1 901.itxa1164.13.doc sbw IN HIGH COURT OF JUDICATURE AT BOMBAY rt ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.1164 OF 2013 ou Commissioner of Income Tax LTU ..Appellant Versus Indian Petrochemicals Corporation Ltd. ..Respondent C ........... Mr. Suresh Kumar a/w Ms. Padma Divakar for Appellant. Mr. J. D. Mistri, Senior Counsel, a/w Raj Darak & P. C. Tripathi for Respondent. h ........... igCORAM: S. C. DHARMADHIKARI AND A. K. MENON, JJ. H DATE : 8th APRIL, 2015. P.C.: y As far as question no.(A) and (D) is concerned, there is no ba difficulty in following our order passed today in Income Tax Appeal No.1169 of 2013, therefore, question no.(A) and (D) deserve om admission. 2] Appeal is dismissed in so far as question no.(B) is concerned. B 3] As far as question no.(C) is concerned, same pertains to claim of depreciation in sum of Rs.1,92,95,000/ on cost of jetty. 4] In so far as this question is concerned, same reads as under: 1/5 ::: Downloaded on - 17/08/2015 17:23:54 ::: 2 901.itxa1164.13.doc Whether on facts and in and circumstances of case and in law, ITAT was right in allowing depreciation rt amounting to Rs.1,92,95,000/ on cost of jetty which ou depreciation was disallowed by Assessing Officer as being attributable to amount conceded by Gujarat Maritime Board by way of rebate on lending and shipping C fees and portage charges and was thus required to be reduced from cost of construction of jetty? h 5] What Tribunal has noted is that jetty rebate is made ig available by Gujarat Maritime Board. It is not gratis but only because Assessee has met cost of construction of jetty. That rebate H would go to reduce cost of construction of jetty on which Assessee is claiming depreciation over all these years. rebate will y be available to this assessee only till such time as it aggregates to cost ba of construction of jetty. Therefore, it cannot take argument on one hand that jetty does not belong to it and belongs to Gujarat om Maritime Board while it capitalized cost of construction of jetty in its books of account and continued to claim depreciation on same B from year to year. That is why Commissioner of Income Tax (Appeals) agreed with Assessing Officer. 6] assessee pointed out that Gujarat Maritime Board had 2/5 ::: Downloaded on - 17/08/2015 17:23:54 ::: 3 901.itxa1164.13.doc allowed rebate but that does not mean anything enhancing profit. rt entire income, therefore, was offered to tax. depreciation has been claimed since assessment year 1997 98 onwards and same has ou been allowed. It is only in assessment year under consideration, namely, 2004 05 that it is disallowed. assessee, therefore, placed C reliance upon view taken by Tribunal's, Mumbai Bench, in case of sister concern of assessee company in Income Tax Appeal h Nos.1743 to 1745/Mum/2007 for assessment years 2000 01 and 2002 ig 03. (Reliance Ports and Terminal V/s. Deputy Commissioner of Income H Tax decided on 26th November, 2007). Tribunal allowed claim for depreciation on cost incurred by assessee on construction of jetties by treating expenditure as part of block of intangible assets. y ba Tribunal has in para 87 of impugned order held that present assessee is identically situated. claim is of identical nature. om question is similar to that considered and decided in case of Reliance Ports (supra). Before us it is not disputed that view taken in case of Reliance Ports and Tribunal's decision in that behalf has not been B challenged by Revenue either in this Court nor was it questioned at any time before High Court of Gujarat at Ahmedabad. 7] In circumstances, we are not in agreement with Mr. Suresh 3/5 ::: Downloaded on - 17/08/2015 17:23:54 ::: 4 901.itxa1164.13.doc Kumar that question no.(C) is substantial question of law. rt 8] Thus, following our order passed in Income Tax Appeal No.1169 of ou 2013, we proceed to admit this Appeal on question Nos.(A) and (D) which reads as under: C (A) Whether on facts and in th circumstances of case and in law, ITAT was right in holding that notional sales tax exemption amount of Rs.50,32,63,379/ is capital h receipt not liable to income tax? ig (D) Whether on facts and in circumstances of case and in law, ITAT was right in allowing as revenue H deduction th contribution of Rs.46,37,295/ made by assessee company to various clubs ran by and meant for staff and their families at various places even though such y expenditure was not allowable under section 40A(9) of ba Income Tax Act?" 9] Appeal is dismissed with regard to question nos.(B) and (C). om 10] Assessee waives service. 11] Registrar (Judicial)/Registrar, High Court, Original Side, B Bombay to ensure that original record in relation to this Appeal is summoned from Tribunal and offered for inspection of parties. This paper book is treated sufficient for purpose of admission of this 4/5 ::: Downloaded on - 17/08/2015 17:23:54 ::: 5 901.itxa1164.13.doc Appeal. However, Registry must further ensure preparation of rt complete paper book in accordance with Rules. Registry in first instance must send intimation of admission of this Appeal enclosing ou therewith copy of this order so as to enable Tribunal to act accordingly. C h (A. K. MENON, J.) ig (S. C. DHARMADHIKARI, J.) H wadhwa y ba om B 5/5 ::: Downloaded on - 17/08/2015 17:23:54 ::: The Commissioner of Income Tax­-LTU v. Indian Petrochemicals Corporation Ltd