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Income Tax Appellate Tribunal - Mumbai

Sodexo Food Solutions India P. Ltd, ... vs Acit 13(2)(1), Mumbai on 22 August, 2019

आयकरअपील यअ धकरण"जी" यायपीठमुंबईम ।

IN THE INCOME TAX APPELLATE TRIBUNAL "G" BENCH, MUMBAI ीश जीत दे , ाियक सद एवं ीमनोजकुमारअ वाल, ले खासद केसम ।

BEFORE SHRI SAKTIJIT DEY, JM AND SHRI MANOJ KUMAR AGGARWAL, AM M.A. No. 66/Mum/2019 [Arising Out of ITA No. 5781/Mum/2016] & M.A. No. 114/Mum/2019 [Arising Out of ITA No. 5707/Mum/2016] ( नधा रणवष / Assessment Year: 2011-12) Sodexo Food Solutions India Assistant Commissioner of Private Limited Income Tax-13(2)(1) st 1 Floor, Gemstar Commercial Complex बनाम/ Room No.146, 1st Floor Ramchandra Lane Extension Vs. AaykarBhavan, M.K.Road Kanchpada, Malad(W) Mumbai-400 064 Mumbai -400 020 थायीले खासं . /PAN : AAACR-2547-Q (अपीलाथ /Appellant) : ( !थ / Respondent) Assessee by : Shri Nimesh Vora, Ld. AR Revenue by : Shri Nishant Samaiya-Ld. DR सुनवाईकीतारीख/ : 14/06/2019 Date of Hearing घोषणाकीतारीख / : 22/08/2019 Date of Pronouncement आदे श / O R D E R Manoj Kumar Aggarwal (Accountant Member)

1. By way of these applications, the assessee seeks correction of certain errors / facts that are stated to have been crept in Tribunal's order for AY 2011-12 which has disposed-off the cross-appeals.

2.1 All the pleading under application are with respect to Ground No.3 of revenue's appeal ITA No. 5781/Mum/2016. The first error pointed out is stated to be in para 7.3 of the order wherein it has been observed that the entity namely Radhakrishna Hospitality Services Private Limitedwas taken over by the assessee company. The attention has been drawn to the fact that the stated entity, in fact, was renamed as Sodexo Food Solutions India Private Limited (assessee) and was taken over by Sodexo SA. We concur with the same since the correct facts have already been noted in para 7.4 of the order. The inadvertent error which has crept in paras 7.1 & 7.3 stand corrected to that extent. 2.2 The second plea raised in the application is that even if the payment to Shri Raju Shetewas held to be on account of non-compete fees, the same would still be allowable as revenue expenditure u/s 37(1) of the Act. Reliance was placed on several judicial pronouncements as cited during the hearing of the appeal. It has been submitted that those arguments have not been considered by the Tribunal while adjudicating the issue. Upon careful consideration, it is observed that issue of deduction u/s 37(1) has already been considered in paras 7.4 & 7.5 of the order and the matter has been restored back to the file of Ld. AO for re-adjudication in the light of acquisition agreement dated 10/03/2009. Needless to add that the assessee, while pleading for admissibility of the expenditure u/s 37(1), is free to rely on these decisions in the set-aside proceedings. Therefore, the order would require no interference, in this regard.

2.3 The Ld. AR, at the time of hearing, vide letter dated 24/06/2019, placed on record the evidence for payment made by Sodexo SA to Shri Raju Shete towards non-compete fees of USD 6 Lacs pursuant to Clause 8.5 of the Agreement dated 10/03/2009. Since this document has been produced for the first time, the same may also be considered by Ld. AO in the set-aside proceedings.

2.4 The last plea raised by the assessee is the fact that additional alternative ground raised for allowability of depreciation u/s 32 on non- compete fees has not been adjudicated. We find that this alternative ground was not brought to the attention of the bench during hearing of the appeal. Nevertheless, the assessee is free to raise the same in the set-aside proceedings. No prejudice, in our opinion, would be caused to the assessee, on this account since the matter is already in the domain of Ld. AO. Therefore, the order would require no interference, in this regard.

2.5 The application stands partly allowed to the extent indicated hereinabove.

3. This application is mere repetition of last plea raised in MA No. 66/Mum/2019 and the assessee seeks recall of the order to the extent of re-adjudicating the same. However, our observation on the same has already been given in preceding para 2.4 above. Therefore, the application stand dismissed.

Conclusion

4. MA No. 66/Mum/2019 stand partly allowed whereas MA No. 114/Mum/2019 stands dismissed.

Order pronounced in the open court on 22nd August, 2019.

       Sd/-                                           Sd/-
    (Saktijit Dey)                            (Manoj Kumar Aggarwal)
  ाियकसद  / Judicial Member                 लेखासद  / Accountant Member

मुंबई Mumbai; िदनां कDated : 22/08/2019 Sr.PS:-Jaisy Varghese आदे शकी ितिलिपअ ेिषत/Copy of the Order forwarded to :

1. अपीलाथ / The Appellant

2. !थ / The Respondent

3. आयकरआयु (अपील) / The CIT(A)

4. आयकरआयु / CIT- concerned

5. िवभागीय ितिनिध, आयकरअपीलीयअिधकरण, मुंबई/ DR, ITAT, Mumbai

6. गाड- फाईल / Guard File आदे शानुसार/ BY ORDER, उप/सहायकपंजीकार (Dy./Asstt.Registrar) आयकरअपीलीयअिधकरण, मुंबई / ITAT, Mumbai.