Commissioner of Income Tax-4 vs M/s. Kotak Securities Ltd.

This appeal by the Revenue u/s 260A of the Income Tax Act, 1961, arises from a decision of the Income Tax Appellate Tribunal dated 27 July 2010. The Assessment Year to which the appeal relates is Assessment Year 2004-05. The following questions of law have been raised by the Revenue:

(i) Whether on the facts and in the circumstances of the case, the Tribunal was right in law in allowing depreciation on the first stock exchange membership card purchased by the Assessee in the F.Y. 1995-96 when under the provisions of Section 32 of the Income Tax Act, depreciation on such an intangible asset is available if the asset is acquired on or after 01.04.1998;

(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the issue of bad debt is covered by the decision of the Special Bench in the case of Shreyas S. Morakhia (2010) 40 SOT 432 when the Revenue has not accepted the said decision and has filed an appeal against the said order in the Hon''ble High Court of Bombay;

(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in remitting the matter back to the file of the A.O. with a direction to examine and decide the issue in the light of the decision of the Hon''ble Jurisdictional High Court in the case of Prime Securities Ltd. after giving reasonable opportunity of hearing to the Assessee when the question of law involving levy of interest u/s 234C is still open.

Counsel appearing on behalf of the Revenue and Counsel appearing on behalf of the Assessee state that question (i) will stand governed by the judgment rendered today by this Court in companion Income Tax Appeal 206 of 2012 for Assessment Year 2002-03. In view of this statement, the first question will not raise any substantial question of law.

As regards the second question, both Counsel appearing on behalf of the Revenue and Counsel appearing on behalf of the Assessee state that the issue will stand covered in favour of the assessee and against the Revenue by the judgment of this Court dated 28 February 2012 in the Commissioner of Income Tax, Central-II vs. Shreyas S. Morakhia ITA 89 of 2011 decided on 28 February 2012. In view of the statement, question (ii) will not raise any substantial question of law.

As regards question (in), the Tribunal has, in paragraph 46 of its decision, adverted to the judgment of this Court in Prime Securities Ltd. vs. Assistant Commissioner of Income Tax (Investigation) (2011) 373 ITR 464 (Bom). The Tribunal has observed as follows:

In the case under consideration, neither the AO nor the CIT(A) has examined and brought on record that the assessee has committed default in payment of advance tax. After considering the facts of the case and in view of the decision of the Jurisdictional High Court in the case of Prime Securities Ltd. (supra), we remit the matter back to the file of the AO with a direction to examine and decide the issue in the light of the decision of the Hon''ble Jurisdictional High Court in the case of Prime Securities Ltd. (supra), after giving reasonable opportunity of hearing to the assessee.

Counsel appearing on behalf of the Revenue submits that the decision in Prime Securities Ltd. is clearly distinguishable on facts and the circumstances which existed in that case and which form the foundation of the judgment of the Division Bench and would not apply to the facts of the present case. Moreover, it has been pointed out that a Special Leave Petition, which was filed before the Supreme Court against the decision in Prime Securities (supra), was dismissed on 16 September 2011 with a specific observation that the Petition was dismissed on the facts of the case, leaving the question of law open. In the present case, it has been urged that the Assessing Officer does not have the power to waive or remit interest by virtue of Section 234B since the jurisdiction to do so is only conferred upon the Chief Commissioner of Income Tax, and the Director General by instructions of the Central Board of Direct Taxes, dated 26 June 2006. The Tribunal, as noted above, has considered it appropriate to restore the issue back to the Assessing Officer on the ground that neither the Assessing Officer nor the CIT(A) has considered as to whether there was a default on the part of the assessee in the payment of advance tax. Since the Tribunal has merely restored the issue to the file of the Assessing Officer, we are not inclined to entertain this appeal as giving rise to any substantial question of law since we are of the view that the order of the Tribunal, if appropriately construed, leaves open all questions to be decided by the Assessing Officer, including on the applicability of the decision of this Court in the case of Prime Securities (supra). In other words, the Assessing Officer would consider the entire issue as having been left open to determine in accordance with law.

For the aforesaid reasons, we do not consider that any substantial question of law would arise at this stage. The appeal is accordingly dismissed.