-02-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 05-03-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N K CHAND
• Assessee Lawyers: R P MA
• Keywords: Depreciation; Commercial expediency
• Section: 32

Judgement Text

I.T.A. NO.482,810 /DEL/2009 1/12 IN THE INCOME TAX APPELLATE TRIBUNAL, NEW DELHI, BENCH H BEFORE SHRI K. G. BANSAL, ACCOUTANT MEMBER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER ITA NO.482 /DEL/2009 (ASSESSMENT YEAR2004-05) DCIT, CIRCLE 16(1), VS. M/S. TROPICANA BEVERAGES C O., NEW DELHI MOHANDEV BUILDING, 13, TOLSTOY MARG, NEW DELHI. I.T.A. NO. 810/DEL/2009 (ASSESSMENT YEAR 2004-05) ITO, WARD 16(4), VS. M/S. TROPICANA BEVERAGES CO., NEW DELHI MOHANDEV BUILDING, 13, TOLSTOY MARG, NEW DELHI. (APPELLANTS) (RESPONDENTS) PAN / GIR NO. AABCA0544M APPELLANT BY: SHRI N K CHAND, SR. DR RESPONDENT BY: SHRI C S AGGARWAL, SR. ADV., SHRI VISHAL KALRA & SH. R P MALL, ADV. ORDER PER GEORGE MATHAN, JM: 1. I.T.A. NO. 810/DEL/2009 IS AN APPEAL FILED BY TH E REVENUE AGAINST THE ORDER OF LD. CIT(A) XIX, NEW DELHI IN APPEAL NO.417/2007-08 DATED 17.12.2008 FOR THE ASSESSMENT YEAR 2005-06 AND I.T.A. NO. I.T.A. NO.482,810 /DEL/2009 2/12 482/DEL/2009 IS AN APPEAL BY THE REVENUE AGAINST TH E ORDER OF CIT(A) XIX, NEW DELHI IN APPEAL NO.127/2006-07 DATED 21.10.2008 FOR THE ASSESSMENT YEAR 2004-05. SHRI N K CHAND, SR. DR REPRESENTED O N BEHALF OF THE REVENUE AND SHRI C S AGGARWAL, SR. ADVOCATE, SHRI VISHAL KALRA & SHRI R P MALL, ADVOCATES REPRESENTED ON BEHALF OF THE ASSESSEE. 2. IT WAS THE SUBMISSION BY THE LD. D.R. THAT THE A SSESSEE IS IN THE BUSINESS OF TRADING OF PACKED FRUIT JUICE S UNDER THE BRAND NAME TROPICANA. THE ASSESSEE PURCHASES THE PACKED FOOD JUICES FROM M/S. DYNAMIX DAIRY INDUSTRIES LTD. PUNE (HEREINAFTER REFERRED TO AS DYNAMIX). IT WAS THE SUBMISSION THAT IN THE COUR SE OF ASSESSMENT, IT WAS NOTICED THAT THE ASSESSEE HAD CL AIMED DEPRECIATION ON IMPORTED MACHINERY WHICH HAD WDV AS ON 01.04.2003 AT RS.1,41,71,165/- AND WHICH WAS INSTALLED AT THE MANUFACTURING PREMISES OF DYNAMIX. IT WAS ALSO NOTICED THAT THE ASSESSEE HAD CLAIMED DEPRECIATION ON VISI REFRIGERATORS WHICH WERE SHOWN AT WDV AS ON 01.04.2003 AT RS.40,19,224/- WHICH WERE INSTALLED AT VARIOUS OUTLETS ALL OVER INDIA. IT WA S THE SUBMISSION THAT AS THE ASSESSEE WAS NOT DOING ANY MANUFACTURING ACTIVITY AND THERE WAS NO EXPENDITURE ON POWER, FUEL AND WAGES AND ON ACCOUNT OF THE FACT TH AT THE IMPORTED MACHINERY WAS LYING AT THE PREMISES I.T.A. NO.482,810 /DEL/2009 3/12 BELONGING TO DYNAMIX THE SAID MACHINERY HAD NOT BEE N PUT TO USE FOR THE ASSESSEES BUSINESS PURPOSES. I T WAS THE SUBMISSION THAT IN RESPECT OF VISI