TMI Blog2013 (5) TMI 610X X X X Extracts X X X X X X X X Extracts X X X X ..... on "non compete territory rights" - CIT(A) deleted the addition - Held that:- The disallowance of depreciation thus seems to have reached finality. The law is fairlv well settled that once AO accepts a particular position by not challenging the same in further appeal, it cannot be open to him to disturb the position having so reached finality, by appeal in another year. No doubt there is no res judicata in income tax proceedings but principles of consistency do play an important role in all walks of life as much as in the income tax proceedings. See Parashuram Pottery Works Ltd Vs ITO (1976 (11) TMI 1 - SUPREME Court). As there is not even a whisper of the reason for coming to the conclusion, on merits, as to why the depreciation on the int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessment year 2008-09 onwards. That is precisely what the learned Commissioner (Appeals) has held, and, thereby, rejected Assessing Officer's reliance on rule 8 D in computing disallowance under section 14 A. We, therefore, see no need to disturb the well reasoned findings of the CIT(A). We confirm the same and decline to interfere in the matter. 5. The appeal for the assessment year 2005-06 is, therefore, dismissed. 6. In ITA No. 575/Ahd/2013, i.e. revenue's appeal for the assessment y year 2006-07, the grievance raised by the Assessing Officer is as follows: That the learned CIT(A) has erred in law, and on facts, in deleting the addition of Rs 48,44,971 on account of disallowance of depreciation on "non compete territory rights" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the matter is sub judice before Hon'ble Gujarat High Court and the outcome of litigation is awaited, "this issue is to be decided by the AO in the light of final decision of Hon'ble High Court" and "hence, this ground of appeal is allowed subject to final outcome of Hon'ble Gujarat High Court" The Assessing Officer did not prefer any appeal, before the Tribunal, against this decision of the CIT(A). However, against the same directions for the assessment year 2005-06, the Assessing Officer did file an appeal before this Tribunal. However, rejecting this appeal at the threshold, a coordinate bench of this Tribunal, vide order dated 9th July 2010, observed as follows: We find that on the same issue on the identical facts the learned CIT(A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court had delivered judgment for the assessment year 2002-03 and quashed the reassessment proceedings under section 147 on the ground of jurisdiction. There was thus no adjudication on merits. However, the CIT(A) deleted the impugned disallowance of depreciation by observing as follows: .....the notice under section 148 dated 30th March 2004 for the AY 2002-03 has been quashed by Hon'ble High Court. Accordingly, the disallowance of depreciation on non compete territory rights in AY 2002-03 becomes untenable. Since the disallowance of depreciation in the AY 2003-04, 2004-05, 2005-06 and 2006-07 was made on the basis of disallowance of depreciation in the AY 2002-03. Accordingly, these disallowances have also become untenable as the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment in the case of Rajinder Nath Vs CIT[ 120 ITR 14). The relaxation under section 153(3), as held by Hon'ble Supreme Court in this case, comes to the rescue of the revenue only in respect of such findings or directions as are necessary for disposal of the matter. The matter having been decided on the ground of jurisdiction alone, there was no need to deal with the merits of the case, and, as such, following Hon'ble Supreme Court's judgment in the case of Rajinder Nath, the inherently limited scope of section 153(3) does not help the Assessing Officer. The disallowance of depreciation thus seems to have reached finality.The law is fairlv well settled that once Assessing Officer accepts a particular position by not challenging the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tmental Representative has not brought on record any material on record to justify the disallowance made by the Assessing Officer. When asked to address the matter on merits, he submitted that the issue can be restored to the file of the Assessing Officer so that merits can be examined. We donot think that course of action is permissible to us now that the deletion of similar disallowance, in the course of regular scrutiny assessment proceedings, has been accepted by the Assessing Officer for three immediately preceding assessment years. That will be unsettling the accepted and settled position for other assessment years, and contrary to the decision of the coordinate bench in the immediately preceding assessment year. However, as we have r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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