Income Tax Appellate Tribunal - Delhi
Dcit, New Delhi vs M/S. Digital Radio (Mumbai) ... on 13 September, 2017
INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH "B": NEW DELHI
BEFORE SHRI I.C.SUDHIR, JUDICIAL MEMBER
AND
SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER
ITA No. 6254/Del/2014
(Assessment Year: 2010-11)
DCIT, Vs. Digital Radio (Mumbai)
Circle-10(1), Broadcasting Ltd,
New Delhi 401, Dadha House, 18/17,
WEA Karol Bagh, New Delhi
PAN:AABCR7871C
(Appellant) (Respondent)
Revenue by : Shri Anshu Prakash, Sr. DR
Assessee by: Shri Sanjiv Sapra, CA
Date of Hearing 04/09/2017
Date of pronouncement 13/09/2017
ORDER
PER PRASHANT MAHARISHI, A. M.
1. This is an appeal filed by the Revenue against the order of the ld CIT(A)-XIII, New Delhi dated 08.09.2014 for the Assessment Year 2010-11.
2. The Revenue has the following grounds of appeal:-
"1. On the facts and in the circumstances of the case the ld CIT(A) has erred in directing to allow addition of Rs. 26376542/- on account of lincese fee, without considering that the assessee had not made any such claim in the return of income and has also not accepted for decision of the CIT(A) in the Assessment Year 2006-07 on this time and the matter in still pending for adjudication before the Hon'ble ITAT in that year.
2. On the fact and in the circumstances of the case the ld CIT(A) has erred in deciding the issue by passing rectification order u/s 154 of the Act,, which is not proper, as the issue involved application of mind and there was no mistake."
3. Briefly stated the facts are that assessee is a company which is engaged in the business of FM broadcasting, filed its return of income on 30/09/2010 showing income of Rs. 42053788/-. The assessment under section 143 (3) of the Income tax act was passed on 18/02/2013 wherein the Ld. AO despite order of the Ld. CIT A, did not allow the deduction of 1/10 of the license fee as matter was pending before the coordinate bench. Therefore aggrieved by the order of the Ld. assessing officer the assessee preferred appeal before the Ld. CIT-A. Vide order dated 08/09/2014 the Ld. CIT appeal directed the Ld. assessing officer to allow deduction of Rs. 1776600 being 1/10 of Rs. 17765995/- which is deductible Page 2 of 3 expenditure under section 35ABB of the income tax act. The revenue Aggrieved by the order of the Ld. CIT - A, has preferred an appeal before us raising the ground that CIT has erred in directing to allow the deduction of Rs. 26376542/- on account of licensees without considering that the assessee has not made any such claim in the return of income and revenue has also not accepted the decision of the Ld. CIT A, in the assessment year 2006 - 07, which was pending before the coordinate bench.
4. The Ld. departmental representative repeated the same argument and submitted what is stated in the grounds of appeal. Ld. authorized representative submitted that now the coordinate bench has decided the issue vide its order dated 24/11/2015 which has been further confirmed by the Hon'ble Delhi High Court vide order dated 24/05/2017. He therefore submitted that now the matter has become final and assessee is entitled to get the deduction of 1/10th of the total expenditure spread over 10 years of useful life of the licenses.
5. We have carefully considered the rival contention and also perused the orders of the lower authorities as well as the orders of the Hon'ble Delhi High Court in case of the assessee wherein the issue of section 35ABB has been decided holding that the amount equal to 1/10 of the total capital expenditure was allowed proportionately over 10 year period to the assessee. The Ld. CIT - A, has allowed the deduction. According to the decision of the coordinate bench, which the Hon'ble Delhi High Court affirmed. In view of this, we do not find any infirmity in the order of the Ld. first appellate authority in allowing the claim of the assessee. Further, the claim of the revenue that without being any claim in the return of income the Ld. 1st appellate authority has allowed the 1/10th deduction to the assessee. Now in the present case the claim was made before the Ld. assessing officer by the assessee however, it was not granted as it was not in return of income of assessee and therefore assessee went into appeal. The Hon'ble Delhi High Court in CIT versus Jay parabolic Springs Ltd 306 ITR 42 held that the condition of the claim in the return of income applies only to the assessing officer and not to the appellate authorities. Therefore, even the Ld. CIT appeal is also empowered to grant such deduction. In view of this, we do not find any infirmity in the order of the Ld. CIT (A) in allowing the claim of the assessee of 1/10 of the license expenditure. In the result ground No. 1 of the appeal of the revenue is dismissed.
6. The 2nd ground of appeal of the revenue was with respect to the passing of the order under section 154 of the income tax act by the Ld. CIT appeal on 08/09/2014 no arguments were advanced before us that how the mistake was not apparent from the record . As according to us the subsequent decision of the Page 3 of 3 Hon'ble high court constitute a mistake apparent from the record. Therefore, we do not find any infirmity in the order of the Ld. CIT.A, in passing order under section 154 of the act. Ground No. 2 of the appeal of the revenue is dismissed.
7. In the result appeal of the revenue is dismissed.
Order pronounced in the open court on13/09/2017.
-Sd/- -Sd/-
(I.C.SUDHIR) (PRASHANT MAHARISHI)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Dated: 13/09/2017
A K Keot
Copy forwarded to
1. Applicant
2. Respondent
3. CIT
4. CIT (A)
5. DR:ITAT
ASSISTANT REGISTRAR
ITAT, New Delhi