TMI Blog2020 (4) TMI 459X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment, the assessment cannot be reopened. In this case, it is not the case of the Revenue that there was any negligence on the part of the assessee in disclosing the material facts relevant to the assessment years therefore, the CIT(A) has rightly allowed the appeals of the assessee and the same is confirmed. Expenditure incurred for registration of trade mark - Nature of expenditure - revenue or capital expenditure - HELD THAT:- This Tribunal is of the considered opinion that the trade mark is nothing but a capital asset. Admittedly, the assessee incurred the expenditure for registration of the trade mark in foreign countries therefore, any expenditure incurred by the assessee in connection with creation/establish of capital asset ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (4) to s. 10B of the Act. This aspect naming the judgment of the Madras High Court and the provisions of Section 10B (4) of the Act was not considered by the earlier Bench of this Tribunal when the issue was decided against the assessee. Therefore, this Bench of the Tribunal is of the considered opinion that the decision in the assessee s own case for the earlier assessment years may not be applicable for the year under consideration. Accordingly, the orders of the both the authorities below are set aside and the issue with regard to deduction u/s. 10B of the Act is remitted back to the file of AO. - ITA Nos.1906, 592 & 1578/Chny/2018, ITA No.1324/Chny/2018 - - - Dated:- 5-2-2020 - Shri N.R.S. Ganesan, Judicial Member And Shri S. J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed beyond four years, since there was wrong claim under Section 10(B) of the Act therefore, the CIT(A) is not justified in allowing the appeal of the assessee. 5. We heard Shri S. Sridhar, the Ld. Counsel for the assessee also and perused both the orders of lower authorities. There is not even whisper in the assessment order that there was any negligence on the part of the assessee in disclosing the particulars which is required for completing the assessment. It is also not in dispute that the assessment was reopened after four years therefore, the provisions of s. 147 of the Act will come into operation. Unless the AO establishes that there was any negligence on the part of the assessee in disclosing all the material facts relevant to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ld. Counsel and the Ld. Departmental Representative, this Tribunal is of the considered opinion that the trade mark is nothing but a capital asset. Admittedly, the assessee incurred the expenditure for registration of the trade mark in foreign countries therefore, any expenditure incurred by the assessee in connection with creation/establish of capital asset has to be necessarily be treated as a capital expenditure and the assessee cannot claim the same as revenue expenditure. However, as rightly submitted by the Ld. Counsel for the assessee, the assessee is entitled for depreciation. Therefore, the AO may allow depreciation at the applicable rate. 10. The next issue with regard to disallowance of expenditure u/s. 14A of the Act. Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entire issue with regard to the disallowance u/s. 14A of the Act is remitted back to the file of AO. The AO shall re-examine the matter afresh in the light of the material that may be filed by the assessee and decide the issue in accordance with law after giving a reasonable opportunity to the assessee. 13. The next issue arising for consideration is exemption claimed u/s. 10B of the Act. The Ld. Counsel for the assessee submitted that the assessee has also earned profit by doing job work during the available time. According to the Ld. Counsel for the assessee the profit of the undertaking has to be considered for exemption u/s. 10B of the Act. Placing reliance on the judgment of the Madras High Court in the case of Camiceria Apparels ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment years may not be applicable for the year under consideration. Accordingly, the orders of the both the authorities below are set aside and the issue with regard to deduction u/s. 10B of the Act is remitted back to the file of AO. The AO shall re-consider the issue in the light of judgment of Madras High Court in Camiceria Apparels India (P) Ltd (supra), under the provisions of sub s. (4) to s. 10B of the Act and thereafter decide the issue in accordance with law after giving a reasonable opportunity to the assessee. 16. In the result, the appeal filed by the Revenue in ITA Nos.1906, 592 1578/Chny/2018 for Assessment Years 2009-10, 2010-11 2011-12 stand dismissed. However, the appeal filed by the assessee in ITA No.1324/Chny ..... X X X X Extracts X X X X X X X X Extracts X X X X
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