REFRIGERATOR AS REFRIGERATORS WERE NOT USED IN THE BUSINESS OF THE ASSESSEE, THE A.O. HAD DISALLOWED THE DEPRECIATION. IT WAS THE SUBMISSION THAT THE LD. CIT(A) HAD DELETED THE DISALLOWANCE BY FOLLOWING THE DECISION OF HON'BLE H IGH COURT OF BOMBAY IN THE CASE OF ASSOCIATED CEMENT CO . LTD. REPORTED IN 68 ITSR 478 AND THE DECISION OF HON'BLE HIGH COURT OF ANDHRA PRADESH IN THE CASE OF A P PAPER MILLS REPORTED IN 225 ITR 262. IT WAS THE SUBMISSION THAT THE DECISION OF HON'BLE HIGH COURT OF BOMBAY WAS DISTINGUISHABLE IN SO FAR AS IN THAT CAS E, THE MACHINERY WAS BEING USED BY THE SALES MANAGER MORE SO THE SELLING AGENT OF THE ASSESSEE THEREIN WHICH WAS NOT SO IN THE ASSESSEES CASE. IT WAS THE FURTHER SUBMISSION THAT THE DECISION OF HON'BLE HIGH COURT OF ANDHRA PRADESH IN THE CASE OF A.P. PAPER MILLS WAS ALSO DISTINGUISHABLE IN SO FAR AS IN THE SAID DECISION T HE TRUCKS WERE TO BE USED EXCLUSIVELY FOR THE PURPOSE OF THE ASSESSEE THEREIN WHICH WAS NOT THE CASE OF THE PRESENT ASSESSEE. IT WAS HIS FURTHER SUBMISSION TH AT THE DECISION OF THE HON'BLE HIGH COURT OF DELHI IN THE CASE OF PUNJAB NATIONAL BANK LTD. REPORTED IN 141 ITR 88 6 WHEREIN IT HAS BEEN HELD THAT ONLY PORTION USED FOR THE I.T.A. NO.482,810 /DEL/2009 4/12 BUSINESS WAS ENTITLED TO DEPRECIATION. IT WAS THE FURTHER SUBMISSION THAT THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF LIQUIDATORS OF PURSA LTD. REPO RTED IN 25 ITR 265 WOULD ALSO APPLY WHEREIN IT WAS HELD THAT THE MACHINERY & PLANT MUST BE USED FOR THE PURPOSE OF THE BUSINESS WHICH IS ACTUALLY CARRIED ON AND THE P ROFITS OF WHICH ARE ASSESSABLE U/S 10(1) OF THE ACT. 3. IN REPLY, THE LD. A.R. SUBMITTED THAT THE FACT T HAT THE ASSESSEE IS THE OWNER OF THE MACHINERY IS NOT DISPU TED. SECTION 32 OF THE I. T. ACT, 1961 PERMITTED DEPRECI ATION FOR THE ASSETS, WHICH IS OWNED BY THE ASSESSEE AND IS USED BY THE ASSESSEE DURING THE RELEVANT ASSESSMENT YEAR FOR THE PURPOSE OF BUSINESS. IT WAS THE SUBMI SSION THAT THE DECISION OF HON'BLE SUPREME COURT IN THE C ASE OF LIQUIDATOR OF PURSA LTD., HAD NO APPLICATION IN SO FAR AS IN THAT CASE, THE MACHINERY HAD NOT BEEN USED DU RING THE YEAR AND THE INTENTION OF THE COMPANY WAS TO DISCONTINUE ITS BUSINESS AND THE SALES OF MACHINERY AND PLANT WAS A STEP IN THE PROCESS OF WINDING UP OF IT S BUSINESS. IT WAS THE FURTHER SUBMISSION THAT IN TH E SAID DECISION, THE HON'BLE SUPREME COURT HAS CATEGORICAL LY HELD THAT THE WORDS USED FOR THE PURPOSE OF BUSINE SS MEANS FOR THE PURPOSE OF BUSINESS OF THE OWNER TO C ARRY ON THE BUSINESS AND EARN PROFITS IN THE BUSINESS. IT WAS FURTHER SUBMISSION IN THE ASSESSEES CASE THE ASSES SEE I.T.A. NO.482,810 /DEL/2009 5/12 HAD ENTERED INTO AN AGREEMENT WITH DYNAMIX ON 01.01.2003 FOR THE PURPOSE OF MANUFACTURING THE FRU IT JUICES UNDER THE TRADEMARK OF TROPICANA. IT WAS THE SUBMISSION THAT THE TRADE MARK TROPICANA BELONGS TO THE ASSESSEE AND THE ASSESSEE ALSO HAD ENTERED INTO PRODUCT SUPPLY AGREEMENT WITH M/S. DYNAMIX WHICH WAS ENTERED INTO ON 23 RD OCTOBER 2002 UNDER WHICH M/S. DYNAMIX WAS TO MANUFACTURE FRUIT JUICES AS PER THE REQUIREMENT OF THE ASSESSEE AND THE ASSESSEE HAD AL SO SUPPLIED THE KNOW HOW FOR THE MANUFACTURE OF THE FR UIT JUICES AS THE ASSESSEE WAS ORIGINALLY IN THE BUSINE SS OF MANUFACTURE OF FRUIT JUICES AND IN 1999 FOR THE FIR STS TIME THE ASSESSEE HAD FOR COMMERCIAL EXPEDIENCY ENTERED INTO THE AGREEMENT WITH M/S. DYNAMIX FOR TH E MANUFACTURE OF FRUIT JUICES. IT WAS ALSO THE SUBMI SSION THAT FOR THE PURPOSE OF MANUFACTURING THE FRUIT JUI CES AND PACKING THE SAME AS PER THE REQUIREMENT OF THE ASSESSEE, CERTAIN MACHINERY WERE REQUIRED WHICH WAS NOT AVAILABLE WITH DYNAMIX AND CONSEQUENTLY DYNAMIX HAD REQUESTED THE ASSESSEE TO PROVIDE THE EQUIPMENT AND THESE EQUIPMENTS HAVE BEEN PROVIDED AT A COST OF RS.2,51,93,182/-. IT WAS THE SUBMISSION THAT AS PE R THE AGREEMENT BETWEEN THE ASSESSEE AND THE DYNAMIX, DYNAMIX COULD USE THE MACHINERY ONLY FOR THE PURPOS E OF MANUFACTURING THE FRUIT JUICES FOR THE ASSESSEE AND THE I.T.A. NO.482,810 /DEL/2009 6/12 MACHINERY HAD TO HAVE A NAME BOARD SPECIFYING THAT THE MACHINERY BELONGS TO THE ASSESSEE AND EITHER ON TERMINATION OF THE AGREEMENT OR ON THE EXPIRY OF TH E AGREEMENT PERIOD, THE MACHINERY WERE TO BE RETURNED TO THE ASSESSEE. IT WAS FURTHER SUBMITTED THAT AS PER THE AGREEMENT, IF DYNAMIX USES THE MACHINERY PROVIDED B Y THE ASSESSEE FOR THE MANUFACTURE OF ANY OTHER PRODU CT OR PRODUCE OR FOR ANY OTHER PERSON, THE AGREEMENT STOO D CANCELLED AND THE MACHINERY WERE LIABLE TO BE RETUR NED TO THE ASSESSEE. IT WAS THE FURTHER SUBMISSION THA T AS PER CLAUSE 7.2 OF THE AGREEMENT, ANY DAMAGE CAUSED TO T HE BUILDING OR STRUCTURE ON ACCOUNT OF THE REMOVAL OF THE MACHINERY WAS ALSO TO BE BORN BY THE ASSESSEE. IT W AS ALSO SUBMITTED THAT THERE WAS NO RELATIONSHIP BETWE EN THE ASSESSEE AND THE DYNAMIX SO AS TO BE HIT BY THE PROVISIONS OF SECTION 40A(2) ALSO. IT WAS THUS THE SUBMISSION THAT THE ASSESSEE GOT THE FRUIT JUICES MANUFACTURED THROUGH DYNAMIX BY USING THE MACHINERY PROVIDED BY THE ASSESSEE AND SUCH FRUIT JUICES WERE TRADED BY THE ASSESSEE IN THE OPEN MARKET. IT WAS A LSO SUBMITTED THAT DYNAMIX WAS MANUFACTURING THE FRUIT JUICES ONLY FOR THE ASSESSEE AND FOR NOBODY ELSE NO R WAS THE PRODUCE SOLD BY DYNAMIX TO A THIRD PARTY. THE ASSESSEE WAS HOLDING THE