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TMI Blog2023 (1) TMI 283X X X X Extracts X X X X X X X X Extracts X X X X ..... e considered and for such purpose the matter has been restored to the file of the Assessing Officer. Admittedly, before the Assessing Officer such a plea was not raised as the assessee contended that the expenditure was revenue in nature. No doubt, before the CIT(A) an alternative plea was raised which was considered and negatived but the order of the Special Bench enures in favour of the appellant which has held that the development fee paid to the Stock Exchange is capital in nature. Therefore, we are of the view that the issue has to be verified by the Assessing Officer in terms of the directions issued by the Tribunal and hence we find there is no substantial question of law arising for the consideration in this appeal. Accordingl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Income Tax Act, 1961 as amended and applicable to the appellant for the Assessment year 1996-97 is perverse ? ii) Whether on the facts and circumstances of the case, the Tribunal erred in not allowing depreciation on the Calcutta Stock Exchange membership card which is `a tool to trade in the business of share trading and broking business, hence akin to `a plant and eligible for depreciation as Plant under section 32(1)(i) of the Act and further in violation of the principles laid down by the Apex Court in case of Elecon Engineering Co. Ltd. (1987) 166 ITR 66 (SC) ? We have heard Mr. Gopal Lal Sharma, learned counsel appearing for the appellant/assessee and Ms. Smita Das De, learned standing counsel for the respondent/reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch of the Tribunal and payment of Rs.70 lacs on account of development fee paid by the assessee has been held to be capital in nature and therefore the claim for depreciation has to be considered in accordance with the provisions of the Act. For such reason the issue was restored to the file of the Assessing Officer to verify the claim in the light of the Special Bench decision of the Tribunal considering the same as capital expenditure, which otherwise was disallowed by the authorities below claimed as revenue expenditure by the assessee in the first place. Thus, the matter stood remanded to the Assessing Officer for de novo consideration in accordance with the provisions of the Act. Learned counsel appearing for the appellant placed re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the decision of the Special Bench nor as against the decision of the Tribunal impugned this appeal, revenue had not preferred any appeal. That apart, we note that in the impugned order the learned Tribunal has limited the scope of the direction by directing the plea of depreciation alone to be considered. In our considered view, the learned Tribunal has given a categorical finding that the claim for depreciation made by the assessee has to be considered and for such purpose the matter has been restored to the file of the Assessing Officer. Admittedly, before the Assessing Officer such a plea was not raised as the assessee contended that the expenditure was revenue in nature. No doubt, before the CIT(A) an alternative plea was r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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