TaxTMI 
TaxTMI 
2015 (5) TMI 544
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....tting that neither there is concealment of income nor furnished inaccurate particular of such income. It was also pleaded that the impugned issue is covered in favour of the assessee in his own case for AY 2006-07 and 2007-08 (ITA no.4564/Mum/2009 and 7464/Mum/2010) order dated 26/02/2015. This factual matrix was not controverted by the Revenue. 2.1. We have considered the rival submissions and perused the material available on record. Before coming to any conclusion, we are reproducing hereunder the relevant portion of the order of the Tribunal dated 26/02/2015 for ready reference and perusal:- "2. The assessee is a civil contractor following mercantile system of accounting. The return for A.Y. 2006-07 was filed on 20.10.2006 declaring total income of Rs. 2,19,22,334/-. The return was selected Shri Burgis Keki Daruwalla 3 for scrutiny assessment and accordingly statutory notices were issued and served upon the assessee. 3. While scrutinizing the return of income, the AO noticed that the assessee has claimed depreciation on the tenancy right at Rs. 3S.7S lacs. perusal of the depreciation chart showed that the assessee had acquired office premises tenancy right for Rs. 1.43....
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....he Tribunal in favour of the revenue and against the assessee in the case of Dabur India Limited in ITA No. 4679jMum/2012 for A.Y. 2009-10, vide order dated 23.08.2013 While dismissing the claim of the assessee, the Tribunal at para 4 of Its order held as under: Shri Burgis Keki Daruwalla 5 4. We are not convinced with the contention advanced on behalf of the assessee. The manifest reason is the following .definition of the term "intangible" asset given In Explanation (3) to section 32(1) :- "(b) intangible assets, being know-how, patents, copyrights, trademarks, licences, franchises or any other business or commercial rights of similar nature". 5. A bare perusal of the definition of intangible assets on which depreciation is available u/s 32 makes it vivid that the intangible assets so classified. are know-how; patents, copyrights, trade marks, licences, franchises or any other business or commercial rights of similar nature. We are reminded of the rule of nosticur a sociis which simply means that the general words associated with the specific words draw their meaning from the company they keep. This rule has been quoted with approval by the Hon'ble Supreme Court in s....
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.... is of no consequence. In that case the question was whether depreciation can be granted on the Bombay Stock Exchange Membership card. As the ownership of such Membership Card is sine qua non to conduct the business on the floor of stock exchange, the Hon'ble Supreme Court held it to be an intangible asset eligible for depreciation. Such Membership card is a permission to do the business as share broker akin to 'licence' and not a place for carrying on such business akin to 'tenancy right'. In our considered opinion, this judgment does not advance the case of the assessee any further. To sum up, we hold that since the tenancy right cannot be treated as an intangible asset, there is no question of allowing depreciation on it. We, therefore, approve the view taken by the authorities below on this issue. This ground fails. Respectfully following the decision of the co-ordinate Bench, assessee's claim for depreciation @25% on tenancy right is dismissed. Shri Burgis Keki Daruwalla 7 5. Now coming to the alternative claim of the assessee, we find that C!T(A) has very elaborately considered this claim in the light of various provisions of the agreement. Follo....
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....full dominion over the property and the lease in perpetuity is irrevocable." While allowing the claim of depreciation at the rates applicable to a building, the CIT(A) has considered the decision of the Honble Supreme Court in the case of Mysore Minerals Ltd, 239 ITR 775 and the decision of the Hon'ble Karnataka High Court in the case of Bharat Earth Movers Ltd. 244 ITR 547. The OT(A) finally concluded by observing that "Here is a case of acquiring a business premises in the name of tenancy, In the instant case the appellant has acquired the property and has become the virtual owner. He is also the actual user. Therefore he is entitle to depreciation ... ", 6. After giving a thoughtful consideration to the findings of the CIT(A) and in the light of the facts of the case, in our considered opinion no interference is called for. We accordingly uphold the findings of the CIT(A) to Shri Burgis Keki Daruwalla 9 this extent. However on perusal of the factual matrix, we find that the assessee has taken the possession from 01.05.2005 but the actual tenancy agreement was made from 10.10.2005. In our considered view this date i.e. 10.10.2005 should be taken as the date of possessio....