Appeal details
Counselvise Citation
[2021] 109 COUNSELVISE.COM (IT) 1122 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
5 month(s) 27 day(s)
Appellant
Respondent
Appeal Type
Miscellaneous Application
Pronouncement Date
08-03-2021
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
K
Assessment Year
2011-2012
Appeal Filed On
11-09-2020
Judgement Text
THE INCOME TAX APPELLATE TRIBUNAL K BENCH, MUMBAI SHRI SHAMIM YAHYA (AM) & SHRI PAVANKUMAR GADALE ( JM) M.A. NO. 229/MUM/2020 IN ITA NO. 570/MUM/2018 (ASSESSMENT YEAR 2011-12) M/S. ABBOTT HEALTHCARE PVT. LTD. UNIT-4, CORPORATE PARK, SION TROMBAY ROAD, CHEMBUR MUMBAI-400 071. PAN : AAACK3935D VS. DCIT-2(1)(1) ROOM NO. 561 AAYAKAR BHAVAN M.K. ROAD MUMBAI- 400020. (APPELLANT) (RESPONDENT) ASSESSEE BY SHRI LOKESH SHAH DEPARTMENT BY SHRI THARIAN OOMAN DATE OF HEARING 1 2.0 2 .2021 DATE OF PRONOUNCEMENT 08.03.2021 O R D E R PER SHAMIM YAHYA (AM) :- BY WAY OF THIS MISCELLANEOUS APPLICATION ASSESSEE SEEKS RECTIFICATION OF THE MISTAKE APPARENT FROM RECORD IN ITA NO. 570 & 7 11/MUM/2018 VIDE ORDER DATED 6.1.2020. 2. IN MISCELLANEOUS APPLICATION IT HAS BEEN CONTEND ED THAT IN THE AFORESAID APPEALS ONE ISSUE RELATED TO ALLOWABILITY OF DEPREC IATION ON NON-COMPETE FEES PAID BY THE ASSESSEE. THAT VIDE THE IMPUGNED ORDER THE ITAT HAS DISMISSED THE APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LE ARNED CIT(A). IT IS MENTIONED THAT THE ITAT HAS NOTED THAT THE ASSESSING OFFICER HAS RELIED UPON THE HON'BLE DELHI HIGH COURT DECISION IN THE CASE OF SHARP BUSI NESS SYSTEM (SUPRA). IT WAS FURTHER NOTED THAT AS AGAINST THE ABOVE LEARNED CIT (A) HAD RELIED UPON THE CASE LAWS FROM HON'BLE KARNATAKA HIGH COURT AND HON'BLE MADRAS HIGH COURT, WHICH WERE IN FAVOUR OF THE ASSESSEE. IT IS MENTION ED THAT THE TRIBUNAL NOTED THAT NO DECISION OF HON'BLE JURISDICTIONAL HIGH COU RT ON THE SAID ISSUE HAS BEEN CITED. HENCE, FOLLOWING THE JUDGEMENT OF HON'B LE SUPREME COURT IN THE CASE OF VEGETABLE PRODUCTS LTD. (SUPRA) THE ITAT HA S UPHELD THE ORDER OF M/S. ABBOTT HEALTHCARE PVT. LTD. 2 LEARNED CIT(A) AND DISMISSED THE REVENUES APPEAL. THE ASSESSEE FURTHER SUBMITS THAT THE ITAT IS WRONG IN HOLDING THAT THE ORDER OF LEARNED CIT(A) IN ACCORDANCE WITH THE JUDGMENT OF HON'BLE MADRAS & HO N'BLE KARNATAKA HIGH COURT. THAT IN THOSE CASES DEPRECIATION WAS ALLOWED . IT HAS BEEN FURTHER SUBMITTED THAT THE ITAT HAS FURTHER OBSERVED THAT N O DECISION OF HON'BLE JURISDICTIONAL HIGH COURT HAS BEEN CITED BEFORE THE BENCH. IT HAS BEEN SUBMITTED THAT THE JUDGEMENT OF HON'BLE JURISDICTIO NAL HIGH COURT IN