COMPLETE PRODUCTION OF DYNAMIX CAPTIVE FOR ITS OWN CONSUMPTION. IT WAS THU S I.T.A. NO.482,810 /DEL/2009 7/12 THE SUBMISSION THAT THE MACHINERY WERE USED FOR THE BUSINESS PURPOSE OF THE ASSESSEE. IT WAS THE SUBMIS SION THAT IF THE MACHINERY WERE NOT PROVIDED BY THE ASSE SSEE, DYNAMIX WOULD NOT BE ABLE TO MANUFACTURE THE PRODUC TS AS PER THE AGREEMENT WITH THE ASSESSEE AND THE ASSE SSEE WOULD NOT BE ABLE TO DO ITS BUSINESS. IT WAS ALSO THE SUBMISSION THAT THE LD. CIT(A) HAD SPECIFICALLY CAL LED FOR A CERTIFICATE FROM DYNAMIX TO VERIFY IF DYNAMIX WERE CLAIMING THE DEPRECIATION AND DYNAMIX HAD SPECIFICALLY GIVEN A CERTIFICATE THAT THEY HAD NO C LAIM OVER THE PLANT & MACHINERY AND THAT THEY HAVE NOT CLAIMED ANY DEPRECIATION ON THE SAID PLANT & MACHIN ERY AND THAT THE PLANT & MACHINERY WAS USED ONLY FOR TH E PURPOSE OF BUSINESS OF THE ASSESSEE. IT WAS ALSO H IS FURTHER SUBMISSION THAT THE DECISION OF HON'BLE HIG H COURT OF BOMBAY IN THE CASE OF ASSOCIATED CEMENT WA S DIRECTLY APPLICABLE IN SO FAR AS IT HAD BEEN HELD T HAT IT WAS THE OWNER OF THE PROPERTY WHO IS ENTITLED TO DEPRECIATION. IT WAS THE FURTHER SUBMISSION THAT T HE ASSESSEE OWNS THE ASSET BEING THE PLANT & MACHINERY AND THE SAME WAS USED IN THE MANUFACTURING OF THE F RUIT JUICES WHICH WERE SOLD BY THE ASSESSEE THOUGH MANUFACTURED BY DYNAMIX FOR AND ON BEHALF OF THE ASSESSEE ON THE BASIS OF KNOW HOW AND METHODOLOGY AND USING MACHINERY PROVIDED BY THE ASSESSEE. IN I.T.A. NO.482,810 /DEL/2009 8/12 RESPECT OF THE DEPRECIATION ON THE VISI REFRIGERATO RS, IT WAS THE SUBMISSION THAT THESE WERE REFRIGERATORS, W HICH WERE INSTALLED AT THE PREMISES OF THE DEALERS OF TH E ASSESSEE SO AS TO KEEP THE PRODUCTS OF THE ASSESSEE UNDER THE REFRIGERATED CONDITIONS. IT WAS THE SUBMISSION THAT ASSESSEE BEING IN THE BUSINESS OF SELLING THE FRUIT JUICES WHICH WERE HAVING SHELF LIFE AND WHICH WERE REQUIRE D TO BE KEPT UNDER THE OPTIMUM TEMPERATURE CONDITIONS TH E REFRIGERATORS HAVE TO BE PROVIDED TO THE DEALERS WH O WERE DEALING IN THE PRODUCTS OF THE ASSESSEE. IT W AS THUS SUBMITTED THAT THE REFRIGERATORS WERE ALSO USED FOR THE PURPOSE OF THE BUSINESS OF THE ASSESSEE AND WAS CONSEQUENTLY ENTITLED FOR DEPRECIATION. IT WAS THE SUBMISSION THAT THE ORDER OF LD. CIT(A) WAS LIABLE TO BE UPHELD. 4. IT WAS AGREED BY BOTH THE SIDES THAT THE ISSUES WERE IDENTICAL FOR THE ASSESSMENT YEAR 2005-06 AND THE S AME SUBMISSIONS APPLIED TO THE APPEAL ALSO BEING I.T.A. NO. 810/DEL/2009. