2021 (7) TMI 1410

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....peal no 4 of the Revenue in para nos 22 to 24 of the order. The said ground of appeal is reproduced below for ready reference. "On the facts and in the circumstances the case and in law the Ld. CIT(A) erred in deleting the addition on account of depreciation on fixed assets u/s. 40a(ia) read with section 37 in respect of capitalization of professional fees capitalised of certain expenses FCCB Premium and FCCB Issue Expenses." (b) The Applicants submit that during the course of hearing, the Authorised Representative of the Applicants submitted that the issue as regards the depreciation is already decided in view of the orders of the Tribunal in the Applicants' own case for income-tax assessment year 2005-06 in ITA No. 3375/Mum/2010 (....

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....e in sending the matter back to him, with no new facts coming on record. Section 40(a)(ia) is a legal issue decided by the Assessing Officer which was before the Honourable Tribunal. The Applicants thus, submit that the Honourable Tribunal ought to not have sent the matter back to the Assessing Officer for fresh adjudication. 2.2 (a) The Honourable Tribunal has disposed of grounds of appeal nos 5 and 6 of the Revenue (though mentioned as 6 and 7) in para nos 25 and 26 of the impugned order. The said grounds of appeal are reproduced below for ready reference- 5. "On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in deleting the addition by way of disallowing FCCB Premium." 6. ''On the facts and ....

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.... multiple occasions has mentioned assessment year as "2014-15" which ought to have been "'2008-09" and hence, a mistake apparent from record" 3. We have heard rival submissions and perused the materials available on record. We find that original assessment for A.Y. 2005-06 was completed u/s. 143(3) of the Act on 30/08/2007 wherein depreciation on fixed assets in respect of items falling u/s. 40(a)(ia) r.w.s. 37(1); depreciation on capitalization of professional fees; depreciation on capitalization of certain expenses; depreciation on capitalization of FCCB premium and capitalization of FCCB issue expenses were duly allowed by the ld. AO. Thereafter, this assessment was sought to be revised by the ld. CIT u/s. 263 of the Act. This Tribu....

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.... to this issue and hence, the provisions of Section 40(a)(ia) of the Act could not be made applicable for A.Y. 2007-08. We find that directions of this Tribunal to examine the allowability of expenses u/s. 40(a)(ia) of the Act for A.Y. 2007-08 would only result in impossibility of performance on the part of assessee in as much as no expenditure was incurred by the assessee in A.Y. 2007-08 thereof. The expenditure falling within the ambit of Section 40(a)(ia) had been incurred by the assessee in A.Y. 2005-06 on which depreciation is already allowed by the ld. AO in A.Y. 2005-06. Hence, the A.Y. 2007-08 is only consequential year of allowing depreciation on fixed assets and expenses falling under 40(a)(ia) of the Act. Hence, we are inclined t....