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2019 (4) TMI 1307 - AT - Income TaxRectification of mistake u/s 254 - non consideration of decision refereed - an assessee in default” u/s 201(1) - HELD THAT:- We agree that there is a mistake apparent from record and needs rectification by dealing with the case law relied upon by the assessee. Since considerable time has passed after hearing of the appeals, we are of the opinion that both the parties should be given sufficient opportunity of hearing. Therefore, we deem it fit and proper to recall the order of the Tribunal. Rectification of mistake u/s 254 - penalty u/s 271C - allowability of depreciation claimed on such non-compete fee - HELD THAT:- In the assessee’s own case for the A.Y 2008-09, wherein the issue of payment of non-compete fee was considered. We find that the assessee had claimed it to be an intangible asset and depreciation thereon or to allow it as deferred revenue expenditure and the AO had rejected the assessee’s claim mainly on the ground that genuineness of the payment is not proved and that non-compete fee is not an intangible asset and therefore, depreciation thereon is not allowable. Tribunal had remitted the issue to the file of the AO for deciding afresh and also to decide the allowability of depreciation claimed on such non-compete fee. However, in the order of the Tribunal against the penalty u/s 271C for the A.Y 2008-09, it has been held that the contention of the assessee that the non-compete fee is the business expenditure of the assessee, has been upheld. This finding is thus an erroneous recording of facts and therefore, there is a mistake apparent from record.
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