ITXA 508 2001.odt IN HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 508 OF 2001 Commissioner of Income tax, Bombay ... Appellant Vs. Venus Records & Tapes (P) Ltd. ... Respondents WITH INCOME TAX APPEAL NO. 1010 OF 2007 Commissioner of Income Tax Appellant Vs. Venus Records & Tapes (P) Ltd. Respondent ...... Mr. Suresh Kumar a/w Ms. Samiksha Kanani for Appellant. Mr. Deepak Tralshawala a/w Mr. V.S. Hadade for Respondent. ...... CORAM : S. C. DHARMADHIKARI & SMT. VIBHA KANKANWADI, JJ. DATE : AUGUST 28, 2017. P.C. : 1. Appeal bearing ITXA No.508 of 2001 challenges order passed by Income Tax Appellate Tribunal, Bench at Mumbai, dated 1st May, 2001. 2. assessment year is 1996 1997. 3. assessment order was passed by Assessing Officer on 18th March, 1999, allowing expenditure for acquisition of copyrights only to extent of 1/14th of such expenditure under ::: Uploaded on - 31/08/2017 ::: Downloaded on - 02/09/2017 09:37:50 ::: vikrant 2/6 2 ITXA 508 2001.odt Section 35A of Income Tax Act, 1961. appeal was preferred before First Appellate Authority and Commissioner of Income Tax (Appeals), on 20th December, 1999, set aside order of Assessing Officer and allowed claim of assessee. CIT(A) followed order Tribunal in that behalf. It is this order of CIT(A) which stands confirmed by Tribunal. 4. Tribunal, in dismissing appeal of Revenue, followed its own order for assessment years 1991 1992, 1992 1993 and 1993 1994. Pages 35 and 36 of paper book (running page 4 of impugned order) would establish and prove this fact. 5. It is clear that for above assessment years, common order was passed on 14th September, 1998 by Tribunal and when Tribunal was requested to refer questions of law arising from that order, it made such reference by it's order dated 2nd September, 1999. Copy of this order is at annexure 'D' (Page 37 of paper book). Tribunal referred following question of law for opinion and answer by this Court: Whether on facts and in circumstances of case, Tribunal was right in law in holding that expenditure incurred by assessee for acquisition of re recording rights from film producers was revenue expenditure and not expenditure on acquisition of patent rights or copy rights within meaning of sec.35A? ::: Uploaded on - 31/08/2017 ::: Downloaded on - 02/09/2017 09:37:50 ::: vikrant 3/6 2 ITXA 508 2001.odt 6. Mr. Suresh Kumar, learned Advocate appearing in support of present Appeal, had sought adjournment on earlier occasion. adjournment was sought with view to inform this Court as to what was outcome of reference made by Tribunal to this Court and on above question of law. 7. We granted time to Mr. Suresh Kumar on 21 st August, 2017. Earlier also adjournment was sought by Revenue on this count. 8. From record, Mr. Suresh Kumar fairly brings to our notice, order dated 5th August, 2016, disposing of Income Tax Reference No.879 of 1998 alongwith other References, where identical question was raised. 9. This Court passed following order on 5th August, 2016. These References pertaining to years 1998 and 2000, were on board on 22nd July, 2016. At that time, we passed following order: These References on board, pertain to years 2000 and prior thereto. 2. Central Board of Direct Tax has issued Clarification dated 8th March, 2016 wherein earlier Circular No.21 of 2015 dated 10 th December, 2015 was made applicable to pending References. Therefore, Officers of Revenue would not now press pending References before this Court where tax effect involved is less than Rs.20 lakhs. ::: Uploaded on - 31/08/2017 ::: Downloaded on - 02/09/2017 09:37:50 ::: vikrant 4/6 2 ITXA 508 2001.odt 3. Revenue is directed to examine each of above References and ascertain tax effect involved in each of them. Thereafter, file affidavit, indicating References where tax effect involved is less than Rs.20 lakhs. Affidavit should be filed on or before next date i.e. 29th July, 2016. These References which have tax effect of less that Rs.20 lakhs, would be covered by above Circular. 4. It is made clear that in case aforesaid exercise is not done, then we maybe constrained to return all above References un answered. 5. All above References to be on board on th 29 July, 2016 under caption for final disposal . 2. Today none appears on behalf of Revenue. It appears that Revenue is not interested in pursuing aforesaid References. We had specifically stated in our order dated 22nd July, 2016 that in case exercise of finding out tax effect in pending References is not done by Revenue, we may be constrained to return References un answered. In above view, aforesaid References are returned un answered. 3. However, it is made clear that question raised in these References for our opinion are left open for consideration in appropriate Reference/Proceedings. 4. All References returned un answered as aforesaid. No order as to costs. 10. Then, Mr. Suresh Kumar relies upon communication with department and response on 1st September, 2016 ::: Uploaded on - 31/08/2017 ::: Downloaded on - 02/09/2017 09:37:50 ::: vikrant 5/6 2 ITXA 508 2001.odt from office of Assistant Commissioner of Income Tax 16(1), Mumbai to Pr. Commissioner of Income Tax 16, Mumbai. Mr. Suresh Kumar fairly submits that Revenue has accepted order dated 5th August, 2016 reproduced above. 11. References were, therefore, disposed of. That was essentially considering Revenue impact. 12. Once questions of law were not answered by this Court though referred, principally going by tax effect, then, in absence of any controverting materials or contrary facts, we do not think that this Income Tax Appeal can survive. Income Tax Appeal No.508 of 2001 on our board came to be admitted only because of pending References. It is in these circumstances, we dispose of this Income Tax Appeal as well. It is disposed of accordingly. 13. Income Tax Appeal No. 1010 of 2007 is also dismissed because Assistant Commissioner of Income Tax found that records indicate that in relation to same assessee for assessment year 1997 1998, Income Tax Appellate Tribunal had passed order in Appeal No.334/Mum/2001. Revenue's appeal to this Court against order of Tribunal for this assessment year was dismissed as time barred. dismissal of this appeal as time barred was not challenged in Hon'ble Supreme Court. Therefore, Hon'ble Supreme Court having not been approached and this Court's order being accepted, all ::: Uploaded on - 31/08/2017 ::: Downloaded on - 02/09/2017 09:37:50 ::: vikrant 6/6 2 ITXA 508 2001.odt more, we are disinclined to interfere in our appellate jurisdiction. We keep question of law open for being answered in appropriate proceeding. (SMT. VIBHA KANKANWADI, J.) (S. C. DHARMADHIKARI, J.) ::: Uploaded on - 31/08/2017 ::: Downloaded on - 02/09/2017 09:37:50 ::: TheCommissionerofIncome-tax,Bombay v. VenusRecords&Tapes(P)Ltd