TMI Blog2020 (12) TMI 564X X X X Extracts X X X X X X X X Extracts X X X X ..... L MEMBER AND SH. PRASHANT MAHARISHI, ACCOUNTANT MEMBER Applicant by : Sh. R. M. Mehta, Adv Respondent by : Sh. F. R. Meena, Sr. DR ORDER PER SUCHITRA KAMBLE, JM This Misc. Application is filed by the assessee in respect of order dated 30.08.2019 passed by this Tribunal. 2. The Ld. AR submitted that the assessee during the year under consideration acquired the Wockhardt Group of hospitals pursuant to an agreement entered into on 24.08.2009. The said agreement included payment of non-compete fee of ₹ 15.50 cr which was capitalized by the assessee in its books of account, on which depreciation was claimed. In the assessment, the AO rejected the claim for depreciation on the ground that since TDS u/s 194L had b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the jurisdictional High Court in the case of Areva (Supra). iii) At Serial No. (iv) is the decision of the Ahmedabad Bench of the Tribunal allowing depreciation on non-compete fee referring to both the judgments of the Delhi High Court i.e. Areva and Sharp (Supra), which was not considered. iv) The assessee had as an alternative submission urged before the Tribunal that since the agreement between itself and Wockhardt had not been examined either by the AO or the CIT(A) the matter could be restored to the AO for a proper examination as had been done by the Delhi Bench of the Tribunal in the case of DCIT vs. Caparo Engg India P Ltd. in ITA 3661/2013, a decision cited during the hearing but not mentioned or considered. The subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taxmann.com 132 (Jodhpur- Tri.) d) Reliance Communications Ltd. vs. DCIT (2017) 183 TTJ (Mum) 388 e) Rohit Tandon vs. ITO (2017) 183 TTJ (Asr) 492 Thus, the Ld. AR submitted that the order of the Tribunal dated 30.08.2019 be rectified as per Section 254(2) of the Income Tax Act, 1961. 3. The Ld. DR vehemently opposed the Misc. Application and submitted that the Tribunal in the order dated 30.08.2019 has considered all the contentions of the Ld. AR made during the course of hearing. The Ld. DR further submitted that the case laws submitted by the Ld. AR were also considered by the Tribunal in the order and the Tribunal has rightly relied upon the jurisdictional High Court decision. Thus, there is no mistake apparent on re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this, in the present case the assessee, itself declared that the non-compete fee/payment was capital in nature. In case of CIT vs. Ingersoll Rand International Ind. Ltd. (2014) 48 taxamann.com 349 (Kar. HC), the Hon ble Karnataka High Court framed the question of law as to whether the Tribunal was correct in holding that non-compete fee being in the nature of capital expenditure, depreciation is to be allowed on the non-compete fee as it constitutes a commercial or a business right under Sec. 32(1)(ii) of the Act?. The Hon ble Karnataka High Court held the question in favour of assessee therein and also relied the decision of the Hon ble Delhi High Court in case of Areva T D India Ltd. (supra). In case of Pr. CIT vs. Ferronmatic Milacron ..... X X X X Extracts X X X X X X X X Extracts X X X X
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