Itxa/523/2012 Of The Commissioner Of Income Tax -16 v. M/S. Metro Motor Auto Division

sas IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.523 OF 2012 Commissioner of Income Tax-16, Mumbai ..Appellant. V/s. M/s. Metro Motor Auto Division ..Respondent. Mr.A.R.Malhotra with Mr.N.A.Kazi for the appellant. Mr.Nitesh Joshi i/b. Khaitan & Co. for the respondent. CORAM : S.C.DHARMADHIKARI AND A.K. MENON, JJ. DATED : 28TH AUGUST, 2014 P.C. :- 1.The Tribunal while dismissing the revenue's appeal by order dated 9[th] September, 2011 has confirmed the order of the Commissioner of Income Tax (Appeals) dated 5[th] February, 2010. The assessment year is 2002-03. 2.The ground raised by the revenue is the deletion of disallowance of Rs.40,00,000/- being the amount paid to the assessee as non compete fees by Bombay Metro Motors Limited. The payment of non compete fees was also a ground raised for assessment years 2000-01 and 2001-02. The Tribunal held that such expenditure is deductible in both years and orders to that effect are dated 29[th] May, 2007 and 30[th] April, 2008. 3.Mr.Malhotra, learned counsel appearing on behalf of the revenue submits that the revenue challenged these orders by filing appeals in this Court, being Income Tax Appeal No.1519 of 2007 and Income Tax Appeal No.2073 of 2009. 4.Mr.Malhotra submits that these appeals are dismissed by this Court by relying upon the order dated 4[th] December, 2007 in Income Tax Appeal No.64 of 2005 [The Commissioner of Income Tax, Central III, Mumbai V/s. Narendra D. Desai]. That order has no relevance to the issue in question because that was a claim arising out of receipt of non compete fees and not payment. Mr.Malhotra however fairly concedes that the revenue brought a Review Petition seeking a review of the order passed in Income Tax Appeal No.2073 of 2009, but that review petition has been dismissed on technical grounds. 5.Mr.Joshi, learned counsel appearing on behalf of the assessee submits that the revenue had sought relief for reviewing the orders passed by the Court in relation to some assessee in Income Tax Appeal No.1519 of 2007 and it was allowed to be dismissed for want of prosecution. No attempt has been made to recall that order. 6.After hearing both the sides and perusing the order of the assessing officer and the Tribunal, we are of the opinion that the issue was factual and in relation to the same assessee. The disallowance issue was raised and the factual position for the prior assessment years and for the assessment year in question were identical. In the absence of any distinguishing features being brought by the revenue, the Tribunal did not commit an error of law apparent on the face of record or perversity in following and applying its earlier views. The appeal, therefore, does not raise any substantial question of law and hence it is dismissed. No costs. (A.K. MENON, J.) (S.C.DHARMADHIKARI, J.)