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TMI Blog2012 (10) TMI 711X X X X Extracts X X X X X X X X Extracts X X X X ..... 234C of the Act. 6. The Order passed by the learned Assessing Officer is illegal, bad in law, ultr virus and contrary-to the provisions of the law and facts and is passed without application of mind and in violation of the principles of natural justice. 7. Each one of the above grounds of appeal is independent and without prejudice to each other. . 8. The Appellant craves leave to add, to alter or to amend any of the ground of appeal mentioned hereinabove. 3 Ground number 1, 6 to 8 are general in nature and therefore, no specific finding is required. 4 At the time of hearing, the learned AR of the assessee has submitted that the assessee does not press ground number 3 and the same may be dismissed as not pressed. The learned D.R. has no objection, if the ground number 3 of the assessee's appeal is dismissed, as not pressed. Accordingly, we dismiss the ground number 3 being not pressed. 5 Ground number ground number 2 regarding disallowance of Rs. 49, 99, 000/- under section 35D the I T Act. 5.1 The assessee company was incorporated on 11th March 2004 and it's main object to carry out the business of promotion, development and operations of infrastructure facilities and serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is settled principle that the provisions of law capable of two interpretations should be interpreted in manner so as to give the benefit to the assessee. The ld AR of the assessee has then referred schedule X of Companies Act and submitted that the Companies Act requires the fee to be paid even by a existing company to the ROC and therefore, the fee paid to the ROC for increase in authorised capital falls under section 35D (2)(iii). 5.4 On the other hand, the learned DR has relied upon the orders of the authorities below and submitted that the Assessing Officer has decided the issue by following the decision of honourable Supreme Court in case of Punjab State Industrial Development Corporation Ltd. v. Commissioner of Income-tax reported in 225 ITR 792 and in case of Brooke Bond India Ltd. v. Commissioner of Income-tax reported in 225 ITR 798 as well as the decision of honourable Delhi High Court in case of Commissioner of Income-tax v. Hindustan Insecticides Ltd. reported in 250 ITR 338 wherein it has been held that the fee paid for increase in share capital is not fee for registration of company and hence is not amortised even under section 35D (2 )( c)(iii). 6 We have considere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, nothing has been prescribed, so as to include the expenses as claimed by the assessee. Therefore the claim of the assessee is rejected. The assessee ha relied on the case of CIT Vs. Multi Metals Ltd 188 ITR 151. The facts of that case are totally different. In that case, the expenses were incurred for raising public issue of shares and therefore was held to be covered by Section 35D (2)(c)(iv). The assessee is not a public company and has not incurred any expenses on public issue and therefore the ratio of this decision is not applicable. The other cases relied by the assessee are also distinguishable on facts, Hence the claim of the assessee on account of amortization of expenses are disallowed in view of the above discussion." 6.1 The Assessing Officer disallowed the claim by following the decision of honourable Supreme Court in case of Punjab state industrial development Corporation and broke Brooke Bond India Ltd (supra). Further the honourable Delhi High Court in case of Hindustan Insecticides Ltd (supra) has decided an identical issue after considering and following the aforesaid decisions of honourable Supreme Court and held in para 3 and 4 as under: "We have hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice immediately before the increase." With reference to the said item, the Tribunal held that the additional fee is a registration fee on the difference in the nominal share capital and the increased share capital of the company and is covered by the said item. For coming to said conclusion the Tribunal observed that it has to be kept in view that the whole amount, which becomes the authorised share capital, would have attracted payment of fee at a particular figure at the point of time of original registration of the company. Merely because the share capital is increased subsequently as permissible under section 81 of the Companies Act, the fee paid on the increased capital does not cease to be registration fee. Learned counsel for the Revenue with reference to the various provisions of the Companies Act submitted that item 3 of Schedule X has no application to the facts of the case. There is a conceptual difference between registration of the company and action taken for increase of the share capital. Part II of the Companies Act deals with incorporation of a company and matters incidental thereto. Section 12 deals with mode of forming an incorporated Company. Sections 33 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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