Hindustan Foods Ltd v. The Assistant Commissioner Of Income Tax Circle (1), Panaji And Anr. …

mukund 1 txa 39.18 dt -2.7.18 IN THE HIGH COURT OF BOMBAY AT GOA TAX APPEAL NO.39 OF 2018 Hindustan Foods Ltd. Thr. Aut.Sign,Bhagwant Gaonkar …Petitioner. Versus The Assistant Commissioner of Income Tax Circle (1), Panaji and Anr. …. Respondents Mr. S.R.Rivankar with Mr. Sagar Rivankar, Advocates for the Petitioner. Ms.Susan Linhares, Standing Counsel for the Respondents. Coram : N.M. Jamdar & Prithviraj K. Chavan, JJ. Date : 2 July 2018. P.C.: By this appeal, the Appellant has challenged the orderpassed by the Income Tax Appellate Tribunal, Panaji dated 16 June2017. 2.The Appellant had filed his return of income for theassessment year 2008-09 on 24 September 2008 declaring a loss ofRs.63,50,518/-. The return was processed and one of the issues thatarose was regarding laying of cables as to whether the expensesincurred for the said was Capital in nature or Revenue Expenditure. mukund 2 txa 39.18 dt -2.7.18 The Assessing Officer passed an order on 12 November 2010.Thereafter the Appellant filed an appeal before the Commissioner ofIncome Tax (Appeals), which was dismissed by the Commissioner on25 October 2016. Thereafter the Appellant filed the Appeal bearingNo.ITA 25/PANAJI/2016 before the Income Tax Appellate Tribunal,Panaji. The Tribunal noting the fact that the issue regardingdepreciation and whether the amounts in question were the Revenueor the Capital Expenditure was conceded before the Assessing Officerby the representative of the Appellant, dismissed the appeal as issuehas been given up. 2.The learned counsel for the Appellant submits that therewas an duty on the part of the Assessing Officer, to determine thequestion irrespective of the concession of the representative of theassessee and in case of cement pipes, the law declared by the ApexCourt would show that the amounts are admissible as depreciation. 3.The question whether the expenses were Capital innature or Revenue in nature would depend on the nature of thebusiness and the nature of the activity on which the amount wasspent. This cannot be considered as a pure question of law, but isbased on the factual position also. Thus, if such a question which isessentially a factual question, is conceded by the assessee before theAssessment Officer, the learned Appellate Tribunal was not in error in mukund 3 txa 39.18 dt -2.7.18 refusing to consider the issue in view of the concession given by theassessee. We do not find that this approach taken by the Tribunal isillegal or beyond jurisdiction. No substantial question of law arises.The appeal is accordingly dismissed. Prithviraj K. Chavan, J.N.M. Jamdar, J.