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PERU SAL OF THE DECISION OF HON'BLE SUPREME COURT IN THE CASE O F LIQUIDATORS OF PURSA LTD. SHOWS THAT THE HON'BLE SUPREME COURT THEREIN HAS CLARIFIED THE MEANING OF THE WORDS USED FOR THE PURPOSE OF BUSINESS AS WAS AVAILABLE IN SECTION 10(2)(IV) OF THE I. T. ACT, 19 22 THE I.T.A. NO.482,810 /DEL/2009 9/12 TERM WHICH IS USED IN SECTION 32 OF THE I. T. ACT, 1961. THE HON'BLE SUPREME COURT HAS HELD THAT THE SAID TE RM MEANS THAT THE MACHINERY & PLANT IS USED FOR THE PURPOSE OF ENABLING THE OWNER TO CARRY ON THE BUSIN ESS AND EARN PROFIT IN THE BUSINESS. WITH THIS MEANING IN MIND IF THE FACTS IN THE PRESENT CASE ARE SEEN, IT IS NOTICED THAT THE ASSESSEE IS IN THE BUSINESS OF TRA DING IN PACKED FRUIT JUICES. AS PER THE ASSESSEES PRODUCT SUPPLY AGREEMENT ENTERED INTO BY THE ASSESSEE WITH DYNAMIX RIGHT FROM 18 TH FEB 1999, IT IS NOTICED THAT DYNAMIX IS TO MANUFACTURE FRUIT JUICES AS PER THE REQUIREMENT OF THE ASSESSEE AND IT IS TO BE PACKED IN ACCORDANCE WITH THE PACKING INSTRUCTIONS AND THE PACKING MATERIAL AND DESIGN HAVE TO BE APPROVED BY THE ASSESSEE. THE MANUFACTURE AND THE PACKING ARE TO B E AS PER THE SPECIFICATIONS AND QUALITY STANDARDS DECIDE D BY THE ASSESSEE. THE TRADEMARK BELONGS FULLY TO THE ASSESSEE. EVEN THE RAW MATERIAL AND OTHER INPUTS A S ARE REQUIRED FOR THE MANUFACTURE OF THE FRUIT JUICES AR E TO BE SOURCED FROM THE SOURCES AND AS PER THE SPECIFICATI ON APPROVED BY THE ASSESSEE. THUS, A PERUSAL OF THE PRODUCT SUPPLY AGREEMENT SHOWS THAT DYNAMIX IS MANUFACTURING THE FRUIT JUICES FOR AND ON BEHALF OF THE ASSESSEE. DYNAMIX HAS NO SAY IN THE METHOD OF MANUFACTURE, PRODUCT MIX, SOURCING OF RAW MATERIAL I.T.A. NO.482,810 /DEL/2009 10/12 QUALITY OF RAW MATERIAL, METHOD OF PACKING, DESIGN OF PACKING ETC. IT IS NOT A CASE WHERE DYNAMIX MANUFACTURE FRUIT JUICES AND THE ASSESSEE IS A DEAL ER FOR THE FRUIT JUICE MANUFACTURED BY DYNAMIX. A PERUSAL OF THE EQUIPMENT SUPPLY AGREEMENT BETWEEN THE ASSESSEE AND THE DYNAMIX CLEARLY SHOWS THAT IT MANUFACTURES THE FRUIT JUICES AS PER THE REQUIREMENT OF THE ASSESSEE AND AS AGREED BETWEEN THE ASSESSEE AND DYNAMIX IN THE PRODUCT SUPPLY AGREEMENT, THE DYNAMIX REQUIRED THE ASSESSEE TO PROVIDE THE EQUIPMENTS AND WANTED TO PL ACE A RESPONSIBILITY ON THE ASSESSEE SO THAT THE ASSESS EE DOES NOT END OR TERMINATE THE AGREEMENT WITH DYNAMIX AFT ER DYNAMIX INVESTS SUBSTANTIAL AMOUNT IN THE MACHINERY WHICH WOULD REMAIN THE LIABILITY IN THE HANDS OF DYNAMIX IF THE ASSESSEE BACK OUT THE AGREEMENT. IT IS NOTICED THAT THE ASSESSEE AS PER THE REQUEST OF DYN AMIX HAS PROVIDED THE MACHINERY FOR THE PURPOSE OF MANUFACTURING THE PRODUCTS UNDER THE PRODUCT SUPPLY AGREEMENT. A PERUSAL OF THE AGREEMENT ALSO SHOWS T HAT IT IS CLEARLY UNDERSTOOD THAT THE MACHINERY WOULD B ELONG TO THE ASSESSEE AND NOT THE DYNAMIX AND DYNAMIX HAD NO