TMI Blog2017 (9) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... -8-2017 - SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER For The Revenue : Shri V Justin For The Assessee : Shri Rakesh Joshi ORDER PER RAMIT KOCHAR, Accountant Member This appeal, filed by the Revenue, being ITA No. 5293/Mum/2015, is directed against the appellate order dated 26th August, 2015 passed by learned Commissioner of Income Tax (Appeals)- 6, Mumbai (hereinafter called the CIT(A) ), for assessment year 2011-12, appellate proceedings before learned CIT(A) had arisen from the assessment order dated 25th February, 2014 passed by learned Assessing Officer( hereinafter called the AO ) u/s 143(3) of the Income-tax Act, 1961 (hereinafter called the Act ). 2. The grounds of appeal raised by the Revenue in the memo of appeal filed with the Income-Tax Appellate Tribunal, Mumbai (hereinafter called the tribunal ) read as under:- On the facts and in the circumstances of the case and in law, the learned CIT{A} has erred in allowing relief to the assessee to the extent impugned in the grounds enumerated below: 1. The order of the CIT{A} is opposed to law and facts of the case. 2. On the facts and cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee filed an appeal before the ld. CIT(A). The ld. CIT(A) following earlier appellate order passed by learned CIT(A) in assessee s own case for assessment year 2007-08 and 2009-10 wherein learned CIT(A) granted relief to the assessee, and also by following orders passed by the tribunal for assessment years 2009-10 wherein tribunal dismissed the appeal of the Revenue and also by following the order of the Hon ble Bombay High Court in ITA No. 623 of 2012 dated 11-03-2014 in assessee s own case for assessment year 2007-08 wherein Hon ble Bombay High Court dismissed the appeal of Revenue, allowed the appeal of the assessee for the impugned assessment by holding as under, vide appellate order dated 26-08-2015:- 4.2 I have carefully considered the facts of the case and the submission of the AR. I have also gone through the orders of the lcl.CIT (A), Hon'ble ITAT for A.Y. 2009-10 2007-08 and also the order of Hon'ble High Court for A.Y. 2007-08 in ITA No.623 of 2012 dated 11th March,2014. Similar issue had come up for consideration before the Hon'ble ITAT and Hon'ble High Court in appellant's own case for various assessment years and the same was decid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aced in file). 8. We have considered rival contentions and also perused the material available on record. We have observed that the assessee company is engaged in the business of business centre and all other ancillary services. The assessee company has entered into a joint venture agreement with MMTC Ltd. on 15-10-2009 which is valid for 15 years to carry on business of running a business centre known as Sunteck Centrako from fourth to eighth floor of MMTC House at C-22, Bandra Kurla Complex, Bandra (East) Mumbai. The assessee has claimed certain expenses which were claimed to be incurred on repairs and maintenance aggregating to ₹ 67,87,049/- and the A.O. treated the same as capital expenditure and allowed depreciation at the rate of 10% which works out to ₹ 6,78,705/-. We have observed that in assessee s own case the Hon ble Bombay High Court in its order in ITA 623 of 2012 dated 11th March, 2014 for assessment year 2007-08 has allowed relief to the assessee by holding the repairs and maintenance expenses incurred by the assessee to be revenue expense. The order of the Hon ble Bombay High Court in assessee s own case in ITA no. 623 of 2012 vide orders dated 11.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and has preferred an appeal before the Hon'ble High Court. However, the Ld. A.R. of the assessee has brought our attention to the order dated 11.03.14 of the Hon'ble Bombay High Court passed in the own case of the assessee for A.Y. 2007-08 vide ITA No.623 of 2012 wherein the Hon'ble Bombay High Court has upheld the order of the Tribunal for A.Y. 2007-08. Thus, the finding of the Tribunal that the expenditure incurred by the assessee for maintaining furniture, fixtures etc. for running the business centre were Revenue in nature and thus allowable has been upheld by the Hon'ble Bombay High Court. Thus, the issue is now squarely covered by the decision of the Hon'ble Bombay High Court in the own case of the assessee. Thus, the claim of the expenditure by the assessee on this issue for A.Y. 2005-06, 2006- 07 2010-11 is accordingly allowed. We have observed peculiar findings by the learned AO in his assessment order for the impugned assessment year wherein he has categorically held that these expenses of ₹ 67,87,049/- has brought into existence an asset, which is intended to provide enduring benefit to the business of the assessee. The AO has categori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... business of the assessee. We are also conscious that Hon ble Bombay High Court in a recent decision dated 29.06.2016 in the case of RPG Enterprises Limited v. DCIT reported in (2016) 386 ITR 401(Bom.), wherein Lordships held that where expenditure has been incurred by taxpayer under tenancy agreement, which was claimed by the tenant-taxpayer to be repairs and maintenance but, in fact, it was on account of renovation of premises, leading to enduring benefit to tax-payer in as much as it enabled tax-payer to accommodate larger number of employees and also facilitated its trading operations and this benefit would be available to tax-payer for a long period of time, it was held by Lordships to be capital in nature. Thus, keeping in view facts and circumstances of the case before us, we are inclined to set aside and restore this issue back to the file of the AO for denovo determination of the issue on merits in accordance with law keeping in view ratio of decision of Hon ble Bombay High Court in the case of RPG Enterprises Limited v. DCIT(supra) as is applicable to the nature of the expenditure incurred by the assessee keeping also in view that the assessee is holding the premise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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