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TMI Blog2022 (4) TMI 1590X X X X Extracts X X X X X X X X Extracts X X X X ..... was selected for scrutiny and an assessment under section 143(3) determining total income at Rs. 66,13,60,973/- was made on 31/03/2015 interalia making several additions. On appeal, the Ld.CIT(A) decided some of the issues in favour of the assessee and some in favour of the Revenue. Aggrieved by the order of the Ld.CIT(A), both, assessee and the Revenue have filed appeals, raising the following grounds in their respective appeal:- Revenue - ITA No. 4515/Mum/2017 1. "On the facts and in the circumstances of the case, the Ld. CIT(A) erred in deleting the Disallowance of Rs 1,63,15,111/- being the expenditure on software treated as capital expenditure merely relying on the decision of his Id. Predecessors without considering the genuine fact of the case". 2. "On the facts and in the circumstances of the case, the Ld. CIT(A) erred in deleting the addition Rs. 1,50,00,000/- being income from toll road, merely relying on the decision of his Id. Predecessors without considering the genuine fact of the case." 3. "On the facts and in the circumstances of the case, the Ld. CIT(A) erred in deleting the Disallowance of Rs. 47,19,084/- being the payments made to clubs expenditure merely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the facts & circumstances of the case the appellant submit that the disallowance of Rs. 14,40,67,000/- being the administrative 7 establishment expenses is not justified and the said disallowance may be deleted." 3. At the time of hearing both the parties have agreed that the grounds raised in both the appeals are covered by earlier decisions of this Tribunal. Therefore, keeping this in mind, we proceed further to dispose of the appeals:- Revenue's appeal: 4. Starting with the appeal filed by the Revenue, the first issue in the appeal pertains to disallowance of software expenses. The Assessing Officer, based on the addition made by the him for the assessment years 2004-05, 2006-07, 2007- 08, 2008-09, 2009-10 & 2010-11 has held the software development expenses of Rs. 1,63,15,111/- incurred in respect of the following, as capital expenditure :- i. Software purchase Rs. 78,77,490/- ii. Software upgradation charges Rs. 84,37,621/- Total Rs. 1,63,15,111/- On appeal, the Ld. CIT(A), following his predecessor's orders for AYs 2004-05 to 2011-12, decided the issue in favour of the assessee. Aggrieved, the Revenue is in appeal before the Tribunal, on this issue. 5. Upon hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore this Tribunal. 10. Upon hearing the parties, we note that this issue has been decided by the Tribunal in favour of the assessee for earlier years, i.e. A.Ys. 2004-05 to 2011-12. There is no change in the facts and circumstances of the issue. Therefore, being consistent with earlier orders of the co-ordinates benches, we allow this ground raised by the assessee. Ground 1 of the appeal is allowed. 11. With regarding to grounds. 2 & 3 which pertain to depreciation on toll road, the facts in brief are that the Assessing Officer disallowed the depreciation claimed on toll road on the ground that the ownership of the toll road vests with the government and, therefore, the assessee is not the owner of the same. On appeal, the Ld.CIT(A) confirmed the disallowance in view of the judgement of the Hon'ble jurisdictional High Court in the case of North Karnataka Expressway Ltd vs CIT (2015) 372 ITR 145 (Bom), wherein it was held that the toll roads are built on land owned by the Government and that this decision was followed in the case of CIT vs West Gujarat Expressway Ltd (2017) 390 ITR 400 (Bom). The Ld.CIT(A) also found support from the decision of this Tribunal in the case of DCIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to follow the order the Tribunal for the A. Y. 2004-05 and for the A. Y. 2005-06 to A. Y. 2007-08 and decide accordingly. This ground is allowed for statistical purpose." There is no change in the facts and circumstances of the case on this issue. Therefore, consistent with the earlier decisions of the Tribunal, we restore the issue to the file of the Assessing Officer to decide the same anew in line with the earlier directions of the Tribunal. This ground is allowed, for statistical purpose. 13. Grounds 4 to 7 pertain to disallowance under section 14A read with rule 8D of I.T. Rules, 1962. 14. Heard rival submissions. The Ld.AR of the assessee submitted that this Tribunal, for the assessment years 2004-05 to 2011-12, has restored the issue back to the file of the Assessing officer for decision afresh. The Ld.DR agreed to the proposition. We find that the Tribunal, for the assessment years 2010-11 and 2011-12 has restored the issue to the file of the Assessing Officer to follow the following directions issued by the Tribunal for the assessment years 2004-05 and 2005-06 to 2007-08: "11. Ld. Counsel for the assesses submitted that Ground No. 3 of grounds of appeal is relatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the light of our observations before the lower authorities, falling which the authorities shall be at liberty to decide the same on the basis of available material on record. The assessee's grounds of appeals stand allowed for statistical purposes." 14. Similarly, the Tribunal for the A.Y. 2005-06 to A.Y. 2007-08 in ITA Nos. 3339/Mum/2011, ITA. No. 3340/Mum/2011 and 3341/Mum/2011 dated 30.04.2019 at Para No. 19 held as under: - "19. We have heard both the parties, perused materials available on record and gone through the orders of authorities below. The facts with regard to applicability of provisions of section 14A was not disputed by the assessee. The only dispute is with regard to quantification of average value of investment considering the investment made in group/associate concerns for strategic investment purpose and also the element of commercial expediency in making investment. We find that the Hon'ble Supreme Court in the case of Maopp Investment Ltd. vs CIT (supra) had considered the issue of disallowance of expenses incurred in relation to exempt income including interest in light of arguments of the assessees that strategic investments made in group/assoc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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