CHARGE OR CLAIM OVER THE MACHINERY. EVEN THE SERVICING, MAINTENANCE AND SPARE PARTS OF THE MACHI NERY WAS TO BE IN DONE IN THE PRESENCE OF THE REPRESENTA TIVE OF THE ASSESSEE EVEN THOUGH THE COST FOR THE SAME W AS TO I.T.A. NO.482,810 /DEL/2009 11/12 BE BORNE BY DYNAMIX. ITS HAS ALSO BEEN CLEARLY UNDERSTOOD BETWEEN THE PARTIES THAT THE DYNAMIX CAN NOT USE THE MACHINERY PROVIDED BY THE ASSESSEE FOR THE PURPOSE OTHER THAN MANUFACTURING PRODUCTS AS AGREED UPON IN THE PRODUCT SUPPLY AGREEMENT. IN THESE CIRCUMSTANCES, AS IT IS NOTICED THAT THE MACHINERY HAS BEEN PROVIDED BY THE ASSESSEE TO DYNAMIX FOR THE PURPOSE OF MANUFACTURING THE PRODUCT OF THE ASSESSE E IT WOULD HAVE TO BE HELD THAT THE MACHINERY HAS BEEN U SED FOR THE PURPOSE OF THE BUSINESS OF THE ASSESSEE AND CONSEQUENTLY THE ASSESSEE WOULD BE ENTITLED FOR CLAIMING THE DEPRECIATION. 6. IN RESPECT OF THE DEPRECIATION IN REGARD TO THE VISI REFRIGERATORS, IT IS NOTICED THAT THESE REFRIGERATO RS HAVE BEEN INSTALLED AT THE PREMISES OF THE DEALERS OF TH E PRODUCTS DEALT WITH BY THE ASSESSEE. OBVIOUSLY, TH E PRODUCT DEALT IN BY THE ASSESSEE ARE PERISHABLE COMMODITIES WHICH HAVE SHELF LIFE AND WHICH HAVE TO BE MAINTAINED BETWEEN A SPECIFIC TEMPERATURE. THE A.O . HAS NOT POINTED OUT ANYTHING TO SHOW THAT THE REFRIGERATORS WERE NOT USED FOR THE BUSINESS OF THE ASSESSEE. IN FACT THE ORDER OF THE A.O. SPECIFIED THAT THE REFRIGERATORS WERE NOT PROVED TO HAVE BEEN PUT TO BUSINESS USE DURING THE RELEVANT PREVIOUS YEAR. TH E FACT THAT THESE REFRIGERATORS WERE AT THE VARIOUS OUTLET S ALL I.T.A. NO.482,810 /DEL/2009 12/12 OVER INDIA AS RECORDED BY THE A.O. ITSELF SHOWS THA T THE REFRIGERATORS HAVE BEEN PUT TO USE AS THESE REFRIGE RATORS ARE AT THE PREMISES OF THE DEALERS OF THE PRODUCT O F THE ASSESSEE AND CONSEQUENTLY THE ASSESSEE WOULD BE ENTITLED TO THE CLAIM OF DEPRECIATION. 7. IN THE APPEAL OF THE REVENUE IN I.T.A. NO. 810/D EL/2009 IDENTICAL ISSUE HAS BEEN RAISED AND IT IS NOTICED T HAT THE CIT(A) HAS RELIED UPON HIS DECISION FOR THE ASSESSM ENT YEAR 2004-05 FOR DELETING THE DISALLOWANCE OF DEPRECIATION. AS WE HAVE HELD THAT THE DECISION OF THE LD. CIT(A) TO THE ISSUE IN I.T.A. NO. 482/DEL/2009 IS ON A RIGHT FOOTING, THE SAME FINDING WOULD APPLY TO THIS APPEAL ALSO IN I.T.A. NO. 810/DEL/2009. 8. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE A RE DISMISSED. 9. THIS DECISION WAS PRONOUNCED IN THE OPEN COURT O N 18 TH FEB., 2010. SD./- SD./- (K. G. BANSAL) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:18 TH FEB., 2010 SP. COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT TRUE COPY: BY ORDER 4. CIT(A) 5. DR DY. REGISTRAR, ITAT, NEW DELHI