THE CASE OF PRINCIPAL CIT VS. PIRAMAL GLASS LIMITED (20 19) 6 TMI 891 HAS NOW COME TO THE NOTICE OF THE ASSESSEE AND IN THAT CASE DEPRECIATION FOR NON- COMPETE FEES WAS ALLOWED. QUOTING THE DECISION OF H ON'BLE SUPREME COURT IN THE CASE OF ACIT VS. SURASHTRA KUTCH STOCK EXCHANGE LTD. (2008) 305 ITR 227 AND IN THE CASE OF MEPCO INDUSTRIES LTD. MADURAI VS . CIT (2010) 1 SCC 434 THE ASSESSEE HAS SUBMITTED THAT THE MISTAKES HAVE C REPT IN THE ITATS ORDER AND THE SAME SHOULD BE RECALLED. 3. UPON HEARING BOTH THE COUNSEL AND PERUSING THE R ECORDS, A QUERY WAS PUT TO THE LEARNED COUNSEL OF THE ASSESSEE THAT IN THE AFORESAID ORDER OF THE ITAT, THE GROUND RELATING TO AMORTIZATION/DEPRECIAT ION FOR NON-COMPETE FEES WAS ONLY IN REVENUES APPEAL AND THE ITAT HAS UPHEL D THAT ORDER OF LEARNED CIT(A) AND DISMISSED THE LEARNED CIT(A) REVENUES G ROUND. THEN HOW CAN THE ASSESSEE EXPECT THAT THE ITAT SHALL GRANT MORE RELI EF TO THE ASSESSEE THAN BY DISMISSING REVENUES APPEAL. AT THAT POINT LEARNED COUNSEL ORALLY SUBMITTED THAT THERE WAS AN ADDITIONAL GROUND IN ASSESSEES A PPEAL ON THIS ISSUE WHICH THE ITAT HAS NOT ADJUDICATED. IN THIS REGARD THE AS SESSEE HAS POINTED OUT THAT IN AN APPLICATION DATED 5 TH APRIL 2019 IN ASSESSEES APPEAL WHEREIN THE ASSESSEE HAD RAISED AN ADDITIONAL GROUND. THAT LEAR NED CIT(A) OUGHT TO HAVE ALLOWED THE CLAIM OF DEPRECIATION AMOUNTING TO RS. 1,28,38,65,000/- FOR NON- COMPETE FEES U/S. 32 OF THE I.T. ACT. IN THIS REGAR D THE ASSESSEE HAS ALSO PRODUCED PHOTOCOPY OF THE RECEIPT FROM THE ITAT. M/S. ABBOTT HEALTHCARE PVT. LTD. 3 4. UPON CAREFUL CONSIDERATION, WE NOTE THAT IN MISC ELLANEOUS APPLICATION THERE IS NO WHISPER OF ADDITIONAL GROUND REMAINING UN-ADJUDICATED. WE NOTE THAT ADDITIONAL GROUND WAS NOT ADJUDICATED BY THE I TAT AS THERE WAS NO DISCUSSION ON THE SUBJECT. HOWEVER, SINCE THE ASSES SEE HAS SUBMITTED PHOTOCOPY OF THE ITAT RECEIPT FOR FILING ADDITIONAL GROUND IN THE INTEREST OF JUSTICE, WE DEEM IT APPROPRIATE THAT ITA NO. 570/MU M/2018 BE RECALLED ONLY TO CONSIDER THE VERACITY AND ADJUDICATION OF THE SA ID ADDITIONAL GROUND RAISED BY THE ASSESSEE. 5. IN THE RESULT, ITA NO. 570/MUM/2018 IS RECALLED ONLY TO THE EXTENT OF CONSIDERING THE CLAIM OF THE ASSESSEE CLAIM REGARDI NG ADDITIONAL GROUND AS DISCUSSED ABOVE. 6. IN THE RESULT, MISCELLANEOUS APPLICATION IS ALLO WED IN TERMS OF ABOVE. PRONOUNCED IN THE OPEN COURT ON 8.3.2021. SD/- SD/- (PAVANKUMAR GADALE) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED : 08/03/2021 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR) PS ITAT, MUMBAI
