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TMI Blog2010 (5) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... s an asset for allowing depreciation. Held that: it would be necessary to note that the distinguishing features in the case of Khandwala Finance Limited (a decision of the tribunal) which have been pointed out during the course of submissions by Counsel for the assessee are sufficient for this Court to hold that an opportunity should be granted to the petitioner to place its case on the applicability or otherwise of the decision in Khandwala Finance Limited before the Tribunal. – matter remanded back to tribunal - 794 OF 2010 - - - Dated:- 5-5-2010 - Dr. D.Y. Chandrachud J. P. Devadhar, JJ. Mr.J.D. Mistry, Senior Advocate with Ms.Asifa Khan for the petitioner. Mr.Vimal Gupta for the respondents. JUDGEMENT ORAL JUDG ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowable as revenue expenditure under Section 37(1). The Tribunal, by its order dated 30 May 2008, held that the membership card could not be considered as an asset for allowing depreciation. Hence, the order of the Commissioner (Appeals) on this issue was reversed. On the alternative contention of the assessee, the Tribunal, followed its own decision in the case of Deputy Commissioner of Income Tax V/s. Khandwala Finance Limited reported in (2008) 22 SOT 1 and held that the expenditure incurred to acquire the card would not be allowable under Section 37(1). 4. The assessee filed a Miscellaneous Application under Section 254(2). The ground on which the application was filed was that the Tribunal, while relying upon the decision of a coo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring on behalf of the assessee is that there were distinguishing features in the case which came up before the Tribunal in Khandwala Finance Limited and if an opportunity was granted to the assessee, these distinguishing features would have been brought to the notice of the Tribunal. Placing reliance on para 17 of the judgment of the Tribunal in Khandwala Finance Limited, Counsel submitted that in that case the concurrent finding of fact was that the deposits which were placed with the National Stock Exchange were refundable deposits. The Tribunal held that a deposit cannot be termed as an expenditure since in order to claim a deduction as expenditure, the amount should have been spent by the assessee as an amount paid out or paid away and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon a judgment which was not cited by either party before it. In each case, it is for the Court to consider as to whether a prima facie or arguable distinction has been made and which should have been considered by the Tribunal. It is in this view of the matter that we had called upon Counsel appearing on behalf of the assessee to at least prima facie indicate before this Court the grounds on which the decision in Khandwala Finance Limited was sought to be distinguished. If we were to be of the view that the decision in Khandwala Finance Limited was squarely attracted to the facts of the present case, we may not have been inclined to remand the proceedings. An order of remand cannot be an exercise in futility. However, for the reasons wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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