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TMI Blog2018 (12) TMI 631X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee by the decision in the case of CIT vs. Smifs Securities Ltd. [2012 (8) TMI 713 - SUPREME COURT]. Hence, the claim of the deprecation on non compete fee can be considered on the anvil of these case laws. Hence, the view adopted by the A.O. cannot be said to be not a possible one. Hence for the proposition that if there are two views possible and the A.O. has adopted one view, with which the ld. CIT is not in agreement, with the order cannot be said to be liable to be visited with the revisionary order by the ld. CIT u/s. 263. Accordingly, the order under 263 passed by the ld. CIT is hereby quashed. Decided in favour of the assessee. - ITA No.2613/Mum/2015 - - - Dated:- 3-12-2018 - SHRI SHAMIM YAHYA, AM AND SHRI SANDEEP GOSAIN, JM For The Appellant : Shri P. J. Pardiwala And Shri Nishant Thakkar For The Respondent : Shri R. P. Meena ORDER Per Shamim Yahya, A. M.: This appeal by the assessee is directed against the order of the learned Commissioner of Income Tax-1, Mumbai ( ld.CIT for short) dated 03.03.2015 and pertains to the assessment year (A.Y.) 2010-11. 2. The grounds of appeal raised read as under: 1. The learned CIT err ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of non competition in Lakme brand itself. Also, Hindustan Unilever Ltd. is a group concern and holding Company. That therefore, to think of competition from this Company is nothing but an eye-wash. That therefore, prima facie there is no question of any expenditure either in the form of non compete fees itself or in the form of depreciation on the amount of non compete fee. That in view of the same, a Show Cause Notice u/s.263 of the Act was issued to assessee proposing to revise the assessment. 5. The ld. CIT noted the response of the assessee on the notice issued as under: Employees' contribution towards PF and ESIC He has argued that the allowability of employees' contribution to PF and ESIC is a highly debatable issue and there are decisions in favour of assessee that when the amounts are paid before the date of filing of Return of Income, deduction of the same has to be allowed. He has further argued that provisions of Section 43B are squarely applicable to employees' contribution towards PF and ESIC. He has also argued that in the course of assessment proceedings, Assessing Officer had all the details available with him and therefore, rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of employees' contribution to be income in the hands of assessee and Section 36(l)(va) deeming payment of be same to the account of employees' in time to be expenditure in the hands of assessee are specific provisions under the Act. Once an item is covered by the specific provisions of the Act, the general provisions have to be ignored. This the A.O. has totally missed. 7.2 The Assessing Officer has also ignored the fact that Section 2(24)(x) and Section 36(1)(va) are deeming provisions under the Act and in interpretation of the deeming provision, nothing can be added to what is specified in the deeming provision. Therefore, whatever is mentioned in Section 43B cannot be imported in to interpret Section 36(l)(va) r.w.s. 2(24)(assessee) of the Act. 7.3 I find that A.O. has totally misunderstood the provisions of the Act and therefore order of assessment is erroneous. An item of expenditure which should have been disallowed u/s.36(l)(va) has been allowed by A.O. The order is therefore prejudicial to interest of revenue. The provisions of Section 263 of the Act are squarely attracted. 8. Non compete fee 8.1 The issue of non compete fee has not been analyzed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us and is prejudicial to the interest of revenue because the possibility of disallowing depreciation has been totally missed. 9. In view of the above, it is held that the order under consideration is erroneous and prejudicial to the interest of revenue. It is therefore set aside with directions to A.O. to frame the assessment afresh and decide the issue on merits after looking into the issues that have been raised in this order herein above. 7. Against the above order, the assessee is in appeal before us. 8. We have heard both the counsel and perused the records. The ld. Counsel of the assessee submitted that as regards the issue of disallowance of payment for provident fund and ESICG are concerned; the same is duly covered in favour of the assessee by the decision of Hon'ble jurisdictional High Court in the case of CIT vs. Ghatge Patil Transport Ltd . [2015] 53 taxmann.com 141 (Bom). 9. Hence, the ld. Counsel of the assessee submitted that the assumption of jurisdiction u/s.263 of the Act is not sustainable. 10. As regards the issue of depreciation on non complete fee, the ld. Counsel of the assessee submitted that the claim of depreciation was very much there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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