Commissioner Of Income Tax-V v. New Delhi Television Ltd

*2,3 + IN THE HIGH COURT OF DELHI AT NEW DELHI ITA 366/2016 COMMISSIONER OF INCOME TAX-V .....AppellantThrough: Mr. Rahul Chaudhary, Advocate. .....Appellant versus NEW DELHI TELEVISION LTD Respondent Through: Mr. Prakash Kumar with Ms. MehvishKhan, Advocates. And + ^ ITA 367/2016 COMMISSIONER OF INCOME TAX-V OF INCOME TAX-V INCOME TAX-V TAX-V AppellantThrough: Mr. Rahul Chaudhary, Advocate. versus NEW DELHI TELEVISION LTD LTD RespondentThrough: Mr. Prakash Kumar with Ms. MehvishKhan, Advocates. CORAM: JUSTICE S.MURALIDHARJUSTICE NAJMIWAZIRI % ORDER 12.07.2016 CM APPL No. 23809/2016 (exemption! in ITA 367/2016 1. Allowed subject to all just exemptions. CM APPL No. 23808/2016 (delav^ in ITA 366/2016CM APPL No. 23810/2016 Tdelav^ in ITA 367/2016 2. There is a delay of 592 days in re-filing the appeals. The explanationoffered is the standard one regarding the practice directions issued by thisCourt for e-filing of the appeals. As has already been observed by this Courtin several orders, the practice directions were issued after consultation withthe bar and after giving sufficient time for the bar to get acquainted with therequirement of e-filing. Additionally, the Court has also provided scanningmachines at the filing counter so that no difficulty is caused to the bar forswitching over to the system of e-filing. In any event, the delay of over oneand a half year on this ground is wholly unacceptable. Consequently, theCourt is not persuaded to condone the extraordinary delay of 592 days in refiling the appeals. 3. The applications bearing CM Application Nos. 23808/2016 &23810/2016 for condonation of the delay of 592 days in re-filing the appealsare dismissed. ITA 366/2016 & ITA 367/2016 4. Nevertheless the appeals have also been examined on merits. 5. These appeals by the Revenue are directed against the common orderdated 20th December 2013 in ITA Nos. 852 and 942/Del/2012 forAssessment Year (AY) 2006-07. 6. The issue in ITA No.366/2016 concerns the disallowance by the Assessing Officer (AO) of the expenses incurred by the Assessee on accountof the Employees Stock Option Plan ('ESOP'). The ITAT reversed the AOand deleted the disallowance in light of the decision of the Special Bench ofthe ITAT (Bangalore) in Biocon Limited v. DCIT (LTU), Bangalore (2013)35 taxmann.com 335 (Bangalore-Trib.) (SB). 7. As far as this issue is concerned, it is pointed out by the learned counselfor the Assessee that the issue stands covered in favour of the Assessee andagainst the Revenue by the order of this Court dated IS**" August, 2015 inITA No. 107/2015 (Commissioner of Income Tax v. Lemon Tree Hotels).The Court had affirmed the order of the ITAT deciding the issue in favour ofthe Assessee in the said case where the addition made by the AO by way ofdisallowance of the expenses debited as cost of ESOP in profit and lossaccount was deleted by the ITAT. 8. In the present case, the ITAT has by the impugned order restored thematter to the file of the AO for re-adjudication. The impugned order of theITAT is consistent with what has been held by this Court in Commissionerof Income Tax v. Lemon Tree Hotels {supra). Consequently, no substantialquestion of law arises as far as this issue is concerned. 9. The second issue which pertains to ITA No.367/2016 is whether thesoftware expenses are required to be treated as capital expenditure as heldby the AO or revenue expenditure as pleaded by the Assessee and acceptedby the ITAT? 10. The ITAT has in the impugned order placed reliance on the decision of this Court in CIT v. Asahi India Safety Glass Ltd. (2011) 245 CTR 529.The Revenue has made a reference to the Special Leave Petition (SLP) filedby the Revenue against the said order. Learned counsel for the Assessee hashanded over a copy of the order dated 5^*^ July, 2012 passed by the SupremeCourt in CIT-I, New Delhi v. Asahi India Safety Glass Ltd., dismissing theRevenue's SLP filed against the aforementioned judgment. 9. The second issue which pertains to ITA No.367/2016 is whether thesoftware expenses are required to be treated as capital expenditure as heldby the AO or revenue expenditure as pleaded by the Assessee and acceptedby the ITAT? 10. The ITAT has in the impugned order placed reliance on the decision of this Court in CIT v. Asahi India Safety Glass Ltd. (2011) 245 CTR 529.The Revenue has made a reference to the Special Leave Petition (SLP) filedby the Revenue against the said order. Learned counsel for the Assessee hashanded over a copy of the order dated 5^*^ July, 2012 passed by the SupremeCourt in CIT-I, New Delhi v. Asahi India Safety Glass Ltd., dismissing theRevenue's SLP filed against the aforementioned judgment. 11. In that view of the matter, the impugned order of the ITAT on this issuedoes not give rise to any substantial question of law. 12. The appeals are accordingly dismissed both on account of delay inrefiling the appeals as well as on merits. S.MURALIDHAR, J JULY 12,2016b 'nesh NAJMIWAZIRI, J