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TMI Blog2015 (10) TMI 1457X X X X Extracts X X X X X X X X Extracts X X X X ..... A.Y. 1992-93. - Decided in favour of assessee Disallowance of depreciation on the written down value of foreign visitors’ expenditure - Held that:- This issue has been decided by the Tribunal in assessee’s own case in A.Y. 1992-93 wherein the Tribunal has held that the expenditure incurred on foreign visitors form part of the cost of the project therefore would be eligible for depreciation as per Sec. 32 of the Act. - Decided in favour of assessee Taxability of Receipt of non compete fees - Held that:- Once the Tribunal has accepted that the total sale consideration is inclusive of non-compete fees and once the Tribunal has decided the issue on a total consideration treating it as a slum sale, the issue relating to non-compete fees be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that there is a mistake apparent from the record and need to be rectified by the Tribunal. 3. We have carefully perused the order of the Tribunal in ITA No. 498/M/03. We find force in the contention of the Ld. Counsel. The additional ground No. 1 2 remained unadjudicated. We, accordingly take up the additional grounds remained unadjudicated. 4. Additional ground No. 1 relates to the disallowance of proportionate amount of premium paid on redemption of non-convertible debentures. 5. This issue is decided by the Tribunal in assessee s own case in A.Y. 1992-93 vide ITA No. 1584/Mum/99 and ITA No. 1360/M/99 and C.O. No. 286/M/99 dt. 12.10.2011. This issue has been considered by the Tribunal in A.Y. 1992-93 vide ground No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he next grievance of the assessee relates to the non compete fees of ₹ 31.45 crores. 9. The facts relating to this issue are that non-compete fees received by the assessee was part of the total consideration and the AO taxed it as income from business u/s. 28 of the Act. The First Appellate authority decided this issue against the assessee on the basis that Sec. 28(va) is retrospective. However, the Ld. CIT(A) explicitly upheld the findings that non-compete fees of ₹ 31.45 crores is part of the total sale consideration of ₹ 130.99 crores. 10. When the matter travelled upto the Tribunal, the Tribunal held that non-compete fees u/s 28(va) is prospective and is w.e.f. 1.4.2003. To this extent, the Ld. Senior Counsel sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided. The Ld. Senior Counsel further pointed out in A.Y. 1993-94, the Tribunal has set aside the matter only with a direction to see that the amount claimed is as per actuarial valuation certificates. 12.1 While deciding this issue during the year under consideration, the Tribunal has followed the orders of the Co ordinate Bench for A.Y. 1994- 05 and 1993-94. It is the say of the Ld. Counsel that during the year under consideration only incremental liability was there towards payment of pension under the VRS scheme. There is no need of any actuarial valuation certificates. Therefore, the directions of the Tribunal have resulted into error which needs to be rectified. 13. After giving a thoughtful consideration, we find force in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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