Itxa/1841/2017 Of The Pr. Commissioner Of Income Tax-3 v. V. Hotels Ltd. (Formerly Tulip Hospitality Services Ltd.)

Priya Soparkar 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL (IT) NO.1841 OF 2017 Pr.Commissioner of Income Tax-3 … Appellant V/s. V.Hotels Limited(Formerly Tulip HospitalityServices Limited)… Respondent--- Mr.A.R.Malhotra with Mr.N.A.Kazi, Advocates for theAppellant. Mr.Percy J. Pardiwalla, Senior Advocate with Mr.Atul K. Jasani,Advocates for the Respondent. --- CORAM : UJJAL BHUYAN & MILIND N. JADHAV, JJ. DATE : SEPTEMBER 21, 2020 P.C.:- 1.Heard Mr.Malhotra, learned standing counsel, revenueand Mr.Pardiwalla, learned senior counsel alongwith Mr.AtulJasani, learned counsel for the respondent/assessee. 2.This appeal has been filed by the revenue under section260A of the Income Tax Act, 1961 (briefly”the Act”hereinafter) against the order dated 26[th] August, 2016 passedby the Income Tax Appellate Tribunal, Mumbai Bench “F”,Mumbai (referred to as “the Tribunal” hereinafter) in ITA No.3191/Mum/2011 and ITA No.4215/Mum/2011, for theassessment year 2007-2008. Priya Soparkar 3.ITA No.3191/Mum/2011 was filed by the assesseewhereas ITA No.4215/Mum/2011 was filed by the revenue. 4.The two appeals were heard by the Tribunal alongwitha number of appeals filed by the same parties for theassessment years 2005-2006, 2006-2007 and 2008-2009. 5.As already noted above, the present appeal relates tothe assessment year 2007-2008. 6.The appeal has been preferred on the following twoquestions stated to be substantial questions of law:- “1.Whether on the facts and in thecircumstances of the case and in law, Tribunal isjustified in allowing depreciation of Rs.27,60,587.00 on Floor Space Index (FSI) @10% of total consideration, without appreciatingthat grant of additional FSI is not in the nature ofany kind of assets until and unless the additionalflooring/building is constructed, therefore, noteligible for depreciation in this case? 2.Whether on the facts and in thecircumstances of the case and in law, Tribunal isjustified in allowing depreciation amounting toRs.3,66,06,538.00 on intangible assets as claimedby the assessee?” 7.During the hearing on February 12, 2020, there wasconsensus at the Bar that in so far question No.2 is concerned,the same has already been answered by this Court in the caseof the assessee itself in Income Tax Appeal Nos.835 and 836of 2016, decided on 17[th] December, 2018, the onlydifference being that at that stage the assessee was knownas Tulip Hospitality Services Limited. It has been held that it Priya Soparkar 3itxa 1841-17 is not a substantial question of law. Thereafter, learnedcounsel for the parties were heard on question No.1. 8.In so far question No.1 is concerned, this issue hasbeen decided by us in the connected appeal i.e. Income TaxAppeal No.1734 of 2017 arising out of the same commonorder of the Tribunal for the assessment year 2006-2007. Ithas been held that no substantial question of law arises onthis issue from the order of the Tribunal. Following the saidorder we dismiss the present appeal of the revenue byholding that no substantial question of law arises from theorder of the Tribunal. 9.However, there shall be no order as to costs. 10.This order will be digitally signed by the PrivateSecretary/Personal Assistant of this Court. All concerned willact on production by fax or email of a digitally signed copyof this order. (MILIND N. JADHAV, J.) (UJJAL BHUYAN, J.)