Ita/1805/2009 Of M/S.international Business Services Grou v. The Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 4TH OCTOBER 2010 / 12TH ASWINA 1932 ITA.No. 1805 of 2009() -------------------------------- ITA.849/COCH/2007 of INCOME TAX APPELLATE TRIBUNAL,COCHIN BENCH .................... APPELLANT/RESPONDENT ---------------------------------------- M/S INTERNATIONAL BUSINESS SERVICES GROUP PVT.LTD, TRIVANDRUM, REP. BY POWER OF ATTORNEY HOLDER AJMAL KHAN, S/O.SHAHUL HAMID, CA 81, RIVIRA RETREAT APARTMENTS, THEVARA, COCHIN. BY ADV. SRI.P.BALAKRISHNAN. RESPONDENT/APPELLANT ---------------------------------------- THE COMMISSIONER OF INCOME TAX, CENTRAL, TRIVANDRUM. BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX. THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 04/10/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. C.N.RAMACHANDRAN NAIR &K. SURENDRA MOHAN, JJ. ------------------------------------------------------------ I.T.A. NO:1805 OF 2009 ----------------------------------------------------------- Dated this the 4[th] October, 2010. JUDGMENT Ramachandran Nair, J. During hearing of this appeal, the counsel for the assesseebrought to our notice a notice issued by the Assessing Officerunder Section 148 proposing to reopen the assessment to bring tothe entire income received under non-competition agreement underSection 28(v)(a) of the Income Tax Act. The details as to whetherincome is accounted on accrual basis or on cash basis and thedates and the order in which the amounts were received are notclear from the orders issued for this year. In any case in view ofthe proposal of the Assessing Officer for reopening earlier year'sassessments, we feel in order to facilitate it the assessment for thisyear also can be set aside and remanded to the Assessing Officerfor consideration along with the assessments reopened for otheryears. Accordingly appeal is allowed by setting aside the order ofthe Tribunal and that of the lower authorities and we remand theissue to the Assessing Officer for reconsideration along with ITA 1805/2009 assessments reopened for the preceding years for considering income received under the non-competition agreement. 2. The next question raised is assessee's claim for depreciation in respect of furniture and fixtures etc provided in thebuilding given on rent by the assessee. The Tribunal took the viewthat assessee is not entitled to depreciation because there is noscope for granting depreciation in the assessment of income underthe head property. We do not find any ground to interfere with theTribunal's finding because the furniture and other articles inrespect of which depreciation is claimed are not used in businessbut are facilities provided in a rented out building. Consequentlythe appeal on this issue is dismissed. C.N.RAMACHANDRAN NAIR Judge jj K. SURENDRA MOHANJudgeJudge