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TMI Blog2018 (5) TMI 1755X X X X Extracts X X X X X X X X Extracts X X X X ..... Paras F. Jain ORDER PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. This appeal by the Revenue is directed against the order of the Ld. CIT(A)-9, Ahmedabad dated 14.07.2016 pertaining to A.Y. 2004-05 and following ground has been taken:. 1. The Ld. CIT(A) has erred in law and on facts in deleting the addition of ₹ 86,13,2817- on account of disallowance of depreciation on non-compete territory rights. 2. In this case, the assessee had challenged the rejection of rectification application u/s. 154 for allowing depreciation on non compete territory rights consequent to appellate orders including order of Gujarat High Court. The A.O. dealt with this issue in the order u/s.154 passed on 16/9/2015 and observation of the A.O. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the IT Act by holding reopening of the case invalid and notice u/s 148 null and void. However, the Hon'ble High Court in its order had made no observation on the merits of disallowance of depreciation on non-compete territory rights. Thus, the decision of the Hon'ble High Court does not call into question the validity of this disallowance. As such, the department is bound by this decision only to the extent of avoiding reopening of case u/s 147 and making an addition on this ground. But, for all the subsequent years the addition as made vide the original assessment order u/s 143(3), which is not in contravention of the court's decision. 4. In view of the above, the claim of allowance of depreciation is not expressly allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtment not filing the appeals for Assessment Years 2003-04 2004-05 and dismiss the appeal of revenue for Assessment Year 2005-06. And ld. CIT(A) rightly decided the matter in favour of assessee in view of the ITAT order for Assessment Year 2006-07 and in the said order, the Co-ordinate Bench has held that the A.O. has never given any independent reasons for the said disallowance and said matter had never been decided or examined on merits. 5. In support of its contention, the ld. A.R. cited an order of Co-ordinate Bench in ITA No. 574 575/Ahd/2013 in assessee s own case titled as Assistant Commissioner of Income Tax Vs. Rasna Private Limited for Assessment Year 2005-06 2006-07 and decided the appeal with following observation: 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here was no need to deal with the merits of the case, and, as such, following Hon'ble Supreme Court's judgment in the case of deletion of similar disallowance, in the course of regular scrutiny assessment proceedings, has been accepted by the Assessing Officer for three immediately preceding assessment years. That will be unsettling the accepted and settled position for other assessment years, and contrary to the decision of the coordinate bench in the immediately preceding assessment year. However, as we have reached this decision on somewhat peculiar facts of this case, in which an inaction of the revenue authorities has prejudiced their interests more than anything else, present decision cannot be an authority on the broad legal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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