TMI Blog2012 (6) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the existing trademark, then the same shall be allowed - Held that:Assessing Officer is directed to verify and decide this issue, after giving reasonable opportunity of being heard to the assessee - ITA No. 5482/Mum/2010 - - - Dated:- 5-10-2011 - T.R. Sood, Vijay Pal Rao, JJ. Ketan Panchmia for the Appellant Devi Singh for the Respondent ORDER Vijay Pal Rao: This appeal by the assessee is directed against the order dated 3.5.2010 of the CIT(A) for the AY 2007-08. 2 The assessee has raised the following effect grounds in this appeal: i) The CIT(A) has erred in confirming the action of the Assessing Officer in reworking without prejudice the claim u/s 80OIB by excluding DEPB benefits received from calculation of the profits of the purpose of deduction/s 80IB. He failed to appreciate that exporte3d goods were also manufactured in the unit, which is eligible for deduction and DEPB benefits cannot be treated as not derived from the undertaking. The appellant prays that no adjustment be made to the profits of the undertaking as shown by the appellant and claim u/s 80IB be allowed in full as claimed by the appellant. ii) The CIT(A) h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in 317 ITR 218(SC). Accordingly, this issue is decided against the assessee. 5. Ground no.2 is regarding disallowance u/s 80IA in respect of profit of windmills. 6. We have heard the ld AR as well as the ld DR and considered the relevant material on records. At the outset, we note that this issue has been considered and adjudicated by the Tribunal in assessee's own case for the AY 2006-07 in ITA No.3355/Mum/2009 vide order dated 10.6.2011. 6.1 The Tribunal in para 6 of its order, cited supra, has considered and decided this issue as under: "6. The second unit at Sangli and Satara started commercial production in the financial year 2000-2001. The learned A.R. contended that the benefit of the judgment in the case of Velayudhaswamy spinning Mills (P) Ltd. (supra) should be granted at least to the extent of profit from this eligible unit in preference to the Special Bench order. Again we are not convinced with the argument advanced on behalf of the assessee for the reason that the Hon'ble High court was considering a case in which the eligible business was the only source of income. It can be noticed from page 70 of the report. The discussion starts from para 13, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmencement of commercial production in the eligible unit, which was set off, the ratio decided of the judgment of the Hon'ble Madras High Court would not apply. But for the judgment in Velayudhaswamy spinning Mills (P) Ltd. (supra), the ld. AR has nothing to distinguish the special bench order. In that view of the matter it is seen that the judgment rendered in Velayudhaswamy spinning Mills (P) Ltd. (supra) is not applicable to the facts of the present case. Rather the authorities below were justified in jettisoning the claim of the assessee on deduction u/s 80-IA by relying on the Special Bench order in the case of Goldmine Shares and Finance (P) Ltd. (supra). We, therefore, uphold the impugned order on this issue. This ground is not allowed." 6.2 Accordingly, respectfully following the order of the Tribunal in assessee's own case, we decide this issue against the assessee. 7. Ground no.3 is regarding capitalisation of software expenses. 8. We have heard the ld AR as well as the ld DR and considered the relevant material on records. At the outset, we note that this issue has been considered has and adjudicated by the Tribunal in assessee's own case for the AY 2006- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded the issue as under: 10. We have heard the rival submissions and perused the relevant material on record. It is seen that the above referred payment was made by the assessee to M/s.DePenning and DePenning which is not a legal firm but engaged in providing services relating to patent, trademark, design and copyright. Copies of bills issued by M/s.DePenning and DePenning are available at pages 32 to 34 of the paper book from which it can be seen that the payment was made by the assessee towards filing patent application including translation fee/amendment fee in Canada, Russia and Taiwan. It is noticed that firstly there is nothing like legal charges involved in such payments. Secondly, this payment has been made for obtaining trademark. As trademark have been included u/s.32(1)(ii) in the category of 'Intangible asset' after 1.4.1998, the costs incurred by the assessee in the instant case are nothing but cost of trademarks. Such amount would be capitalized and qualify for depreciation as per law. The learned A.R. has relied on the judgement of the Hon'ble Supreme Court in the case of CIT vs. Finlay Mills Ltd. [(1951) 20 ITR 475] in which it was held that the expenses for regi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
